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MILLS, Judge. Following their convictions for trafficking in cannabis, Section 893.135, Florida Statutes (1981), Fernandez and Perez appeal the trial court’s order denying their motion to suppress. Because the record supports the trial court’s finding that Fernandez freely and voluntarily consented to the search of his vehicle, the judgments are affirmed. JOANOS and THOMPSON, JJ., concur. | 07-29-2022 | [
"MILLS, Judge. Following their convictions for trafficking in cannabis, Section 893.135, Florida Statutes (1981), Fernandez and Perez appeal the trial court’s order denying their motion to suppress. Because the record supports the trial court’s finding that Fernandez freely and voluntarily consented to the search of his vehicle, the judgments are affirmed. JOANOS and THOMPSON, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7526670/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Dear Senator Sparks: This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following questions: 1. May a municipality, or a Title 60 public trust whose sole beneficiary is a municipality, 1 engage in a program whereby a voluntary fee may be collected by the municipality in exchange for the potential future payment of funds to the fee payor to reimburse the fee payor for expenses and losses incurred as a result of a sanitary sewer backup into said payor's real property? 2. If a municipality, or a Title 60 public trust whose sole beneficiary is a municipality, engages in such a program would the muncipality be engaging in the provision of insurance? If so, would the municipality be subject to the jurisdiction and regulation of the Oklahoma Insurance Commission or any other federal or state regulation? 3. As part of the above-described program, could the municipality require, as a condition of acceptance of reimbursement under the program, the fee payor to waive or sign a release of its rights to recovery of said expenses or losses under Oklahoma common *Page 2 law, constitutional law and statutory law, including, but not limited to the Governmental Tort Claims Act? If so, would the release be effective and enforceable? Before analyzing your questions, an understanding of the potential liability of a municipality for damages to private property resulting from a sanitary sewer system backup is important. The Oklahoma Supreme Court has long established that a municipality can be held liable for damages resulting from sewer backups. The general rule is that where a municipal corporation assumes the control and management of its sewer system, which has been constructed by it and under its supervision, it is bound to use reasonable diligence and care to see that such sewer is not clogged with refuse and is liable for negligence in the performance of such duty to a property owner injured thereby after reasonable notice of the clogged condition of its sewer. City of Holdenville v. Moore, 293 P.2d 363, 366 (Okla. 1956). This liability, however, is limited. As noted in Moore, a municipality must receive "reasonable notice of the clogged condition" before it can be found liable for negligence. Id. In addition, the Oklahoma Governmental Tort Claims Act ("GTCA") adopts the doctrine of sovereign immunity for the State, its political subdivisions and its employees acting within the scope of their employment. 51 Ohio St. 2001, § 152.1[51-152.1](A). The definition of a "political subdivision" under the GTCA includes both "a municipality" and "a public trust where the sole beneficiary or beneficiaries are a city, town, school district or county." 51 O.S.Supp. 2008, § 152[51-152](10)(a), (d). This sovereign immunity is waived "only to the extent and in the manner provided in this act." 51 Ohio St. 2001, § 152.1[51-152.1](B). Under the GTCA: A. The state or a political subdivision shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment subject to the limitations and exceptions specified in this act and only where the state or political subdivision, if a private person or entity, would be liable for money damages under the laws of this state. The state or a political subdivision shall not be liable under the provisions of this act for any act or omission of an employee acting outside the scope of his employment. B. The liability of the state or political subdivision under this act shall be exclusive and in place of all other liability of the state, a political subdivision or employee at common law or otherwise. Id. § 153. Thus, the sovereign immunity of a municipality is waived only to the extent allowed in the GTCA and its liability is limited to that allowed under that Act. The first issue to examine is whether a municipality may indemnify private property owners who pay a voluntary fee to the city for property damage outside of statutory remedies. A *Page 3 municipality has several constitutional and statutory powers. The Oklahoma Constitution allows a municipality "the right to engage in any business or enterprise which may be engaged in by a person, firm, or corporation by virtue of a franchise from said corporation." OKLA. CONST. art. XVIII, § 6.2 The Oklahoma Constitution, however, does not provide a municipality the right to engage in any type of business but only those businesses which may be "engaged in . . . by virtue of afranchise" from the municipality. Id. (emphasis added). In OklahomaElectric Cooperative v. Oklahoma Gas and Electric Co., 982 P.2d 512 (Okla. 1999), the Oklahoma Supreme Court pointed out that the definition of "franchise," while not defined in the Oklahoma Constitution, has been adopted by the court as follows: The word "franchise" is generally used to designate a right or privilege conferred by law. To be a "franchise" the right possessed must be such as cannot be exercised without the express permission of the sovereign power. It is the privilege of doing that which does not belong to the citizens of the country generally by common right. . . . . [T]he term franchise . . . means the right granted by the state or a municipality to an existing corporation or individual to do certain things which a corporation or individual otherwise cannot do, such as the right to use the street . . . to erect thereon poles and wires . . . for electric light purposes. Id. at 514-15 (quoting Okla. Gas Elec. Co. v. Total Energy,499 P.2d 917, 921 (Okla. 1972)). Thus, under this article of the Oklahoma Constitution, a municipality may only engage in businesses that involve the traditional activities of a municipality, those activities which are generally not available to corporations and private citizens. In addition, the Legislature has provided municipalities the power to: *Page 4 4. Make all contracts and do all other acts in relation to the property and affairs of the municipality, necessary to the good government of the municipality, and to the exercise of its corporate and administrative powers; and 5. Exercise such other powers as are or may be conferred by law. 11 Ohio St. 2001, § 22-101[11-22-101]. "A municipal corporation possesses and can exercise only those powers granted in express words, those necessarily or fairly implied or incidental to the powers expressly granted, and those essential to the declared objects and purposes of the corporation." Dev. Indus., Inc. v. City of Norman, 412 P.2d 953, 956 (Okla. 1966). Therefore, a municipality can indemnify private property owners, whether through a third-party insurer or through its own program, only if the power to do so has been expressly granted to it or can be fairly implied. Accordingly, if a municipality does not have the power to provide insurance to private property owners through a third-party insurer, it does not have the power to become an insurer for private-property owners on its own. A review of statutes finds that a municipality has the power to self-insure against liabilities. 51 O.S.Supp. 2008, § 167[51-167](B)(1). In addition, a political subdivision may be liable, even if otherwise exempt under the GTCA, "on an insured risk to the extent of coverage under liability insurance." Herweg v. Bd. of Educ., 673 P.2d 154, 156 (Okla. 1983). The question of a municipality insuring itself, however, is not the same as whether a municipality may provide insurance to private parties. Under the Insurance Code, "`[i]nsurance' is a contract whereby one undertakes to indemnify another or to pay a specified amount upon determinable contingencies." 36 Ohio St. 2001, § 102[36-102]. An "insurer" is "every person3 engaged in the business of making contracts of insurance or indemnity." Id. § 103(A) (footnote added). Specifically, "`property insurance' is insurance on real or personal property of every kind and interest therein, against loss or damage from any or all hazard or cause, and against loss consequential upon such loss or damage." Id. § 704. Thus, in the scenario presented in your questions, the municipality would be the "one who undertakes to indemnify," the property owner would the party indemnified, and the "loss or damage" indemnified against would be damages caused by a sewer backup. This type of arrangement would make the municipality an insurer under the Insurance Code, with the municipality providing property insurance against the losses of a private property owner related to sanitary sewer backups. Therefore, the program you ask *Page 5 about is not insurance benefitting the municipality, but insurance benefitting a private-property owner. We found no constitutional or statutory authority that would allow a municipality to become an insurer for private parties against property damage resulting from a sanitary-sewer backup.4 In addition, the liability of a municipality to private property owners is limited to what is available under the GTCA.5 Therefore, a municipality has no authority to be an insurer of private property for the benefit of a private property owner. Because a municipality cannot enter into this type of arrangement, we need not answer your remaining questions. It is, therefore, the official Opinion of the Attorney Generalthat: 1. A municipality, or a Title 60 public trust with a municipality as its sole beneficiary, has no authority to establish a program where private property owners may voluntarily make payments to the municipality in exchange for the potential future reimbursement for expenses and losses incurred as a result of a sanitary sewer backup, as it has no express or implied power to become an insurer for private property owners. OKLA. CONST. art. XVIII, § 6; Dev. Indus., Inc. v. City of Norman, 412 P.2d 953, 956 (Okla. 1966). 2. An arrangement where a municipality, or a Title 60 public trust whose sole beneficiary is a municipality, collects a voluntary fee from private property owners in exchange for the potential future payment of funds to the private property owner for expenses and losses incurred as a result of a sanitary sewer backup would make the municipality or public trust an insurer under the Insurance Code. 36 O.S. 2001, §§ 102[36-102], 103. *Page 6 3. A municipality, or a Title 60 public trust with a municipality as its sole beneficiary, has no authority to pay private property owners the costs of additional damages to property as a result of a sanitary sewer backup outside of what is statutorily available under the Governmental Tort Claims Act. 51 Ohio St. 2001, § 152.1[51-152.1]. W. A. DREW EDMONDSON Attorney General of Oklahoma PATRICIA A. PODOLEC Assistant Attorney General 1 You have asked about the effect on both a municipality and a public trust formed under Title 60. A municipality is defined as "any incorporated city or town." 11 Ohio St. 2001, § 1-102[11-1-102](5). Under Title 60, a public trust may be created by a municipality "to provide funds for the furtherance and accomplishment of any authorized and proper public function or purpose of the state or of any county or municipality or any and all combinations thereof." 60 O.S.Supp. 2008, § 176[60-176](A). A municipality and a Title 60 public trust whose sole beneficiary is a municipality are separate and distinct legal entities. Id. § 176.1(A)(2). For the purposes of this Opinion, however, the analysis is the same for both types of entities. Thus, references to a "municipality" also include a "Title 60 public trust whose sole beneficiary is a municipality." 2 Section 22-104 of Title 11 contains similar language: Every municipality shall have the right to: 1. Engage in any business or enterprise which may be engaged in by a person, firm, or corporation by virtue of a franchise from the municipality and to do all things necessary and proper in the discretion of the governing body of the municipality pursuant to the authority granted to it by the Constitution and laws of this state to maintain said business or enterprise for the benefit of the municipality[.] Id. (emphasis added). 3 A "person" is defined to include "an individual, company, insurer, association, organization, society, reciprocal or inter-insurance exchange, partnership, syndicate, business trust, [or] corporation. . . ." 36 O.S.Supp. 2008, § 104[36-104]. 4 Previous Attorney General Opinions have also addressed the issue of indemnification of private third parties by the state. Attorney General Opinion 07-41 concluded that "[g]enerally, the State or a state agency cannot lawfully agree to indemnify a private contractor." A. G. Opin. 07-41, at 261. See also A. G. Opin. 06-11, at 77 (providing a review of previous Attorney General Opinions concerning indemnification of a non-state party). 5 Nothing in the GTCA, however, prevents a municipality from settling a liability claim arising from a sewer backup and requiring a release from the property owner. See 51 O.S.Supp. 2008, § 158[51-158](A) ("The state or a political subdivision, after conferring with authorized legal counsel, may settle or defend against a claim or suit brought against it or its employee under this act subject to any procedural requirements imposed by statute, ordinance, resolution or written policy, and may appropriate money for the payment of amounts agreed upon."). Id. (footnote omitted). *Page 1 | 07-06-2016 | [
"Dear Senator Sparks: This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following questions: 1. May a municipality, or a Title 60 public trust whose sole beneficiary is a municipality, 1 engage in a program whereby a voluntary fee may be collected by the municipality in exchange for the potential future payment of funds to the fee payor to reimburse the fee payor for expenses and losses incurred as a result of a sanitary sewer backup into said payor's real property? 2.",
"If a municipality, or a Title 60 public trust whose sole beneficiary is a municipality, engages in such a program would the muncipality be engaging in the provision of insurance? If so, would the municipality be subject to the jurisdiction and regulation of the Oklahoma Insurance Commission or any other federal or state regulation? 3. As part of the above-described program, could the municipality require, as a condition of acceptance of reimbursement under the program, the fee payor to waive or sign a release of its rights to recovery of said expenses or losses under Oklahoma common *Page 2 law, constitutional law and statutory law, including, but not limited to the Governmental Tort Claims Act? If so, would the release be effective and enforceable? Before analyzing your questions, an understanding of the potential liability of a municipality for damages to private property resulting from a sanitary sewer system backup is important. The Oklahoma Supreme Court has long established that a municipality can be held liable for damages resulting from sewer backups.",
"The general rule is that where a municipal corporation assumes the control and management of its sewer system, which has been constructed by it and under its supervision, it is bound to use reasonable diligence and care to see that such sewer is not clogged with refuse and is liable for negligence in the performance of such duty to a property owner injured thereby after reasonable notice of the clogged condition of its sewer. City of Holdenville v. Moore, 293 P.2d 363, 366 (Okla. 1956). This liability, however, is limited. As noted in Moore, a municipality must receive \"reasonable notice of the clogged condition\" before it can be found liable for negligence.",
"Id. In addition, the Oklahoma Governmental Tort Claims Act (\"GTCA\") adopts the doctrine of sovereign immunity for the State, its political subdivisions and its employees acting within the scope of their employment. 51 Ohio St. 2001, § 152.1[51-152.1](A). The definition of a \"political subdivision\" under the GTCA includes both \"a municipality\" and \"a public trust where the sole beneficiary or beneficiaries are a city, town, school district or county.\" 51 O.S.Supp. 2008, § 152[51-152](10)(a), (d). This sovereign immunity is waived \"only to the extent and in the manner provided in this act.\" 51 Ohio St. 2001, § 152.1[51-152.1](B). Under the GTCA: A. The state or a political subdivision shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment subject to the limitations and exceptions specified in this act and only where the state or political subdivision, if a private person or entity, would be liable for money damages under the laws of this state. The state or a political subdivision shall not be liable under the provisions of this act for any act or omission of an employee acting outside the scope of his employment.",
"B. The liability of the state or political subdivision under this act shall be exclusive and in place of all other liability of the state, a political subdivision or employee at common law or otherwise. Id. § 153. Thus, the sovereign immunity of a municipality is waived only to the extent allowed in the GTCA and its liability is limited to that allowed under that Act. The first issue to examine is whether a municipality may indemnify private property owners who pay a voluntary fee to the city for property damage outside of statutory remedies. A *Page 3 municipality has several constitutional and statutory powers. The Oklahoma Constitution allows a municipality \"the right to engage in any business or enterprise which may be engaged in by a person, firm, or corporation by virtue of a franchise from said corporation.\" OKLA. CONST.",
"art. XVIII, § 6.2 The Oklahoma Constitution, however, does not provide a municipality the right to engage in any type of business but only those businesses which may be \"engaged in . . . by virtue of afranchise\" from the municipality. Id. (emphasis added). In OklahomaElectric Cooperative v. Oklahoma Gas and Electric Co., 982 P.2d 512 (Okla. 1999), the Oklahoma Supreme Court pointed out that the definition of \"franchise,\" while not defined in the Oklahoma Constitution, has been adopted by the court as follows: The word \"franchise\" is generally used to designate a right or privilege conferred by law.",
"To be a \"franchise\" the right possessed must be such as cannot be exercised without the express permission of the sovereign power. It is the privilege of doing that which does not belong to the citizens of the country generally by common right. . . . . [T]he term franchise . . . means the right granted by the state or a municipality to an existing corporation or individual to do certain things which a corporation or individual otherwise cannot do, such as the right to use the street . . . to erect thereon poles and wires . . . for electric light purposes.",
"Id. at 514-15 (quoting Okla. Gas Elec. Co. v. Total Energy,499 P.2d 917, 921 (Okla. 1972)). Thus, under this article of the Oklahoma Constitution, a municipality may only engage in businesses that involve the traditional activities of a municipality, those activities which are generally not available to corporations and private citizens. In addition, the Legislature has provided municipalities the power to: *Page 4 4. Make all contracts and do all other acts in relation to the property and affairs of the municipality, necessary to the good government of the municipality, and to the exercise of its corporate and administrative powers; and 5. Exercise such other powers as are or may be conferred by law. 11 Ohio St. 2001, § 22-101[11-22-101]. \"A municipal corporation possesses and can exercise only those powers granted in express words, those necessarily or fairly implied or incidental to the powers expressly granted, and those essential to the declared objects and purposes of the corporation.\"",
"Dev. Indus., Inc. v. City of Norman, 412 P.2d 953, 956 (Okla. 1966). Therefore, a municipality can indemnify private property owners, whether through a third-party insurer or through its own program, only if the power to do so has been expressly granted to it or can be fairly implied. Accordingly, if a municipality does not have the power to provide insurance to private property owners through a third-party insurer, it does not have the power to become an insurer for private-property owners on its own. A review of statutes finds that a municipality has the power to self-insure against liabilities.",
"51 O.S.Supp. 2008, § 167[51-167](B)(1). In addition, a political subdivision may be liable, even if otherwise exempt under the GTCA, \"on an insured risk to the extent of coverage under liability insurance.\" Herweg v. Bd. of Educ., 673 P.2d 154, 156 (Okla. 1983). The question of a municipality insuring itself, however, is not the same as whether a municipality may provide insurance to private parties. Under the Insurance Code, \"`[i]nsurance' is a contract whereby one undertakes to indemnify another or to pay a specified amount upon determinable contingencies.\" 36 Ohio St. 2001, § 102[36-102]. An \"insurer\" is \"every person3 engaged in the business of making contracts of insurance or indemnity.\" Id.",
"§ 103(A) (footnote added). Specifically, \"`property insurance' is insurance on real or personal property of every kind and interest therein, against loss or damage from any or all hazard or cause, and against loss consequential upon such loss or damage.\" Id. § 704. Thus, in the scenario presented in your questions, the municipality would be the \"one who undertakes to indemnify,\" the property owner would the party indemnified, and the \"loss or damage\" indemnified against would be damages caused by a sewer backup. This type of arrangement would make the municipality an insurer under the Insurance Code, with the municipality providing property insurance against the losses of a private property owner related to sanitary sewer backups.",
"Therefore, the program you ask *Page 5 about is not insurance benefitting the municipality, but insurance benefitting a private-property owner. We found no constitutional or statutory authority that would allow a municipality to become an insurer for private parties against property damage resulting from a sanitary-sewer backup.4 In addition, the liability of a municipality to private property owners is limited to what is available under the GTCA.5 Therefore, a municipality has no authority to be an insurer of private property for the benefit of a private property owner. Because a municipality cannot enter into this type of arrangement, we need not answer your remaining questions. It is, therefore, the official Opinion of the Attorney Generalthat: 1. A municipality, or a Title 60 public trust with a municipality as its sole beneficiary, has no authority to establish a program where private property owners may voluntarily make payments to the municipality in exchange for the potential future reimbursement for expenses and losses incurred as a result of a sanitary sewer backup, as it has no express or implied power to become an insurer for private property owners.",
"OKLA. CONST. art. XVIII, § 6; Dev. Indus., Inc. v. City of Norman, 412 P.2d 953, 956 (Okla. 1966). 2. An arrangement where a municipality, or a Title 60 public trust whose sole beneficiary is a municipality, collects a voluntary fee from private property owners in exchange for the potential future payment of funds to the private property owner for expenses and losses incurred as a result of a sanitary sewer backup would make the municipality or public trust an insurer under the Insurance Code. 36 O.S. 2001, §§ 102[36-102], 103.",
"*Page 6 3. A municipality, or a Title 60 public trust with a municipality as its sole beneficiary, has no authority to pay private property owners the costs of additional damages to property as a result of a sanitary sewer backup outside of what is statutorily available under the Governmental Tort Claims Act. 51 Ohio St. 2001, § 152.1[51-152.1]. W. A. DREW EDMONDSON Attorney General of Oklahoma PATRICIA A. PODOLEC Assistant Attorney General 1 You have asked about the effect on both a municipality and a public trust formed under Title 60. A municipality is defined as \"any incorporated city or town.\" 11 Ohio St. 2001, § 1-102[11-1-102](5). Under Title 60, a public trust may be created by a municipality \"to provide funds for the furtherance and accomplishment of any authorized and proper public function or purpose of the state or of any county or municipality or any and all combinations thereof.\"",
"60 O.S.Supp. 2008, § 176[60-176](A). A municipality and a Title 60 public trust whose sole beneficiary is a municipality are separate and distinct legal entities. Id. § 176.1(A)(2). For the purposes of this Opinion, however, the analysis is the same for both types of entities. Thus, references to a \"municipality\" also include a \"Title 60 public trust whose sole beneficiary is a municipality.\" 2 Section 22-104 of Title 11 contains similar language: Every municipality shall have the right to: 1. Engage in any business or enterprise which may be engaged in by a person, firm, or corporation by virtue of a franchise from the municipality and to do all things necessary and proper in the discretion of the governing body of the municipality pursuant to the authority granted to it by the Constitution and laws of this state to maintain said business or enterprise for the benefit of the municipality[.] Id. (emphasis added). 3 A \"person\" is defined to include \"an individual, company, insurer, association, organization, society, reciprocal or inter-insurance exchange, partnership, syndicate, business trust, [or] corporation. .",
". .\" 36 O.S.Supp. 2008, § 104[36-104]. 4 Previous Attorney General Opinions have also addressed the issue of indemnification of private third parties by the state. Attorney General Opinion 07-41 concluded that \"[g]enerally, the State or a state agency cannot lawfully agree to indemnify a private contractor.\" A. G. Opin. 07-41, at 261. See also A. G. Opin. 06-11, at 77 (providing a review of previous Attorney General Opinions concerning indemnification of a non-state party). 5 Nothing in the GTCA, however, prevents a municipality from settling a liability claim arising from a sewer backup and requiring a release from the property owner. See 51 O.S.Supp. 2008, § 158[51-158](A) (\"The state or a political subdivision, after conferring with authorized legal counsel, may settle or defend against a claim or suit brought against it or its employee under this act subject to any procedural requirements imposed by statute, ordinance, resolution or written policy, and may appropriate money for the payment of amounts agreed upon.\").",
"Id. (footnote omitted). *Page 1"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3788311/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
EXAMINER’S AMENDMENT This Office Action is in response to RCE filed July 14, 2021. 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.
Election/Restrictions Claim 1 is directed to an allowable product. Claim 7, directed to a non-elected species previously withdrawn from consideration as a result of an election of species requirement, has been rejoined. Claim 7 is hereby rejoined and fully examined for patentability under 37 CFR 1.104.
The following claims are cancelled, because (a) as Applicants indicated in the REMARKS filed June 14, 2021, claims 1, 14 and 18 are directed to Applicants’ elected embodiment shown in Fig. 5 of current application where the ELD1 comprises the amorphous carbon light emitter, and the ELD2 and ELD3 comprise the quantum dot but do not comprise the amorphous carbon light emitter, and (b) therefore, the following dependent claims fail to comply with the written description requirement, and should be cancelled.
Claim 2. (Cancelled) Claim 3. (Cancelled) Claim 6. (Cancelled) Claims 8-13. (Cancelled)
Allowable Subject Matter Claims 1, 5, 7, 14, 16 and 18-20 are allowed. Claims 1, 14 and 18 is allowed, because Yu et al. do not disclose the newly added limitation reciting that the first light emitting element comprises an amorphous carbon light emitter, and each of the second and third comprises a quantum dot.
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 JAY C KIM whose telephone number is (571) 270-1620. The examiner can normally be reached on 8:00 AM - 6:30 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, Kenneth Parker can be reached on (571) 272-2298. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
/J. K./ Primary Examiner, Art Unit 2815 /JAY C KIM/ Primary Examiner, Art Unit 2815
January 7, 2022 | 2022-01-23T15:31:52 | [
"EXAMINER’S AMENDMENT This Office Action is in response to RCE filed July 14, 2021. 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. Election/Restrictions Claim 1 is directed to an allowable product. Claim 7, directed to a non-elected species previously withdrawn from consideration as a result of an election of species requirement, has been rejoined. Claim 7 is hereby rejoined and fully examined for patentability under 37 CFR 1.104.",
"The following claims are cancelled, because (a) as Applicants indicated in the REMARKS filed June 14, 2021, claims 1, 14 and 18 are directed to Applicants’ elected embodiment shown in Fig. 5 of current application where the ELD1 comprises the amorphous carbon light emitter, and the ELD2 and ELD3 comprise the quantum dot but do not comprise the amorphous carbon light emitter, and (b) therefore, the following dependent claims fail to comply with the written description requirement, and should be cancelled. Claim 2. (Cancelled) Claim 3. (Cancelled) Claim 6. (Cancelled) Claims 8-13. (Cancelled) Allowable Subject Matter Claims 1, 5, 7, 14, 16 and 18-20 are allowed. Claims 1, 14 and 18 is allowed, because Yu et al. do not disclose the newly added limitation reciting that the first light emitting element comprises an amorphous carbon light emitter, and each of the second and third comprises a quantum dot. 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 JAY C KIM whose telephone number is (571) 270-1620. The examiner can normally be reached on 8:00 AM - 6:30 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, Kenneth Parker can be reached on (571) 272-2298. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. /J. K./ Primary Examiner, Art Unit 2815 /JAY C KIM/ Primary Examiner, Art Unit 2815 January 7, 2022"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-01-30.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Cite as: 565 U. S. ____ (2011) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES KPMG LLP v. ROBERT COCCHI ET AL. ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
No. 10–1521. Decided November 7, 2011
PER CURIAM. Agreements to arbitrate that fall within the scope and coverage of the Federal Arbitration Act (Act), 9 U.S. C. §1 et seq., must be enforced in state and federal courts. State courts, then, “have a prominent role to play as enforcers of agreements to arbitrate.” Vaden v. Discover Bank, 556 U.S. 49, 59 (2009). The Act has been interpreted to require that if a dispute presents multiple claims, some arbitrable and some not, the former must be sent to arbitration even if this will lead to piecemeal litigation. See Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 217 (1985). From this it fol- lows that state and federal courts must examine with care the complaints seeking to invoke their jurisdiction in order to separate arbitrable from nonarbitrable claims. A court may not issue a blanket refusal to compel arbitration merely on the grounds that some of the claims could be resolved by the court without arbitration. See ibid. In this case the Fourth District Court of Appeal of the State of Florida upheld a trial court’s refusal to compel arbitration of respondents’ claims after determining that two of the four claims in a complaint were nonarbitrable. Though the matter is not altogether free from doubt, a fair reading of the opinion indicates a likelihood that the Court of Appeal failed to determine whether the other two claims in the complaint were arbitrable. For this reason, the judgment of the Court of Appeal is vacated, and the case remanded for further proceedings. 2 KPMG LLP v. COCCHI
Per Curiam
* * *
Respondents are 19 individuals and entities who bought limited partnership interests in one of three limited part- nerships, all known as the Rye Funds. The Rye Funds were managed by Tremont Group Holding, Inc., and Tremont Partners, Inc., both of which were audited by KPMG. The Rye Funds were invested with financier Bernard Madoff and allegedly lost millions of dollars as a result of a scheme to defraud. Respondents sued the Rye Funds, the Tremont defendants, and Tremont’s auditing firm, KPMG. Only the claims against KPMG are at issue in this case. Against KPMG, respondents alleged four causes of action: negligent misrepresentation; violation of the Florida De- ceptive and Unfair Trade Practices Act (FDUTPA), Fla. Stat. 501.201 et seq. (2010); professional malpractice; and aiding and abetting a breach of fiduciary duty. Respond- ents’ basic theory was that KPMG failed to use proper auditing standards with respect to the financial state- ments of the partnerships. These improper audits, re- spondents contend, led to “substantial misrepresentations” about the health of the funds and resulted in respondents’ investment losses. 51 So. 3d 1165, 1168 (Fla. App. 2010). KPMG moved to compel arbitration based on the audit services agreement that existed between it and the Trem- ont defendants. That agreement provided that “[a]ny dispute or claim arising out of or relating to . . . the ser- vices provided [by KPMG] . . . (including any dispute or claim involving any person or entity for whose benefit the services in question are or were provided) shall be re- solved” either by mediation or arbitration. App. to Pet. for Cert. 63a. The Florida Circuit Court of the Fifteenth Judicial Circuit Palm Beach County denied the motion. The Court of Appeal affirmed, noting that “[n]one of the plaintiffs . . . expressly assented in any fashion to [the audit services agreement] or the arbitration provision.” 51 Cite as: 565 U. S. ____ (2011) 3
Per Curiam
So. 3d, at 1168. Thus, the court found, the arbitration clause could only be enforced if respondents’ claims were derivative in that they arose from the services KPMG performed for the Tremont defendants pursuant to the audit services agreement. Applying Delaware law, which both parties agreed was applicable, the Court of Appeal concluded that the negligent misrepresentation and the violation of FDUTPA claims were direct rather than de- rivative. A fair reading of the opinion reveals nothing to suggest that the court came to the same conclusion about the professional malpractice and breach of fiduciary duty claims. Indeed, the court said nothing about those claims at all. Finding “the arbitral agreement upon which KPMG relied would not apply to the direct claims made by the individual plaintiffs,” id., at 1167, the Court of Appeal affirmed the trial court’s denial of the motion to arbitrate. Respondents have since amended their complaint to add a fifth claim. Citing the Court of Appeal’s decision, the trial court again denied KPMG’s motion to compel arbitration. The Federal Arbitration Act reflects an “emphatic fed- eral policy in favor of arbitral dispute resolution.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985); Moses H. Cone Memorial Hospi- tal v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983) (noting that “questions of arbitrability [must]. . . be ad- dressed with a healthy regard for the federal policy favor- ing arbitration”). This policy, as contained within the Act, “requires courts to enforce the bargain of the parties to arbitrate,” Dean Witter, supra, at 217, and “cannot possi- bly require the disregard of state law permitting arbitra- tion by or against nonparties to the written arbitration agreement,” Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630, n. 5 (2009) (emphasis deleted). Both parties agree that whether the claims in the complaint are arbi- trable turns on the question whether they must be deemed 4 KPMG LLP v. COCCHI
Per Curiam
direct or derivative under Delaware law. That question of state law is not at issue here. What is at issue is the Court of Appeal’s apparent refusal to compel arbitration on any of the four claims based solely on a finding that two of them, the claim of negligent misrepresentation and the alleged violation of the FDUTPA, were nonarbitrable. In Dean Witter, the Court noted that the Act “provides that written agreements to arbitrate controversies arising out of an existing contract ‘shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’ ” 470 U.S., at 218 (quoting 9 U.S. C. §2). The Court found that by its terms, “the Act leaves no place for the exercise of discre- tion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” 470 U.S., at 218 (emphasis in original). Thus, when a complaint contains both arbitrable and nonarbi- trable claims, the Act requires courts to “compel arbitra- tion of pendent arbitrable claims when one of the parties files a motion to compel, even where the result would be the possibly inefficient maintenance of separate proceed- ings in different forums.” Id., at 217. To implement this holding, courts must examine a complaint with care to assess whether any individual claim must be arbitrated. The failure to do so is subject to immediate review. See Southland Corp. v. Keating, 465 U.S. 1, 6–7 (1984). The Court of Appeal listed all four claims, found that two were direct, and then refused to compel arbitration on the complaint as a whole because the arbitral agreement “would not apply to the direct claims.” 51 So. 3d, at 1167. By not addressing the other two claims in the complaint, the Court of Appeal failed to give effect to the plain mean- ing of the Act and to the holding of Dean Witter. The petition for certiorari is granted. The judgment of the Court of Appeal is vacated, and the case is remanded. On Cite as: 565 U. S. ____ (2011) 5
Per Curiam
remand, the Court of Appeal should examine the re- maining two claims to determine whether either requires arbitration. It is so ordered. | 11-07-2011 | [
"Cite as: 565 U. S. ____ (2011) 1 Per Curiam SUPREME COURT OF THE UNITED STATES KPMG LLP v. ROBERT COCCHI ET AL. ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT No. 10–1521. Decided November 7, 2011 PER CURIAM. Agreements to arbitrate that fall within the scope and coverage of the Federal Arbitration Act (Act), 9 U.S. C. §1 et seq., must be enforced in state and federal courts.",
"State courts, then, “have a prominent role to play as enforcers of agreements to arbitrate.” Vaden v. Discover Bank, 556 U.S. 49, 59 (2009). The Act has been interpreted to require that if a dispute presents multiple claims, some arbitrable and some not, the former must be sent to arbitration even if this will lead to piecemeal litigation. See Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 217 (1985). From this it fol- lows that state and federal courts must examine with care the complaints seeking to invoke their jurisdiction in order to separate arbitrable from nonarbitrable claims. A court may not issue a blanket refusal to compel arbitration merely on the grounds that some of the claims could be resolved by the court without arbitration. See ibid. In this case the Fourth District Court of Appeal of the State of Florida upheld a trial court’s refusal to compel arbitration of respondents’ claims after determining that two of the four claims in a complaint were nonarbitrable.",
"Though the matter is not altogether free from doubt, a fair reading of the opinion indicates a likelihood that the Court of Appeal failed to determine whether the other two claims in the complaint were arbitrable. For this reason, the judgment of the Court of Appeal is vacated, and the case remanded for further proceedings. 2 KPMG LLP v. COCCHI Per Curiam * * * Respondents are 19 individuals and entities who bought limited partnership interests in one of three limited part- nerships, all known as the Rye Funds. The Rye Funds were managed by Tremont Group Holding, Inc., and Tremont Partners, Inc., both of which were audited by KPMG. The Rye Funds were invested with financier Bernard Madoff and allegedly lost millions of dollars as a result of a scheme to defraud. Respondents sued the Rye Funds, the Tremont defendants, and Tremont’s auditing firm, KPMG. Only the claims against KPMG are at issue in this case. Against KPMG, respondents alleged four causes of action: negligent misrepresentation; violation of the Florida De- ceptive and Unfair Trade Practices Act (FDUTPA), Fla. Stat.",
"501.201 et seq. (2010); professional malpractice; and aiding and abetting a breach of fiduciary duty. Respond- ents’ basic theory was that KPMG failed to use proper auditing standards with respect to the financial state- ments of the partnerships. These improper audits, re- spondents contend, led to “substantial misrepresentations” about the health of the funds and resulted in respondents’ investment losses. 51 So. 3d 1165, 1168 (Fla. App. 2010). KPMG moved to compel arbitration based on the audit services agreement that existed between it and the Trem- ont defendants.",
"That agreement provided that “[a]ny dispute or claim arising out of or relating to . . . the ser- vices provided [by KPMG] . . . (including any dispute or claim involving any person or entity for whose benefit the services in question are or were provided) shall be re- solved” either by mediation or arbitration. App. to Pet. for Cert. 63a. The Florida Circuit Court of the Fifteenth Judicial Circuit Palm Beach County denied the motion. The Court of Appeal affirmed, noting that “[n]one of the plaintiffs .",
". . expressly assented in any fashion to [the audit services agreement] or the arbitration provision.” 51 Cite as: 565 U. S. ____ (2011) 3 Per Curiam So. 3d, at 1168. Thus, the court found, the arbitration clause could only be enforced if respondents’ claims were derivative in that they arose from the services KPMG performed for the Tremont defendants pursuant to the audit services agreement. Applying Delaware law, which both parties agreed was applicable, the Court of Appeal concluded that the negligent misrepresentation and the violation of FDUTPA claims were direct rather than de- rivative.",
"A fair reading of the opinion reveals nothing to suggest that the court came to the same conclusion about the professional malpractice and breach of fiduciary duty claims. Indeed, the court said nothing about those claims at all. Finding “the arbitral agreement upon which KPMG relied would not apply to the direct claims made by the individual plaintiffs,” id., at 1167, the Court of Appeal affirmed the trial court’s denial of the motion to arbitrate. Respondents have since amended their complaint to add a fifth claim. Citing the Court of Appeal’s decision, the trial court again denied KPMG’s motion to compel arbitration. The Federal Arbitration Act reflects an “emphatic fed- eral policy in favor of arbitral dispute resolution.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985); Moses H. Cone Memorial Hospi- tal v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983) (noting that “questions of arbitrability [must]. . . be ad- dressed with a healthy regard for the federal policy favor- ing arbitration”).",
"This policy, as contained within the Act, “requires courts to enforce the bargain of the parties to arbitrate,” Dean Witter, supra, at 217, and “cannot possi- bly require the disregard of state law permitting arbitra- tion by or against nonparties to the written arbitration agreement,” Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630, n. 5 (2009) (emphasis deleted). Both parties agree that whether the claims in the complaint are arbi- trable turns on the question whether they must be deemed 4 KPMG LLP v. COCCHI Per Curiam direct or derivative under Delaware law. That question of state law is not at issue here. What is at issue is the Court of Appeal’s apparent refusal to compel arbitration on any of the four claims based solely on a finding that two of them, the claim of negligent misrepresentation and the alleged violation of the FDUTPA, were nonarbitrable. In Dean Witter, the Court noted that the Act “provides that written agreements to arbitrate controversies arising out of an existing contract ‘shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’ ” 470 U.S., at 218 (quoting 9 U.S. C. §2). The Court found that by its terms, “the Act leaves no place for the exercise of discre- tion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” 470 U.S., at 218 (emphasis in original).",
"Thus, when a complaint contains both arbitrable and nonarbi- trable claims, the Act requires courts to “compel arbitra- tion of pendent arbitrable claims when one of the parties files a motion to compel, even where the result would be the possibly inefficient maintenance of separate proceed- ings in different forums.” Id., at 217. To implement this holding, courts must examine a complaint with care to assess whether any individual claim must be arbitrated. The failure to do so is subject to immediate review. See Southland Corp. v. Keating, 465 U.S. 1, 6–7 (1984). The Court of Appeal listed all four claims, found that two were direct, and then refused to compel arbitration on the complaint as a whole because the arbitral agreement “would not apply to the direct claims.” 51 So. 3d, at 1167.",
"By not addressing the other two claims in the complaint, the Court of Appeal failed to give effect to the plain mean- ing of the Act and to the holding of Dean Witter. The petition for certiorari is granted. The judgment of the Court of Appeal is vacated, and the case is remanded. On Cite as: 565 U. S. ____ (2011) 5 Per Curiam remand, the Court of Appeal should examine the re- maining two claims to determine whether either requires arbitration. It is so ordered."
]
| https://www.courtlistener.com/api/rest/v3/opinions/616808/ | 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 .
Response to Amendment This communication is in response to Applicant’s amendments filed 8 February 2021. Claims 1, 7, 8, 14, 15, 19 and 20 have been amended according to Applicant’s amendments. No claims have been added or cancelled. Accordingly, claims 1-20 remain pending and are under consideration.
Response to Arguments Applicant’s arguments, see remarks pages 9-11, filed 8 February 2021, with respect to the rejections of claims 1-20 under 35 USC 103 have been fully considered and are persuasive. Accordingly, the rejections of claims 1-20 under 35 USC 103 has been withdrawn. Further, the claims as amended are non-obvious over claims 1-20 of Application No. 16/454,048, nor claims 1-20 of Application No. 16/454,029, as neither application presently discloses or makes obvious the concept of classifying storage drives based on writes-per-day classification and modifying the writes-per-day classification of the storage drive resulting in reclassifying the drive into a different classification level. Accordingly, the double patenting rejection is withdrawn. Information Disclosure Statement The information disclosure statements (IDS) submitted on 22 February 2021 and 23 February 2021 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Allowable Subject Matter Claims 1-20 are allowed. The following is an examiner’s statement of reasons for allowance: The closest prior art of record, (1) Dedrick, teaches the dynamic adjustment of available logical storage capacity based on predicted service life based on observed usage data in comparison to predetermined service life, (2) Dalmatov teaches arranging SSD in RAID groups based on generated endurance value, and (3) Sen teaches determining, based on a DWPD value, whether a drive is reaching a critical level of drive writes per day and moving the drive to a storage pool with a lower DWPD level to extend the usable life of the drive. However, they do not anticipate nor render obvious the combination of classifying of storage drives based on a writes-per-day classification and modifying the writes-per-day classification of the storage drive based on changing levels of overprovisioning of the drives, resulting in reclassifying the drive into a different classification level of writes-per-day and grouping drives having similar writes per day classifications together, as in independent claims 1, 8 and 15. Claims 2-7, 9-14, and 16-20 are allowed as being dependent upon, and thus incorporating therein, the allowable subject matter of the respective parent claims.
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 EDMUND H KWONG whose telephone number is (571)272-8691. The examiner can normally be reached on Monday-Friday 8-5 PT. 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, Adam Queler can be reached on 571-272-4140. 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
/E.H.K/Examiner, Art Unit 2137 /RYAN BERTRAM/Primary Examiner, Art Unit 2137 | 2021-02-26T14:32:35 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Amendment This communication is in response to Applicant’s amendments filed 8 February 2021. Claims 1, 7, 8, 14, 15, 19 and 20 have been amended according to Applicant’s amendments. No claims have been added or cancelled. Accordingly, claims 1-20 remain pending and are under consideration. Response to Arguments Applicant’s arguments, see remarks pages 9-11, filed 8 February 2021, with respect to the rejections of claims 1-20 under 35 USC 103 have been fully considered and are persuasive. Accordingly, the rejections of claims 1-20 under 35 USC 103 has been withdrawn.",
"Further, the claims as amended are non-obvious over claims 1-20 of Application No. 16/454,048, nor claims 1-20 of Application No. 16/454,029, as neither application presently discloses or makes obvious the concept of classifying storage drives based on writes-per-day classification and modifying the writes-per-day classification of the storage drive resulting in reclassifying the drive into a different classification level. Accordingly, the double patenting rejection is withdrawn. Information Disclosure Statement The information disclosure statements (IDS) submitted on 22 February 2021 and 23 February 2021 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner. Allowable Subject Matter Claims 1-20 are allowed. The following is an examiner’s statement of reasons for allowance: The closest prior art of record, (1) Dedrick, teaches the dynamic adjustment of available logical storage capacity based on predicted service life based on observed usage data in comparison to predetermined service life, (2) Dalmatov teaches arranging SSD in RAID groups based on generated endurance value, and (3) Sen teaches determining, based on a DWPD value, whether a drive is reaching a critical level of drive writes per day and moving the drive to a storage pool with a lower DWPD level to extend the usable life of the drive.",
"However, they do not anticipate nor render obvious the combination of classifying of storage drives based on a writes-per-day classification and modifying the writes-per-day classification of the storage drive based on changing levels of overprovisioning of the drives, resulting in reclassifying the drive into a different classification level of writes-per-day and grouping drives having similar writes per day classifications together, as in independent claims 1, 8 and 15. Claims 2-7, 9-14, and 16-20 are allowed as being dependent upon, and thus incorporating therein, the allowable subject matter of the respective parent claims. 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 EDMUND H KWONG whose telephone number is (571)272-8691. The examiner can normally be reached on Monday-Friday 8-5 PT. 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, Adam Queler can be reached on 571-272-4140. 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 /E.H.K/Examiner, Art Unit 2137 /RYAN BERTRAM/Primary Examiner, Art Unit 2137"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-02-28.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
121 Ill.2d 337 (1988) 521 N.E.2d 86 THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LESLIE FOGGY, Appellant. No. 64573. Supreme Court of Illinois. Opinion filed February 11, 1988. *338 Robert Agostinelli, Deputy Defender, and Stephen Omolecki, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant. Neil F. Hartigan, Attorney General, of Springfield (Roma Jones Stewart, Solicitor General, and Kenneth A. Fedinets, Assistant Attorney General, of Chicago, of counsel), for the People. Judy L. Hogan, of Springfield, for amicus curiae Illinois Coalition Against Sexual Assault. Judgment affirmed. JUSTICE MILLER delivered the opinion of the court: Following a jury trial in the circuit court of Rock Island County, the defendant, Leslie Foggy, was convicted of aggravated criminal sexual assault and unlawful restraint. The trial judge sentenced the defendant to concurrent 30-year and 3-year terms of imprisonment for those offenses. The appellate court affirmed the judgment (149 Ill. App.3d 599), and we allowed the defendant's petition for leave to appeal (107 Ill.2d R. 315(a)). The defendant does not contest the sufficiency of the evidence of his guilt, and that evidence may be summarized *339 briefly. The offenses in question occurred in Rock Island on July 18, 1985. The complaining witness, a 26-year-old woman, was abducted from in front of her home around three o'clock that morning by the defendant, who forced her into a car and drove off. The defendant told the victim that he had a gun, and he compelled her to perform oral sex. The defendant eventually drove to a park in the area, where he raped the victim. The defendant later released her near a convenience store, and she told the sales clerk what had happened. The victim was then taken to a local hospital. There, she was shown a photographic array by police, and she identified the defendant as her attacker. The defendant was arrested at his home following the identification. He testified at trial, and he said that the sexual acts were consensual and that afterwards the victim became upset when he refused to give her money. The sole issue raised by the defendant in this appeal concerns the constitutionality of the statutory privilege for communications made to rape crisis counselors. (Ill. Rev. Stat. 1985, ch. 110, par. 8-802.1.) The Illinois Coalition Against Sexual Assault has filed a brief as amicus curiae in support of the provision. Section 8-802.1 of the Code of Civil Procedure provides, in its entirety: "(a) Purpose. This Section is intended to protect victims of rape from public disclosure of statements they make in confidence to counselors of organizations established to help them. On or after July 1, 1984, `rape' means an act of forced sexual penetration or sexual conduct, as defined in Section 12-12 of the Criminal Code of 1961, as amended, including acts prohibited under Sections 12-13 through 12-16 of the Criminal Code of 1961, as amended. Because of the fear and stigma that often results from those crimes, many victims hesitate to seek help even where it is available at no cost to them. As a result they not only fail to receive needed medical care and emergency counseling, but may lack the psychological *340 support necessary to report the crime and aid police in preventing future crimes. (b) Definitions. As used in this Act: (1) `Rape crisis organization' means any organization or association the major purpose of which is providing information, counseling, and psychological support to victims of any or all of the crimes of aggravated criminal sexual assault, criminal sexual assault, sexual relations between siblings, criminal sexual abuse and aggravated criminal sexual abuse. (2) `Rape crisis counselor' means a person who is employed in any organization or association defined as a rape crisis organization under this Section, who is a psychologist, social worker or a volunteer who has undergone 40 hours of training and is under the control of a direct services supervisor of a rape crisis organization. (3) `Confidential communication' means any communication between an alleged victim of aggravated criminal sexual assault, criminal sexual assault, sexual relations between siblings, criminal sexual abuse and aggravated criminal sexual abuse or an attempt to commit any such offense and a rape crisis counselor in the course of providing information, counseling and advocacy. The term includes all records kept by the counselor or by the organization in the course of providing services to an alleged victim concerning the alleged victim and the services provided. (c) Confidentiality. No rape crisis counselor shall disclose any confidential communication or be examined as a witness in any civil or criminal proceeding as to any confidential communication without the consent of the victim. (d) Any rape crisis counselor who knowingly discloses any confidential communication in violation of this Act commits a Class C misdemeanor." Ill. Rev. Stat. 1985, ch. 110, par. 8-802.1. In the aftermath of the assault, the victim sought and obtained counseling from the Quad City Rape/Sexual Assault Counseling Program. Before trial, the defendant issued a subpoena duces tecum on that organization seeking information regarding the complaining witness. Motions to quash were filed by the State and by Joni Dittmer, who *341 was the rape crisis counselor assisting the victim. They contended that the victim's communications with Dittmer were absolutely privileged under section 8-802.1 and therefore could not be disclosed without the victim's consent, which she had not given. A copy of the subpoena does not appear in the record in this case; according to the circuit judge's order, the defendant sought production of "`all records, reports, notes, memoranda, statements, oral, recorded, or written, and any and all other documents concerning the alleged assault upon the witness.'" A hearing was conducted on the matter, and at that time counsel narrowed the scope of his request for information, indicating that he was seeking information that could be used for impeachment purposes. At the hearing, the State presented testimony from Berlinda Tyler-Jamison, the program director, and from Joni Dittmer, the counselor in this case, regarding the operation and services of the Quad City Counseling Program. In her testimony, Joni Dittmer explained that she had told the victim that the counseling services were free and confidential. Dittmer said that part of her assistance involved what she termed legal advocacy, which, she explained, meant that she helped the victim keep track of the legal proceedings in the case and would attend court sessions with her. The circuit judge quashed the subpoena, ruling that the communications between Dittmer and the victim were protected from disclosure by the statutory privilege and that the statute was constitutional. Specifically, the circuit judge found that the Quad City Counseling Program was a rape crisis organization within the meaning of section 8-802.1(b)(1), that Dittmer was a rape crisis counselor within the meaning of section 8-802.1(b)(2), and that Dittmer and the victim had had six separate conversations and that each one was a confidential communication within the meaning of section 8-802.1(b)(3). The court also found that at no time had the victim consented *342 to Dittmer's disclosure of any of those communications. The circuit judge also rejected the defendant's argument that the statute was unconstitutional. The judge noted that the victim in this case would be testifying in court and therefore subject to cross-examination. For those reasons, the court did not believe that the communications at issue here represented "a significant or irreplaceable means of impeaching her as a government witness." The judge concluded that there was no substantial conflict in this case between the statutory privilege and the defendant's right to conduct a defense to the charges against him. The circuit judge therefore quashed the subpoena. The appellate court affirmed the trial court's judgment, rejecting the defendant's challenge to the constitutionality of section 8-802.1. The defendant renews here his argument that the privilege accorded by section 8-802.1 to communications between sexual assault victims and counselors violates his Federal constitutional rights to due process and to confront the witnesses against him. (U.S. Const., amends. VI, XIV; Pointer v. Texas (1965), 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065; see also Ill. Const. 1970, art. I, § 8; People v. Tennant (1976), 65 Ill.2d 401, 408 (the Federal and State confrontation clauses "are meant to protect the same interest").) The defendant asks for an in camera inspection of the records of the Quad City Counseling Program concerning the victim, with disclosure to the defense of her statements recounting the occurrence. In support of his argument, the defendant cites the decisions of other courts that have refused to enforce, or have refused to recognize, an absolute privilege for communications made by sexual assault victims to counselors. In addition to applying their own precedents concerning privileges, those courts have relied on Davis v. Alaska (1974), 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105, *343 and Washington v. Texas (1967), 388 U.S. 14, 18 L.Ed.2d 1019, 87 S.Ct. 1920, which found constitutional violations in State laws excluding certain forms of evidence from trial, and on United States v. Nixon (1974), 418 U.S. 683, 41 L.Ed.2d 1039, 94 S.Ct. 3090, which rejected a broad claim of executive privilege in the face of an articulated need for information. (See In re Robert H. (1986), 199 Conn. 693, 509 A.2d 475; Advisory Opinion to the House of Representatives (R.I. 1983), 469 A.2d 1161; see also Matter of Pittsburgh Action Against Rape (1981), 494 Pa. 15, 428 A.2d 126 (refusing to recognize a common law privilege for communications made to rape counselors; the legislature has since enacted a statute providing an unqualified privilege (see 42 Pa. Cons. Stat. § 5945.1 (1982)).) A contrary result has been reached by the Colorado Supreme Court, which held that an in camera inspection of a sexual assault victim's counseling records was barred by that State's psychologist/patient privilege. People v. District Court (Colo. 1986), 719 P.2d 722. In Davis v. Alaska (1974), 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105, the Court found a violation of the defendant's confrontation right in a prohibition on certain impeachment. Before trial in that case, the prosecution requested a protective order to preclude defense counsel from cross-examining one of the State's principal witnesses regarding his juvenile record. Defense counsel argued that the information would be relevant to show possible bias on the witness' part in assisting the police in the matter. The trial judge granted the protective order, relying on State provisions that generally precluded use of juvenile records in judicial proceedings. At trial, defense counsel asked the witness whether he was biased in the State's favor but, consistent with the trial judge's ruling, did not make any inquiry concerning the witness' juvenile record. The United States Supreme Court reversed the defendant's conviction. The Court did not believe that *344 the cross-examination of the witness had been adequate, for although defense counsel had been able to ask the witness whether he was biased, counsel had not been able to explore the possible sources of bias. Moreover, the Court did not believe that the State's interest in preserving the confidentiality of juvenile records warranted their broad exclusion in that case. The Court concluded that "[t]he State's policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of a defense witness." (Davis, 415 U.S. at 320, 39 L.Ed.2d at 356, 94 S.Ct. at 1112.) The Court remanded the cause for further proceedings. Discussing Davis, one commentator has noted: "In the first instance, it is probable that the defendant's ability to challenge claims of privilege as impairing his `right to present a defense' will to some extent be dependent upon the criticality to that defense of the matter protected by the privilege. In Davis, the privileged matter in effect represented a significant and irreplaceable means of impeaching the chief prosecution witness. By contrast, where the privileged matter desired is of significantly lesser probative force or simply cumulative, its denial to the defendant has been held not to violate the constitutional guarantees." (McCormick, Evidence § 74.2, at 179 (3d ed. 1984).) In quashing the subpoena, the circuit judge concluded that the material requested by the defendant in this case did not represent critical or irreplaceable information, citing the quoted passage. A similar question was considered recently in Pennsylvania v. Ritchie (1987), 480 U.S. 39, 94 L.Ed.2d 40, 107 S.Ct. 989, which is cited by both the State and the defendant in support of their arguments here. In that case, which involved a confidentiality statute, a plurality of the Court rejected a confrontation clause argument like that made by the defendant in this case. The Court *345 held that an in camera inspection of certain records was required, however. The defendant in Ritchie was charged with committing a number of sexual offenses against his 13-year-old daughter. Before trial, Ritchie subpoenaed the records of a State agency, Children and Youth Services (CYS), seeking information that had been developed in his daughter's case; CYS investigated allegations of mistreatment and neglect of children, and Ritchie's daughter had been referred to the agency by police. CYS claimed a statutory privilege in the records and refused to disclose them. The trial judge agreed with the agency and denied disclosure; Ritchie's case then went to trial, and he was convicted of the charges. The United States Supreme Court considered Ritchie's claim under both the confrontation and compulsory process clauses. Ritchie argued that nondisclosure of the State agency's file interfered with his confrontation right because the files might have contained information, such as inconsistent statements, that would have been useful in cross-examining the complaining witness. The Pennsylvania Supreme Court had agreed with Ritchie, relying in part on Davis v. Alaska (1974), 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105. The plurality in Ritchie characterized confrontation as essentially a trial right and believed that it would be satisfied by the defendant's physically facing the witnesses against him and by counsel's cross-examination of them. The plurality opinion said: "If we were to accept this broad interpretation of Davis, the effect would be to transform the Confrontation Clause into a constitutionally-compelled rule of pretrial discovery. Nothing in the case law supports such a view. The opinions of this Court show that the right of confrontation is a trial right designed to prevent improper restriction on the types of questions that defense counsel may ask during cross-examination. [Citations.] The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information *346 that might be useful in contradicting unfavorable testimony." (Emphasis in original.) (Ritchie, 480 U.S. at 52-53, 94 L.Ed.2d at 54, 107 S.Ct. at 999.) The plurality concluded that "[b]ecause defense counsel was able to cross-examine all of the trial witnesses fully," the failure to disclose the agency's records did not violate Ritchie's confrontation right. 480 U.S. at 54, 94 L.Ed.2d at 55-56, 107 S.Ct. at 1000. In Ritchie the Supreme Court also considered the defendant's argument that nondisclosure of the agency's file violated his sixth amendment guarantee of compulsory process. Analyzing that question in terms of due process, the Court concluded that, under the Pennsylvania statute at issue in that case, the defendant was entitled to have the trial judge conduct an in camera inspection of the records at issue. In Ritchie's case, neither the prosecution nor the defense had seen the information, and the trial judge had not reviewed the entire file. Because the privilege was not absolute, the Court rejected the State's argument that the statutory privilege would preclude an examination of the agency's records in the case. Citing the Pennsylvania statute that provides an absolute privilege for communications between sexual assault victims and their counselors, the Court noted that it was expressing "no opinion on whether the result in this case would have been different if the statute had protected the CYS files from disclosure to anyone, including law-enforcement and judicial personnel." (Emphasis in original.) (Ritchie, 480 U.S. at 57 & n. 14, 94 L.Ed.2d at 57 & n. 14, 107 S.Ct. at 1002 & n. 14.) Rather, the statutory privilege at issue was not absolute, and one exception permitted CYS to "disclose the reports to a `court of competent jurisdiction pursuant to a court order.'" (Ritchie, 480 U.S. at 44, 94 L.Ed.2d at 49, 107 S.Ct. at 995.) In light of that exception, the Supreme Court said:
*347 "Given that the Pennsylvania legislature contemplated some use of CYS records in judicial proceedings, we cannot conclude that the statute prevents all disclosure in criminal prosecutions. In the absence of any apparent state policy to the contrary, we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is material to the defense of the accused." (Emphasis in original.) (Ritchie, 480 U.S. at 58, 94 L.Ed.2d at 58, 107 S.Ct. at 1002.) The Court did not believe, however, that defense counsel was entitled to review the file himself so that he could argue for the relevance of particular information. Rather, the Court held that an in camera inspection of the file by the trial judge would be sufficient. Ritchie, 480 U.S. at 60, 94 L.Ed.2d at 59, 107 S.Ct. at 1003. The privilege contained in section 8-802.1 is unqualified, and we are therefore met with an issue unresolved by Ritchie: whether an absolute privilege must yield to a criminal defendant's pretrial discovery request for otherwise privileged information that may provide material for use in cross-examining witnesses. Again, we note that the defendant here was requesting only an in camera inspection of the material, with disclosure limited to communications recounting the commission of the offenses. The defendant's request was merely general, however, and was not supported by any allegations that material useful to the defense of this case was likely to be found in the files of the Quad City Counseling Program. From the following analysis of the statutory privilege, we conclude that the defendant's suggested procedure was not constitutionally required in this case. The legislature's intent in section 8-802.1 of the Code of Civil Procedure to protect the confidentiality of communications between sexual assault counselors and *348 victims is clear. The stated purpose of the statute is as follows: "This Section is intended to protect victims of rape from public disclosure of statements they make in confidence to counselors of organizations established to help them. * * * Because of the fear and stigma that often results from those crimes, many victims hesitate to seek help even where it is available at no cost to them. As a result they not only fail to receive needed medical care and emergency counseling, but may lack the psychological support necessary to report the crime and aid police in preventing future crimes." (Ill. Rev. Stat. 1985, ch. 110, par. 8-802.1(a).) Moreover, as the appellate court noted in this case, the legislature originally allowed only a qualified privilege for communications between sexual assault counselors and victims but later decided to strengthen the privilege and make it absolute. (149 Ill. App.3d 599, 601-03.) The predecessor statute expressly provided for an in camera inspection of those records, in the manner urged by the defendant here. (See Ill. Rev. Stat., 1982 Supp., ch. 110, par. 8-802.1(c).) The legislature later eliminated that provision, replacing it with a broader statement of confidentiality and adding the penalty provision found in section 8-802.1(d), which makes an unauthorized disclosure a class C misdemeanor. (Ill. Rev. Stat. 1985, ch. 110, pars. 8-802.1(c), (d).) With these amendments, the statute thus became one of the type left unexplored in Ritchie. We also find significant the contention of amicus that the role of rape crisis counselors is not to investigate the occurrence. Rather, the primary purpose of the counseling is to help the victim understand and resolve her feelings about the event. Thus, according to the amicus, an in camera inspection of counseling records would not *349 likely result in the disclosure of any material useful to an accused. It is important to note that in this case the defendant's request for an in camera inspection of the counseling records was merely general; he did not allege that information may exist in the counseling files that would be subject to disclosure. Moreover, the defendant had access to the array of unprivileged statements made by the complaining witness to other persons following the commission of the offenses, including the nearly contemporaneous statements made by the victim to the store clerk, and also had available the victim's testimony at the preliminary hearing. Because of the strong policy of confidentiality expressed in section 8-802.1 and the absence of any indication by the defendant that the victim's communications with the counselor would provide a source of impeachment, we do not believe that the privilege was required to be breached in this case. "The vague assertion that the victim may have made statements to her therapist that might possibly differ from the victim's anticipated trial testimony does not provide a sufficient basis to justify ignoring the victim's right to rely upon her statutory privilege." (People v. District Court (Colo. 1986), 719 P.2d 722, 726; see also Commonwealth v. Two Juveniles (1986), 397 Mass. 261, 269, 491 N.E.2d 234, 239 (before in camera inspection of otherwise privileged sexual assault counseling records may be ordered, accused "must show a legitimate need for access to the communications").) Under the circumstances present here, to abrogate the privilege in this case would require its abrogation in every case, and that we decline to do. We note that under the theory proposed by the dissent, in every case a trial judge could become privy to all counseling records of a sexual assault victim, regardless of what was discussed in the counseling sessions and in the absence of any demonstrated need that would justify *350 such an intrusion. The victim in this case was told that the services of the Quad City Counseling Program were both free and confidential, but under the dissent's view that advice would no longer be appropriate a special admonition would become necessary, to accommodate the very real possibility that a judge later would be examining the records of the counseling sessions. This, we believe, would seriously undermine the valuable, beneficial services of those programs that are within the protection of the statute. In sum, section 8-802.1 of the Code of Civil Procedure evinces a strong public policy in favor of the confidentiality of communications between sexual assault victims and counselors. Unlike the defendant in Davis v. Alaska (1974), 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105, who knew of specific information that could show bias or motive to fabricate on the part of the prosecution witness, and who had no other means of achieving that end, the defendant here has offered no reason to believe that the victim's counseling records would provide a source of impeaching material unavailable from other sources. We conclude that the defendant was not denied due process, nor was his confrontation right violated, by the trial judge's refusal in this case to conduct an in camera inspection of the victim's counseling records. For the reasons stated, the judgment of the appellate court is affirmed. Judgment affirmed. JUSTICE SIMON, dissenting: In the not so distant past a rape victim was forced to undergo an adjudicative ordeal equalling the horror of the original assault in order to bring her attacker to justice. (See Berger, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum. L. Rev. 1 (1977).) Our legislature is to be commended for enacting *351 a powerful rape shield law (Ill. Rev. Stat. 1985, ch. 38, par. 115-7), protecting the victim from humiliating accusations and inquiries into her past sexual history as the price for testifying in a rape case. To further alleviate the duress of victims of rape, the legislature enacted the statute in issue in this case (Ill. Rev. Stat. 1985, ch. 110, par. 8-802.1), absolutely prohibiting disclosure of communications between rape victims and rape counselors unless the victim consents. In its zeal to erase the legal indignities suffered by victims of rape in the past, however, I believe the legislature has gone too far. To deem all communications between victim and counselor absolutely privileged impermissibly impinges upon a defendant's constitutional rights to due process of law and confrontation of the witnesses against him. A balance must be struck between the rights of the accuser and the rights of the accused, in which the victim is shielded from needless intrusions into the rape-counseling process, without denying the defendant the right to discover and utilize information tending to exculpate him. Allowing, at a minimum, in camera inspection by the trial court of the communications between the rape crisis counselor and the victim would achieve the balance necessary to protect the interests of both parties. Most of the rules governing the conduct of litigation under our system of justice are designed to ensure that all relevant and reliable evidence is presented to the fact finder in an orderly manner so that there may be a true and fair resolution of each case. In contrast, privileges are designed to withhold certain evidence from the trier of fact, for the "protection of interests and relationships which * * * are regarded as of sufficient social importance to justify some sacrifice of availability of evidence." (E. Cleary, McCormick on Evidence § 72, at 171 (3d ed. 1984).) As exceptions to the general rule of admissibility of all relevant evidence, privileges should be strictly limited *352 and construed. See 8 J. Wigmore, Evidence in Trials at Common Law § 2291, at 554 (1961) ("privilege remains an exception to the general duty to disclose. Its benefits are all indirect and speculative, its obstruction is plain and concrete. * * * It ought to be strictly confined within the narrowest possible limits * * *"); E. Cleary, McCormick on Evidence § 79, at 192 (3d ed. 1984) ("privileges in general * * * are inept and clumsy devices for promoting the policies they profess to serve, but are extremely effective as stumbling blocks to obstruct the attainment of justice * * *, the movement should be toward restriction of these devices rather than their expansion"); United States v. Nixon (1974), 418 U.S. 683, 41 L.Ed.2d 1039, 94 S.Ct. 3090 (as exceptions to the general rule of disclosure, privileges "are not lightly created nor construed, for they are in derogation of the search for truth"). In determining which interests and relationships should be protected by privilege, and to what extent they should be protected, courts and legislatures must balance the State's interest in the privilege against the constraints the privilege places on the fair and effective administration of justice. In the present case, the State's interest in providing confidential counseling services to the victims of rape must be weighed against the defendant's constitutional rights to due process of law and to confrontation of witnesses against him. Although the State's interest in this case is a strong one and undoubtedly justifies a statute conferring some privilege protection on counseling records (such as the prior Illinois statute providing for in camera review (Ill. Rev. Stat., 1982 Supp., ch. 110, par. 8-802.1(c))), it is not strong enough to sustain an absolute privilege which renders meaningless the defendant's constitutional rights. Based on the due process clause of the fourteenth amendment, the United States Supreme Court has repeatedly *353 refused to restrict a criminal defendant's rights to obtain or introduce potentially exculpatory evidence. (See, e.g., Wardius v. Oregon (1973), 412 U.S. 470, 37 L.Ed.2d 82, 93 S.Ct. 2208; Chambers v. Mississippi (1973), 410 U.S. 284, 35 L.Ed.2d 297, 93 S.Ct. 1038; Washington v. Texas (1967), 388 U.S. 14, 18 L.Ed.2d 1019, 87 S.Ct. 1920.) Where due process rights conflict with claims of privilege, the privilege must yield. In United States v. Nixon (1974), 418 U.S. 683, 41 L.Ed.2d 1039, 94 S.Ct. 3090, President Richard Nixon sought to quash a subpoena seeking disclosure of certain materials in his possession which he claimed were protected by an absolute executive privilege. The President contended the privilege was based on the need for confidentiality of high-level governmental communications and on the doctrine of separation of powers. The Court acknowledged the necessity and validity of executive privilege but held that the policies underlying the privilege could not sustain an absolute immunity from judicial process. In reaching its conclusion, the Court noted that the Constitution "guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate [this] guarantee[], and to accomplish that it is essential that all relevant and admissible evidence be produced. * * * [T]he allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts." Nixon, 418 U.S. at 711-12, 41 L.Ed.2d at 1066, 94 S.Ct. 3109-10. Moreover, the withholding by the government of evidence "that is both favorable to the accused and material to guilt or punishment" violates a defendant's due process rights. (Pennsylvania v. Ritchie (1987), 480 U.S. 39, 57, 94 L.Ed.2d 40, 57, 107 S.Ct. 989, 1001; United States v. Agurs (1976), 427 U.S. 97, 49 L.Ed.2d 342, *354 96 S.Ct. 2392; Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194.) Evidence is "material to guilt or punishment" only if "`there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.'" (Ritchie, 480 U.S. at 57, 94 L.Ed.2d at 57, 107 S.Ct. at 1001, quoting United States v. Bagley (1985), 473 U.S. 667, 87 L.Ed.2d 481, 105 S.Ct. 3375.) In Pennsylvania v. Ritchie (1987), 480 U.S. 39, 94 L.Ed.2d 40, 107 S.Ct. 987, defendant sought review of the contents of a confidential child-abuse file protected by a statutory privilege in order to determine whether there were material facts contained therein which would enable defendant to cross-examine the key witness against him more effectively. A majority of the Court held that due process entitled the defendant to a remand for an in camera review of the file. Although the Court conceded that "the public interest in protecting this type of sensitive information is strong," it concluded that the interest did not "necessarily prevent[] disclosure in all circumstances." (Ritchie, 480 U.S. at 57, 94 L.Ed.2d at 57, 107 S.Ct. at 1002.) Accordingly, the Court ordered that the case be remanded for the trial court to review the privileged file to determine whether it contained evidence favorable and material to the guilt of the defendant. The file at issue in Ritchie, however, was not protected by an absolute statutory privilege, but one which contemplated disclosure of the privileged information if so directed under court order. The Court specifically declined to express an opinion on what the result would be in a case where the information sought by the defendant was protected by an absolute statutory privilege. (Ritchie, 480 U.S. at 57 n. 14, 94 L.Ed.2d 57 n. 14, 107 S.Ct. at 1002 n. 14.) There is no indication, however, that *355 the Court would find that even an absolute privilege would overcome a defendant's due process rights, at least to an in camera review, under the circumstances of the present case. In both Nixon and Ritchie, the Court found that privileges based on compelling interests protection of sensitive information concerning top-level affairs of state and abused children were insufficient to overcome the defendant's right to due process. The State interest in this case is no more compelling than the interests advanced in those cases. Furthermore, without review of the records, the threshold questions which determine whether a defendant's due process rights have been violated whether there is evidence in the file favorable to the defendant and material to his guilt or innocence cannot be answered. As in Ritchie, "it is impossible to say whether any information in the * * * records may be relevant to [the defendant's] claim of innocence, because neither the prosecution nor defense counsel has seen the information." (Ritchie, 480 U.S. at 57, 94 L.Ed.2d at 57, 107 S.Ct. at 1002.) Therefore, like the defendant in Ritchie, defendant should at the very least be given the opportunity to have the trial court review in camera the records in question to determine whether they contain any favorable or material information which the government would be obligated under due process principles to turn over to the defendant. The second constitutional right of the defendant which may be impinged in a criminal proceeding by a witness' invocation of a privilege against disclosure is the sixth amendment right of confrontation. This right guarantees a criminal defendant the right to confront the witnesses against him. An essential component of this right is the defendant's right to cross-examine the witness. (Delaware v. Fensterer (1985), 474 U.S. 15, 88 L.Ed.2d 15, 106 S.Ct. 292 (per curiam); Douglas v. Alabama *356 (1965), 380 U.S. 415, 13 L.Ed.2d 934, 85 S.Ct. 1074; Pointer v. Texas (1965), 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065.) The right to cross-examine includes the right to test the truth and reliability of a witness' testimony, and to call into question his motives, biases, and credibility. (United States v. Abel (1984), 469 U.S. 45, 83 L.Ed.2d 450, 105 S.Ct. 465; Ohio v. Roberts (1980), 448 U.S. 56, 65 L.Ed.2d 597, 100 S.Ct. 2531; Alford v. United States (1931), 282 U.S. 687, 75 L.Ed. 624, 51 S.Ct. 218; Greene v. McElroy (1959), 360 U.S. 474, 3 L.Ed.2d 1377, 79 S.Ct. 1400.) Recognizing the critical function cross-examination serves in a criminal defense, the Supreme Court has "scrupulously guarded against `restrictions imposed by law or by the trial court on the scope of cross-examination.'" (Ritchie, 480 U.S. at 66-67, 94 L.Ed.2d at 63, 107 S.Ct. at 1007 (Brennan, J., dissenting), quoting Delaware v. Fensterer (1985), 474 U.S. 15, 88 L.Ed.2d 15, 106 S.Ct. 292.) The confrontation clause does not guarantee, of course, that the defendant's cross-examination will be effective, but only that defendant will be given "an opportunity for effective cross-examination." (Emphasis in original.) Fensterer, 474 U.S. at 20, 88 L.Ed.2d at 19, 106 S.Ct. at 295. In Ritchie a majority of the Court could not agree on the effect of the confrontation clause on a defendant's right to pretrial discovery of privileged information concerning a government witness. A plurality of the Court thought that so long as a defendant is afforded full cross-examination of the witness at trial, the confrontation clause does not confer upon the defendant any rights to pretrial discovery to aid in that cross-examination. The view of Justices Powell and Brennan, however, was that unless the defendant is afforded pretrial discovery of relevant information pertaining to the witness, the guarantee of the opportunity for effective cross-examination *357 found in the confrontation clause is rendered meaningless. Justice Powell felt that in some cases simply cross-examining the witness at trial, without the benefit of specific information gained through pretrial discovery which could be used for impeachment, would be a useless exercise. In fact, if the defense counsel continued merely cross-examining the witness at length in such a situation, "the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness," leaving the defendant in a worse position than if no cross-examination at all were available. Ritchie, 480 U.S. at 64, 94 L.Ed.2d at 61-62, 107 S.Ct. at 1005 (Blackmun, J., concurring); see also Ritchie, 480 U.S. at 71, 94 L.Ed.2d at 66, 107 S.Ct. at 1009 (Brennan, J., dissenting) ("The creation of a significant impediment to the conduct of cross-examination thus undercuts the protections of the Confrontation Clause, even if that impediment is not erected at the trial itself. * * * [T]he foreclosure of access to prior statements of the testifying victim deprived the defendant of material crucial to the conduct of cross-examination"). Because the plurality's analysis of the confrontation clause issue in Ritchie does not constitute binding precedent, we must look to the Court's earlier cases on the clash between the confrontation clause and claims of privilege for guidance. This brings us to the well-known Davis v. Alaska (1974), 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105, in which the defendant sought to use a government witness' juvenile record to impeach the witness during cross-examination. The State contended that the State's interest in protecting the anonymity of juvenile offenders outweighed the defendant's interest in cross-examination. The Court rejected this argument, holding that the defendant's sixth amendment right to confrontation outweighed the State's interest in protecting *358 juvenile offenders, and that to make cross-examination of the witness effective "defense counsel should have been permitted to expose to the jury the facts [from the witness' privileged records] from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." (Davis, 415 U.S. at 318, 39 L.Ed.2d at 355, 94 S.Ct. at 1111.) Even though the State argued that disclosure of juveniles' records might cause "impairment of rehabilitative goals of juvenile correctional procedures" and juveniles might lose employment opportunities, the Court held that the right of confrontation is paramount. "Whatever temporary embarrassment might result to [the witness] or his family by disclosure of his juvenile record * * * is outweighed by petitioner's right to probe into the influence of possible bias in the testimony of a crucial identification witness. * * * [The witness' right] must fall before the right of the petitioner to seek out the truth in the process of defending himself." (Davis, 415 U.S. at 319-20, 39 L.Ed.2d at 355-56, 94 S.Ct. at 1112.) The Court concluded that "[t]he State's policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness." Davis, 415 U.S. at 320, 39 L.Ed.2d at 356, 94 S.Ct. at 1112; see also Salazar v. State (Alaska 1976), 559 P.2d 66 (confrontation clause outweighs absolute marital privilege); State v. Hembd (1975), 305 Minn. 120, 232 N.W.2d 872 (confrontation rights outweigh physician-patient privilege). In this case, as in Davis, no amount of cross-examination of the witness could have been effective without access to and use of the privileged records. Without specific information from the records, defendant could not expose any inconsistencies in the witness' story which may have been reflected in the version of the events she *359 had previously given to the rape-counseling service. Therefore, by denying defendant pretrial access to the record, the defendant was denied even the opportunity for effective cross-examination in violation of the sixth amendment. Also, it is significant that in this case, as in Davis, the witness protected by the privilege was the crucial witness in the trial, upon whose testimony the jury was likely to reach its verdict. Denial of the opportunity for effective cross-examination of this crucial witness unquestionably could have impeded the defendant's ability to present a defense. The majority makes much of the fact that unlike Davis, where the defendant knew the contents of the privileged record prior to trial, in the present case the defendant cannot specifically state what information in the rape victim's counseling records would be useful in cross-examination: "The defendant's request was merely general * * * and was not supported by any allegations that material useful to the defense of this case was likely to be found in the files * * *. * * * [Defendant's] request for an in camera inspection of the counseling records was merely general; he did not allege that information may exist in counseling files that would be subject to disclosure. * * * [There was no] indication by the defendant that the victim's communications with the counselor would provide a source of impeachment * * *. * * * [D]efendant here has offered no reason to believe that the victim's counseling records would provide a source of impeaching material * * *." (121 Ill.2d at 347-50.) This approach locks the defendant into a perfect Catch-22 position: To gain access to the privileged records defendant must specifically allege what useful information may be contained in the records. However, defendant has no way of making these specific allegations until he has seen the contents of the records. *360 Defendant here has advanced as detailed and specific a theory of the case as he is capable of formulating without access to the records. He has explained his version of the facts and his theory as to why the victim's story differs from his, and has outlined exactly what type of information he seeks. Defendant seeks only "specific communications recounting the offense itself" any statements made by the witness explaining her version of the events on the night in question so that defendant may compare this version with her in-court testimony. Short of using powers of telepathy, defendant has no other method by which to gather more specific information about what might be in the counseling service's records and how this information could be useful to him. Defendant should not be penalized for not being as lucky as the defendant in Davis, who already knew the contents of the privileged records in issue. Furthermore, the State interest in the asserted privilege which must be weighed against defendant's constitutional rights is no more compelling in this case than in Davis. In Davis, although the juvenile witness stood to suffer damage to his reputation and employment possibilities through the discovery of the protected juvenile records, the Court found this insufficient to overcome defendant's right to cross-examination. Here there is even less possibility than in Davis that the witness will be injured by disclosure of the privileged material. If the in camera procedure the defendant suggests were utilized, only the trial court would review the records, and upon review the court might find no information that it deemed necessary to disclose to the defendant. Even if the trial court were to find information that it felt should be disclosed to the defendant for use in cross-examination, it could pertain only to the facts of the incident, not to the witness' feelings or any part of the counseling process. Similarly, the cross-examination using such information *361 would be limited to impeachment of the witness based on inconsistencies between the facts related to the counseling service and later versions of those same facts. There can be no embarrassing cross-examination about the witness' past sexual history, as such cross-examination is prohibited by the Illinois rape shield law. Thus, the only likely embarrassment and damage to reputation the witness might suffer as a result of defendant's cross-examination based on the protected records is damage to the witness' reputation for veracity or bias. A State witness in a criminal trial should never be shielded from this type of damage, as such damage is the very essence of effective cross-examination. It has always been permissible and critical to the defense in a criminal trial to draw into question the witness' credibility. In summary, when the defendant's rights to due process and confrontation are weighed against the State's interest in the absolute confidentiality of the witness' records, it is clear to me that the State's interest must yield. The statute enacted by the legislature, cloaking communications between rape victims and rape counselors in an absolute privilege, is unconstitutional. Numerous other courts have reached similar conclusions. (See, e.g., In re Robert H. (1986), 199 Conn. 693, 509 A.2d 475; In re Pittsburgh Action Against Rape (1981), 454 Pa. 15, 428 A.2d 126; Advisory Opinion to the House of Representatives (R.I. 1983), 469 A.2d 1161; Commonwealth v. Two Juveniles (1986), 397 Mass. 261, 491 N.E.2d 234; People v. Pena (1985), 127 Misc.2d 1057, 487 N.Y.S. 935.) In addition, the Supreme Court has made clear that blanket privileges restricting the admission of relevant evidence, such as the one imposed in this case, are disfavored. See, e.g., United States v. Nixon (1974), 418 U.S. 683, 41 L.Ed.2d 1039, 94 S.Ct. 3090 (rejecting absolute executive privilege); Trammel v. United States (1979), 445 U.S. 40, *362 63 L.Ed.2d 186, 100 S.Ct. 906 (rejecting absolute marital or spousal immunity). This is not to say, however, that defendant should have unlimited access to the counseling records. The rights of both the victim and the defendant can be adequately protected by recognition of a more limited privilege under which records could be reviewed for relevant evidence in camera by the trial court only. Such a procedure ensures continued confidentiality for the victim while protecting defendant's rights to due process and confrontation. The Supreme Court has repeatedly endorsed the use of in camera proceedings as a means of simultaneously protecting sensitive information and the defendant's rights. Pennsylvania v. Ritchie (1987), 480 U.S. 39, 57, 94 L.Ed.2d 40, 57, 107 S.Ct. 989, 1001; United States v. Nixon (1974), 418 U.S. 683, 41 L.Ed.2d 1039, 94 S.Ct. 3090. The majority rejects in camera review, contending that "to abrogate the privilege in this case would require its abrogation in every case." (121 Ill.2d at 349.) This is undoubtedly true, as defendants would be sure to demand an in camera inspection of counseling records in every rape case, in the hope of obtaining information valuable in impeaching the witness. This is a small price to pay, however, to adequately protect the constitutional rights of a defendant whose liberty is at stake. Trial courts utilize in camera proceedings quite frequently, and any additional burden imposed on the trial courts is completely justified when viewed in light of the possible consequences to the defendant resulting from a rape conviction. In addition, the concern that in camera review of the counseling records would negatively affect the therapeutic relationship between the victim and the counselor is not well founded. Neither the thoughts and feelings of the victim, nor the comments of the counselor, would be exposed as a result of an in camera review. The trial court would *363 be looking for, and disclosing to the defendant if necessary, only the facts of the alleged incident as communicated by the victim to the counselor. Such a minimal intrusion should have little, if any, chilling effect on the therapeutic relationship. Finally, although the majority opinion upholds the absolute statutory privilege for rape-counseling communications under the facts of this case, it appears to concede that the privilege is really only a limited one. Emphasizing that defendant failed to allege specific proof that the privileged records would provide a source of impeachment and that the defendant had access to other statements made by the witness which might be used for impeachment, the majority concludes that "the privilege was [not] required to be breached in this case." (Emphasis added.) (121 Ill.2d at 349.) The majority's clear suggestion is that if, like the defendant in Davis, defendant "knew of specific information that could show bias or motive to fabricate on the part of the prosecution witness, and * * * had no other means of achieving that end," defendant would be entitled to access to the privileged records. If, as the majority suggests, access to privileged records would be possible under these circumstances, then it should be equally available to all defendants. Otherwise the privilege would discriminate unfairly against defendants who are not fortunate enough to have access before trial to protected records. For these reasons, I respectfully dissent. I believe that section 8-802.1 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 8-802.1) is unconstitutional and that defendant is entitled, at a minimum, to an in camera inspection by the trial court of the rape counseling service's records. If the in camera review revealed pertinent information, defendant would be entitled to a new trial. | 10-30-2013 | [
"121 Ill.2d 337 (1988) 521 N.E.2d 86 THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LESLIE FOGGY, Appellant. No. 64573. Supreme Court of Illinois. Opinion filed February 11, 1988. *338 Robert Agostinelli, Deputy Defender, and Stephen Omolecki, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant. Neil F. Hartigan, Attorney General, of Springfield (Roma Jones Stewart, Solicitor General, and Kenneth A. Fedinets, Assistant Attorney General, of Chicago, of counsel), for the People. Judy L. Hogan, of Springfield, for amicus curiae Illinois Coalition Against Sexual Assault. Judgment affirmed. JUSTICE MILLER delivered the opinion of the court: Following a jury trial in the circuit court of Rock Island County, the defendant, Leslie Foggy, was convicted of aggravated criminal sexual assault and unlawful restraint.",
"The trial judge sentenced the defendant to concurrent 30-year and 3-year terms of imprisonment for those offenses. The appellate court affirmed the judgment (149 Ill. App.3d 599), and we allowed the defendant's petition for leave to appeal (107 Ill.2d R. 315(a)). The defendant does not contest the sufficiency of the evidence of his guilt, and that evidence may be summarized *339 briefly. The offenses in question occurred in Rock Island on July 18, 1985. The complaining witness, a 26-year-old woman, was abducted from in front of her home around three o'clock that morning by the defendant, who forced her into a car and drove off. The defendant told the victim that he had a gun, and he compelled her to perform oral sex. The defendant eventually drove to a park in the area, where he raped the victim. The defendant later released her near a convenience store, and she told the sales clerk what had happened. The victim was then taken to a local hospital.",
"There, she was shown a photographic array by police, and she identified the defendant as her attacker. The defendant was arrested at his home following the identification. He testified at trial, and he said that the sexual acts were consensual and that afterwards the victim became upset when he refused to give her money. The sole issue raised by the defendant in this appeal concerns the constitutionality of the statutory privilege for communications made to rape crisis counselors. (Ill. Rev. Stat. 1985, ch. 110, par. 8-802.1.) The Illinois Coalition Against Sexual Assault has filed a brief as amicus curiae in support of the provision. Section 8-802.1 of the Code of Civil Procedure provides, in its entirety: \"(a) Purpose. This Section is intended to protect victims of rape from public disclosure of statements they make in confidence to counselors of organizations established to help them.",
"On or after July 1, 1984, `rape' means an act of forced sexual penetration or sexual conduct, as defined in Section 12-12 of the Criminal Code of 1961, as amended, including acts prohibited under Sections 12-13 through 12-16 of the Criminal Code of 1961, as amended. Because of the fear and stigma that often results from those crimes, many victims hesitate to seek help even where it is available at no cost to them. As a result they not only fail to receive needed medical care and emergency counseling, but may lack the psychological *340 support necessary to report the crime and aid police in preventing future crimes. (b) Definitions. As used in this Act: (1) `Rape crisis organization' means any organization or association the major purpose of which is providing information, counseling, and psychological support to victims of any or all of the crimes of aggravated criminal sexual assault, criminal sexual assault, sexual relations between siblings, criminal sexual abuse and aggravated criminal sexual abuse. (2) `Rape crisis counselor' means a person who is employed in any organization or association defined as a rape crisis organization under this Section, who is a psychologist, social worker or a volunteer who has undergone 40 hours of training and is under the control of a direct services supervisor of a rape crisis organization.",
"(3) `Confidential communication' means any communication between an alleged victim of aggravated criminal sexual assault, criminal sexual assault, sexual relations between siblings, criminal sexual abuse and aggravated criminal sexual abuse or an attempt to commit any such offense and a rape crisis counselor in the course of providing information, counseling and advocacy. The term includes all records kept by the counselor or by the organization in the course of providing services to an alleged victim concerning the alleged victim and the services provided. (c) Confidentiality. No rape crisis counselor shall disclose any confidential communication or be examined as a witness in any civil or criminal proceeding as to any confidential communication without the consent of the victim. (d) Any rape crisis counselor who knowingly discloses any confidential communication in violation of this Act commits a Class C misdemeanor.\"",
"Ill. Rev. Stat. 1985, ch. 110, par. 8-802.1. In the aftermath of the assault, the victim sought and obtained counseling from the Quad City Rape/Sexual Assault Counseling Program. Before trial, the defendant issued a subpoena duces tecum on that organization seeking information regarding the complaining witness. Motions to quash were filed by the State and by Joni Dittmer, who *341 was the rape crisis counselor assisting the victim. They contended that the victim's communications with Dittmer were absolutely privileged under section 8-802.1 and therefore could not be disclosed without the victim's consent, which she had not given. A copy of the subpoena does not appear in the record in this case; according to the circuit judge's order, the defendant sought production of \"`all records, reports, notes, memoranda, statements, oral, recorded, or written, and any and all other documents concerning the alleged assault upon the witness.'\" A hearing was conducted on the matter, and at that time counsel narrowed the scope of his request for information, indicating that he was seeking information that could be used for impeachment purposes.",
"At the hearing, the State presented testimony from Berlinda Tyler-Jamison, the program director, and from Joni Dittmer, the counselor in this case, regarding the operation and services of the Quad City Counseling Program. In her testimony, Joni Dittmer explained that she had told the victim that the counseling services were free and confidential. Dittmer said that part of her assistance involved what she termed legal advocacy, which, she explained, meant that she helped the victim keep track of the legal proceedings in the case and would attend court sessions with her.",
"The circuit judge quashed the subpoena, ruling that the communications between Dittmer and the victim were protected from disclosure by the statutory privilege and that the statute was constitutional. Specifically, the circuit judge found that the Quad City Counseling Program was a rape crisis organization within the meaning of section 8-802.1(b)(1), that Dittmer was a rape crisis counselor within the meaning of section 8-802.1(b)(2), and that Dittmer and the victim had had six separate conversations and that each one was a confidential communication within the meaning of section 8-802.1(b)(3). The court also found that at no time had the victim consented *342 to Dittmer's disclosure of any of those communications. The circuit judge also rejected the defendant's argument that the statute was unconstitutional. The judge noted that the victim in this case would be testifying in court and therefore subject to cross-examination. For those reasons, the court did not believe that the communications at issue here represented \"a significant or irreplaceable means of impeaching her as a government witness.\" The judge concluded that there was no substantial conflict in this case between the statutory privilege and the defendant's right to conduct a defense to the charges against him. The circuit judge therefore quashed the subpoena.",
"The appellate court affirmed the trial court's judgment, rejecting the defendant's challenge to the constitutionality of section 8-802.1. The defendant renews here his argument that the privilege accorded by section 8-802.1 to communications between sexual assault victims and counselors violates his Federal constitutional rights to due process and to confront the witnesses against him. (U.S. Const., amends. VI, XIV; Pointer v. Texas (1965), 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065; see also Ill. Const. 1970, art. I, § 8; People v. Tennant (1976), 65 Ill.2d 401, 408 (the Federal and State confrontation clauses \"are meant to protect the same interest\").) The defendant asks for an in camera inspection of the records of the Quad City Counseling Program concerning the victim, with disclosure to the defense of her statements recounting the occurrence. In support of his argument, the defendant cites the decisions of other courts that have refused to enforce, or have refused to recognize, an absolute privilege for communications made by sexual assault victims to counselors.",
"In addition to applying their own precedents concerning privileges, those courts have relied on Davis v. Alaska (1974), 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105, *343 and Washington v. Texas (1967), 388 U.S. 14, 18 L.Ed.2d 1019, 87 S.Ct. 1920, which found constitutional violations in State laws excluding certain forms of evidence from trial, and on United States v. Nixon (1974), 418 U.S. 683, 41 L.Ed.2d 1039, 94 S.Ct. 3090, which rejected a broad claim of executive privilege in the face of an articulated need for information.",
"(See In re Robert H. (1986), 199 Conn. 693, 509 A.2d 475; Advisory Opinion to the House of Representatives (R.I. 1983), 469 A.2d 1161; see also Matter of Pittsburgh Action Against Rape (1981), 494 Pa. 15, 428 A.2d 126 (refusing to recognize a common law privilege for communications made to rape counselors; the legislature has since enacted a statute providing an unqualified privilege (see 42 Pa. Cons. Stat. § 5945.1 (1982)).) A contrary result has been reached by the Colorado Supreme Court, which held that an in camera inspection of a sexual assault victim's counseling records was barred by that State's psychologist/patient privilege. People v. District Court (Colo. 1986), 719 P.2d 722. In Davis v. Alaska (1974), 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105, the Court found a violation of the defendant's confrontation right in a prohibition on certain impeachment. Before trial in that case, the prosecution requested a protective order to preclude defense counsel from cross-examining one of the State's principal witnesses regarding his juvenile record. Defense counsel argued that the information would be relevant to show possible bias on the witness' part in assisting the police in the matter. The trial judge granted the protective order, relying on State provisions that generally precluded use of juvenile records in judicial proceedings.",
"At trial, defense counsel asked the witness whether he was biased in the State's favor but, consistent with the trial judge's ruling, did not make any inquiry concerning the witness' juvenile record. The United States Supreme Court reversed the defendant's conviction. The Court did not believe that *344 the cross-examination of the witness had been adequate, for although defense counsel had been able to ask the witness whether he was biased, counsel had not been able to explore the possible sources of bias.",
"Moreover, the Court did not believe that the State's interest in preserving the confidentiality of juvenile records warranted their broad exclusion in that case. The Court concluded that \"[t]he State's policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of a defense witness.\" (Davis, 415 U.S. at 320, 39 L.Ed.2d at 356, 94 S.Ct. at 1112.) The Court remanded the cause for further proceedings. Discussing Davis, one commentator has noted: \"In the first instance, it is probable that the defendant's ability to challenge claims of privilege as impairing his `right to present a defense' will to some extent be dependent upon the criticality to that defense of the matter protected by the privilege. In Davis, the privileged matter in effect represented a significant and irreplaceable means of impeaching the chief prosecution witness.",
"By contrast, where the privileged matter desired is of significantly lesser probative force or simply cumulative, its denial to the defendant has been held not to violate the constitutional guarantees.\" (McCormick, Evidence § 74.2, at 179 (3d ed. 1984).) In quashing the subpoena, the circuit judge concluded that the material requested by the defendant in this case did not represent critical or irreplaceable information, citing the quoted passage. A similar question was considered recently in Pennsylvania v. Ritchie (1987), 480 U.S. 39, 94 L.Ed.2d 40, 107 S.Ct. 989, which is cited by both the State and the defendant in support of their arguments here. In that case, which involved a confidentiality statute, a plurality of the Court rejected a confrontation clause argument like that made by the defendant in this case. The Court *345 held that an in camera inspection of certain records was required, however.",
"The defendant in Ritchie was charged with committing a number of sexual offenses against his 13-year-old daughter. Before trial, Ritchie subpoenaed the records of a State agency, Children and Youth Services (CYS), seeking information that had been developed in his daughter's case; CYS investigated allegations of mistreatment and neglect of children, and Ritchie's daughter had been referred to the agency by police. CYS claimed a statutory privilege in the records and refused to disclose them. The trial judge agreed with the agency and denied disclosure; Ritchie's case then went to trial, and he was convicted of the charges. The United States Supreme Court considered Ritchie's claim under both the confrontation and compulsory process clauses. Ritchie argued that nondisclosure of the State agency's file interfered with his confrontation right because the files might have contained information, such as inconsistent statements, that would have been useful in cross-examining the complaining witness. The Pennsylvania Supreme Court had agreed with Ritchie, relying in part on Davis v. Alaska (1974), 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105.",
"The plurality in Ritchie characterized confrontation as essentially a trial right and believed that it would be satisfied by the defendant's physically facing the witnesses against him and by counsel's cross-examination of them. The plurality opinion said: \"If we were to accept this broad interpretation of Davis, the effect would be to transform the Confrontation Clause into a constitutionally-compelled rule of pretrial discovery. Nothing in the case law supports such a view. The opinions of this Court show that the right of confrontation is a trial right designed to prevent improper restriction on the types of questions that defense counsel may ask during cross-examination. [Citations.]",
"The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information *346 that might be useful in contradicting unfavorable testimony.\" (Emphasis in original.) (Ritchie, 480 U.S. at 52-53, 94 L.Ed.2d at 54, 107 S.Ct. at 999.) The plurality concluded that \"[b]ecause defense counsel was able to cross-examine all of the trial witnesses fully,\" the failure to disclose the agency's records did not violate Ritchie's confrontation right. 480 U.S. at 54, 94 L.Ed.2d at 55-56, 107 S.Ct. at 1000. In Ritchie the Supreme Court also considered the defendant's argument that nondisclosure of the agency's file violated his sixth amendment guarantee of compulsory process. Analyzing that question in terms of due process, the Court concluded that, under the Pennsylvania statute at issue in that case, the defendant was entitled to have the trial judge conduct an in camera inspection of the records at issue.",
"In Ritchie's case, neither the prosecution nor the defense had seen the information, and the trial judge had not reviewed the entire file. Because the privilege was not absolute, the Court rejected the State's argument that the statutory privilege would preclude an examination of the agency's records in the case. Citing the Pennsylvania statute that provides an absolute privilege for communications between sexual assault victims and their counselors, the Court noted that it was expressing \"no opinion on whether the result in this case would have been different if the statute had protected the CYS files from disclosure to anyone, including law-enforcement and judicial personnel.\" (Emphasis in original.) (Ritchie, 480 U.S. at 57 & n. 14, 94 L.Ed.2d at 57 & n. 14, 107 S.Ct.",
"at 1002 & n. 14.) Rather, the statutory privilege at issue was not absolute, and one exception permitted CYS to \"disclose the reports to a `court of competent jurisdiction pursuant to a court order.'\" (Ritchie, 480 U.S. at 44, 94 L.Ed.2d at 49, 107 S.Ct. at 995.) In light of that exception, the Supreme Court said: *347 \"Given that the Pennsylvania legislature contemplated some use of CYS records in judicial proceedings, we cannot conclude that the statute prevents all disclosure in criminal prosecutions. In the absence of any apparent state policy to the contrary, we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is material to the defense of the accused.\" (Emphasis in original.) (Ritchie, 480 U.S. at 58, 94 L.Ed.2d at 58, 107 S.Ct. at 1002.) The Court did not believe, however, that defense counsel was entitled to review the file himself so that he could argue for the relevance of particular information. Rather, the Court held that an in camera inspection of the file by the trial judge would be sufficient. Ritchie, 480 U.S. at 60, 94 L.Ed.2d at 59, 107 S.Ct.",
"at 1003. The privilege contained in section 8-802.1 is unqualified, and we are therefore met with an issue unresolved by Ritchie: whether an absolute privilege must yield to a criminal defendant's pretrial discovery request for otherwise privileged information that may provide material for use in cross-examining witnesses. Again, we note that the defendant here was requesting only an in camera inspection of the material, with disclosure limited to communications recounting the commission of the offenses. The defendant's request was merely general, however, and was not supported by any allegations that material useful to the defense of this case was likely to be found in the files of the Quad City Counseling Program. From the following analysis of the statutory privilege, we conclude that the defendant's suggested procedure was not constitutionally required in this case.",
"The legislature's intent in section 8-802.1 of the Code of Civil Procedure to protect the confidentiality of communications between sexual assault counselors and *348 victims is clear. The stated purpose of the statute is as follows: \"This Section is intended to protect victims of rape from public disclosure of statements they make in confidence to counselors of organizations established to help them. * * * Because of the fear and stigma that often results from those crimes, many victims hesitate to seek help even where it is available at no cost to them. As a result they not only fail to receive needed medical care and emergency counseling, but may lack the psychological support necessary to report the crime and aid police in preventing future crimes.\" (Ill. Rev. Stat.",
"1985, ch. 110, par. 8-802.1(a).) Moreover, as the appellate court noted in this case, the legislature originally allowed only a qualified privilege for communications between sexual assault counselors and victims but later decided to strengthen the privilege and make it absolute. (149 Ill. App.3d 599, 601-03.) The predecessor statute expressly provided for an in camera inspection of those records, in the manner urged by the defendant here. (See Ill. Rev. Stat., 1982 Supp., ch. 110, par. 8-802.1(c).) The legislature later eliminated that provision, replacing it with a broader statement of confidentiality and adding the penalty provision found in section 8-802.1(d), which makes an unauthorized disclosure a class C misdemeanor.",
"(Ill. Rev. Stat. 1985, ch. 110, pars. 8-802.1(c), (d).) With these amendments, the statute thus became one of the type left unexplored in Ritchie. We also find significant the contention of amicus that the role of rape crisis counselors is not to investigate the occurrence. Rather, the primary purpose of the counseling is to help the victim understand and resolve her feelings about the event. Thus, according to the amicus, an in camera inspection of counseling records would not *349 likely result in the disclosure of any material useful to an accused. It is important to note that in this case the defendant's request for an in camera inspection of the counseling records was merely general; he did not allege that information may exist in the counseling files that would be subject to disclosure.",
"Moreover, the defendant had access to the array of unprivileged statements made by the complaining witness to other persons following the commission of the offenses, including the nearly contemporaneous statements made by the victim to the store clerk, and also had available the victim's testimony at the preliminary hearing. Because of the strong policy of confidentiality expressed in section 8-802.1 and the absence of any indication by the defendant that the victim's communications with the counselor would provide a source of impeachment, we do not believe that the privilege was required to be breached in this case.",
"\"The vague assertion that the victim may have made statements to her therapist that might possibly differ from the victim's anticipated trial testimony does not provide a sufficient basis to justify ignoring the victim's right to rely upon her statutory privilege.\" (People v. District Court (Colo. 1986), 719 P.2d 722, 726; see also Commonwealth v. Two Juveniles (1986), 397 Mass. 261, 269, 491 N.E.2d 234, 239 (before in camera inspection of otherwise privileged sexual assault counseling records may be ordered, accused \"must show a legitimate need for access to the communications\").) Under the circumstances present here, to abrogate the privilege in this case would require its abrogation in every case, and that we decline to do. We note that under the theory proposed by the dissent, in every case a trial judge could become privy to all counseling records of a sexual assault victim, regardless of what was discussed in the counseling sessions and in the absence of any demonstrated need that would justify *350 such an intrusion. The victim in this case was told that the services of the Quad City Counseling Program were both free and confidential, but under the dissent's view that advice would no longer be appropriate a special admonition would become necessary, to accommodate the very real possibility that a judge later would be examining the records of the counseling sessions.",
"This, we believe, would seriously undermine the valuable, beneficial services of those programs that are within the protection of the statute. In sum, section 8-802.1 of the Code of Civil Procedure evinces a strong public policy in favor of the confidentiality of communications between sexual assault victims and counselors. Unlike the defendant in Davis v. Alaska (1974), 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105, who knew of specific information that could show bias or motive to fabricate on the part of the prosecution witness, and who had no other means of achieving that end, the defendant here has offered no reason to believe that the victim's counseling records would provide a source of impeaching material unavailable from other sources. We conclude that the defendant was not denied due process, nor was his confrontation right violated, by the trial judge's refusal in this case to conduct an in camera inspection of the victim's counseling records.",
"For the reasons stated, the judgment of the appellate court is affirmed. Judgment affirmed. JUSTICE SIMON, dissenting: In the not so distant past a rape victim was forced to undergo an adjudicative ordeal equalling the horror of the original assault in order to bring her attacker to justice. (See Berger, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum. L. Rev. 1 (1977).) Our legislature is to be commended for enacting *351 a powerful rape shield law (Ill. Rev. Stat. 1985, ch.",
"38, par. 115-7), protecting the victim from humiliating accusations and inquiries into her past sexual history as the price for testifying in a rape case. To further alleviate the duress of victims of rape, the legislature enacted the statute in issue in this case (Ill. Rev. Stat. 1985, ch. 110, par. 8-802.1), absolutely prohibiting disclosure of communications between rape victims and rape counselors unless the victim consents. In its zeal to erase the legal indignities suffered by victims of rape in the past, however, I believe the legislature has gone too far. To deem all communications between victim and counselor absolutely privileged impermissibly impinges upon a defendant's constitutional rights to due process of law and confrontation of the witnesses against him. A balance must be struck between the rights of the accuser and the rights of the accused, in which the victim is shielded from needless intrusions into the rape-counseling process, without denying the defendant the right to discover and utilize information tending to exculpate him. Allowing, at a minimum, in camera inspection by the trial court of the communications between the rape crisis counselor and the victim would achieve the balance necessary to protect the interests of both parties. Most of the rules governing the conduct of litigation under our system of justice are designed to ensure that all relevant and reliable evidence is presented to the fact finder in an orderly manner so that there may be a true and fair resolution of each case.",
"In contrast, privileges are designed to withhold certain evidence from the trier of fact, for the \"protection of interests and relationships which * * * are regarded as of sufficient social importance to justify some sacrifice of availability of evidence.\" (E. Cleary, McCormick on Evidence § 72, at 171 (3d ed. 1984).) As exceptions to the general rule of admissibility of all relevant evidence, privileges should be strictly limited *352 and construed. See 8 J. Wigmore, Evidence in Trials at Common Law § 2291, at 554 (1961) (\"privilege remains an exception to the general duty to disclose. Its benefits are all indirect and speculative, its obstruction is plain and concrete. * * * It ought to be strictly confined within the narrowest possible limits * * *\"); E. Cleary, McCormick on Evidence § 79, at 192 (3d ed.",
"1984) (\"privileges in general * * * are inept and clumsy devices for promoting the policies they profess to serve, but are extremely effective as stumbling blocks to obstruct the attainment of justice * * *, the movement should be toward restriction of these devices rather than their expansion\"); United States v. Nixon (1974), 418 U.S. 683, 41 L.Ed.2d 1039, 94 S.Ct. 3090 (as exceptions to the general rule of disclosure, privileges \"are not lightly created nor construed, for they are in derogation of the search for truth\"). In determining which interests and relationships should be protected by privilege, and to what extent they should be protected, courts and legislatures must balance the State's interest in the privilege against the constraints the privilege places on the fair and effective administration of justice. In the present case, the State's interest in providing confidential counseling services to the victims of rape must be weighed against the defendant's constitutional rights to due process of law and to confrontation of witnesses against him. Although the State's interest in this case is a strong one and undoubtedly justifies a statute conferring some privilege protection on counseling records (such as the prior Illinois statute providing for in camera review (Ill. Rev. Stat., 1982 Supp., ch.",
"110, par. 8-802.1(c))), it is not strong enough to sustain an absolute privilege which renders meaningless the defendant's constitutional rights. Based on the due process clause of the fourteenth amendment, the United States Supreme Court has repeatedly *353 refused to restrict a criminal defendant's rights to obtain or introduce potentially exculpatory evidence. (See, e.g., Wardius v. Oregon (1973), 412 U.S. 470, 37 L.Ed.2d 82, 93 S.Ct. 2208; Chambers v. Mississippi (1973), 410 U.S. 284, 35 L.Ed.2d 297, 93 S.Ct.",
"1038; Washington v. Texas (1967), 388 U.S. 14, 18 L.Ed.2d 1019, 87 S.Ct. 1920.) Where due process rights conflict with claims of privilege, the privilege must yield. In United States v. Nixon (1974), 418 U.S. 683, 41 L.Ed.2d 1039, 94 S.Ct. 3090, President Richard Nixon sought to quash a subpoena seeking disclosure of certain materials in his possession which he claimed were protected by an absolute executive privilege. The President contended the privilege was based on the need for confidentiality of high-level governmental communications and on the doctrine of separation of powers.",
"The Court acknowledged the necessity and validity of executive privilege but held that the policies underlying the privilege could not sustain an absolute immunity from judicial process. In reaching its conclusion, the Court noted that the Constitution \"guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate [this] guarantee[], and to accomplish that it is essential that all relevant and admissible evidence be produced. * * * [T]he allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.\"",
"Nixon, 418 U.S. at 711-12, 41 L.Ed.2d at 1066, 94 S.Ct. 3109-10. Moreover, the withholding by the government of evidence \"that is both favorable to the accused and material to guilt or punishment\" violates a defendant's due process rights. (Pennsylvania v. Ritchie (1987), 480 U.S. 39, 57, 94 L.Ed.2d 40, 57, 107 S.Ct. 989, 1001; United States v. Agurs (1976), 427 U.S. 97, 49 L.Ed.2d 342, *354 96 S.Ct. 2392; Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194.) Evidence is \"material to guilt or punishment\" only if \"`there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A \"reasonable probability\" is a probability sufficient to undermine confidence in the outcome.'\" (Ritchie, 480 U.S. at 57, 94 L.Ed.2d at 57, 107 S.Ct. at 1001, quoting United States v. Bagley (1985), 473 U.S. 667, 87 L.Ed.2d 481, 105 S.Ct. 3375.)",
"In Pennsylvania v. Ritchie (1987), 480 U.S. 39, 94 L.Ed.2d 40, 107 S.Ct. 987, defendant sought review of the contents of a confidential child-abuse file protected by a statutory privilege in order to determine whether there were material facts contained therein which would enable defendant to cross-examine the key witness against him more effectively. A majority of the Court held that due process entitled the defendant to a remand for an in camera review of the file. Although the Court conceded that \"the public interest in protecting this type of sensitive information is strong,\" it concluded that the interest did not \"necessarily prevent[] disclosure in all circumstances.\" (Ritchie, 480 U.S. at 57, 94 L.Ed.2d at 57, 107 S.Ct.",
"at 1002.) Accordingly, the Court ordered that the case be remanded for the trial court to review the privileged file to determine whether it contained evidence favorable and material to the guilt of the defendant. The file at issue in Ritchie, however, was not protected by an absolute statutory privilege, but one which contemplated disclosure of the privileged information if so directed under court order. The Court specifically declined to express an opinion on what the result would be in a case where the information sought by the defendant was protected by an absolute statutory privilege. (Ritchie, 480 U.S. at 57 n. 14, 94 L.Ed.2d 57 n. 14, 107 S.Ct. at 1002 n. 14.) There is no indication, however, that *355 the Court would find that even an absolute privilege would overcome a defendant's due process rights, at least to an in camera review, under the circumstances of the present case. In both Nixon and Ritchie, the Court found that privileges based on compelling interests protection of sensitive information concerning top-level affairs of state and abused children were insufficient to overcome the defendant's right to due process.",
"The State interest in this case is no more compelling than the interests advanced in those cases. Furthermore, without review of the records, the threshold questions which determine whether a defendant's due process rights have been violated whether there is evidence in the file favorable to the defendant and material to his guilt or innocence cannot be answered. As in Ritchie, \"it is impossible to say whether any information in the * * * records may be relevant to [the defendant's] claim of innocence, because neither the prosecution nor defense counsel has seen the information.\" (Ritchie, 480 U.S. at 57, 94 L.Ed.2d at 57, 107 S.Ct. at 1002.) Therefore, like the defendant in Ritchie, defendant should at the very least be given the opportunity to have the trial court review in camera the records in question to determine whether they contain any favorable or material information which the government would be obligated under due process principles to turn over to the defendant. The second constitutional right of the defendant which may be impinged in a criminal proceeding by a witness' invocation of a privilege against disclosure is the sixth amendment right of confrontation. This right guarantees a criminal defendant the right to confront the witnesses against him.",
"An essential component of this right is the defendant's right to cross-examine the witness. (Delaware v. Fensterer (1985), 474 U.S. 15, 88 L.Ed.2d 15, 106 S.Ct. 292 (per curiam); Douglas v. Alabama *356 (1965), 380 U.S. 415, 13 L.Ed.2d 934, 85 S.Ct. 1074; Pointer v. Texas (1965), 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065.) The right to cross-examine includes the right to test the truth and reliability of a witness' testimony, and to call into question his motives, biases, and credibility. (United States v. Abel (1984), 469 U.S. 45, 83 L.Ed.2d 450, 105 S.Ct. 465; Ohio v. Roberts (1980), 448 U.S. 56, 65 L.Ed.2d 597, 100 S.Ct. 2531; Alford v. United States (1931), 282 U.S. 687, 75 L.Ed.",
"624, 51 S.Ct. 218; Greene v. McElroy (1959), 360 U.S. 474, 3 L.Ed.2d 1377, 79 S.Ct. 1400.) Recognizing the critical function cross-examination serves in a criminal defense, the Supreme Court has \"scrupulously guarded against `restrictions imposed by law or by the trial court on the scope of cross-examination.'\" (Ritchie, 480 U.S. at 66-67, 94 L.Ed.2d at 63, 107 S.Ct. at 1007 (Brennan, J., dissenting), quoting Delaware v. Fensterer (1985), 474 U.S. 15, 88 L.Ed.2d 15, 106 S.Ct. 292.) The confrontation clause does not guarantee, of course, that the defendant's cross-examination will be effective, but only that defendant will be given \"an opportunity for effective cross-examination.\" (Emphasis in original.) Fensterer, 474 U.S. at 20, 88 L.Ed.2d at 19, 106 S.Ct. at 295. In Ritchie a majority of the Court could not agree on the effect of the confrontation clause on a defendant's right to pretrial discovery of privileged information concerning a government witness.",
"A plurality of the Court thought that so long as a defendant is afforded full cross-examination of the witness at trial, the confrontation clause does not confer upon the defendant any rights to pretrial discovery to aid in that cross-examination. The view of Justices Powell and Brennan, however, was that unless the defendant is afforded pretrial discovery of relevant information pertaining to the witness, the guarantee of the opportunity for effective cross-examination *357 found in the confrontation clause is rendered meaningless. Justice Powell felt that in some cases simply cross-examining the witness at trial, without the benefit of specific information gained through pretrial discovery which could be used for impeachment, would be a useless exercise.",
"In fact, if the defense counsel continued merely cross-examining the witness at length in such a situation, \"the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness,\" leaving the defendant in a worse position than if no cross-examination at all were available. Ritchie, 480 U.S. at 64, 94 L.Ed.2d at 61-62, 107 S.Ct. at 1005 (Blackmun, J., concurring); see also Ritchie, 480 U.S. at 71, 94 L.Ed.2d at 66, 107 S.Ct. at 1009 (Brennan, J., dissenting) (\"The creation of a significant impediment to the conduct of cross-examination thus undercuts the protections of the Confrontation Clause, even if that impediment is not erected at the trial itself. * * * [T]he foreclosure of access to prior statements of the testifying victim deprived the defendant of material crucial to the conduct of cross-examination\"). Because the plurality's analysis of the confrontation clause issue in Ritchie does not constitute binding precedent, we must look to the Court's earlier cases on the clash between the confrontation clause and claims of privilege for guidance. This brings us to the well-known Davis v. Alaska (1974), 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105, in which the defendant sought to use a government witness' juvenile record to impeach the witness during cross-examination. The State contended that the State's interest in protecting the anonymity of juvenile offenders outweighed the defendant's interest in cross-examination.",
"The Court rejected this argument, holding that the defendant's sixth amendment right to confrontation outweighed the State's interest in protecting *358 juvenile offenders, and that to make cross-examination of the witness effective \"defense counsel should have been permitted to expose to the jury the facts [from the witness' privileged records] from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.\" (Davis, 415 U.S. at 318, 39 L.Ed.2d at 355, 94 S.Ct. at 1111.) Even though the State argued that disclosure of juveniles' records might cause \"impairment of rehabilitative goals of juvenile correctional procedures\" and juveniles might lose employment opportunities, the Court held that the right of confrontation is paramount. \"Whatever temporary embarrassment might result to [the witness] or his family by disclosure of his juvenile record * * * is outweighed by petitioner's right to probe into the influence of possible bias in the testimony of a crucial identification witness. * * * [The witness' right] must fall before the right of the petitioner to seek out the truth in the process of defending himself.\"",
"(Davis, 415 U.S. at 319-20, 39 L.Ed.2d at 355-56, 94 S.Ct. at 1112.) The Court concluded that \"[t]he State's policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness.\" Davis, 415 U.S. at 320, 39 L.Ed.2d at 356, 94 S.Ct. at 1112; see also Salazar v. State (Alaska 1976), 559 P.2d 66 (confrontation clause outweighs absolute marital privilege); State v. Hembd (1975), 305 Minn. 120, 232 N.W.2d 872 (confrontation rights outweigh physician-patient privilege). In this case, as in Davis, no amount of cross-examination of the witness could have been effective without access to and use of the privileged records. Without specific information from the records, defendant could not expose any inconsistencies in the witness' story which may have been reflected in the version of the events she *359 had previously given to the rape-counseling service. Therefore, by denying defendant pretrial access to the record, the defendant was denied even the opportunity for effective cross-examination in violation of the sixth amendment.",
"Also, it is significant that in this case, as in Davis, the witness protected by the privilege was the crucial witness in the trial, upon whose testimony the jury was likely to reach its verdict. Denial of the opportunity for effective cross-examination of this crucial witness unquestionably could have impeded the defendant's ability to present a defense. The majority makes much of the fact that unlike Davis, where the defendant knew the contents of the privileged record prior to trial, in the present case the defendant cannot specifically state what information in the rape victim's counseling records would be useful in cross-examination: \"The defendant's request was merely general * * * and was not supported by any allegations that material useful to the defense of this case was likely to be found in the files * * *. * * * [Defendant's] request for an in camera inspection of the counseling records was merely general; he did not allege that information may exist in counseling files that would be subject to disclosure.",
"* * * [There was no] indication by the defendant that the victim's communications with the counselor would provide a source of impeachment * * *. * * * [D]efendant here has offered no reason to believe that the victim's counseling records would provide a source of impeaching material * * *.\" (121 Ill.2d at 347-50.) This approach locks the defendant into a perfect Catch-22 position: To gain access to the privileged records defendant must specifically allege what useful information may be contained in the records. However, defendant has no way of making these specific allegations until he has seen the contents of the records. *360 Defendant here has advanced as detailed and specific a theory of the case as he is capable of formulating without access to the records. He has explained his version of the facts and his theory as to why the victim's story differs from his, and has outlined exactly what type of information he seeks. Defendant seeks only \"specific communications recounting the offense itself\" any statements made by the witness explaining her version of the events on the night in question so that defendant may compare this version with her in-court testimony.",
"Short of using powers of telepathy, defendant has no other method by which to gather more specific information about what might be in the counseling service's records and how this information could be useful to him. Defendant should not be penalized for not being as lucky as the defendant in Davis, who already knew the contents of the privileged records in issue. Furthermore, the State interest in the asserted privilege which must be weighed against defendant's constitutional rights is no more compelling in this case than in Davis. In Davis, although the juvenile witness stood to suffer damage to his reputation and employment possibilities through the discovery of the protected juvenile records, the Court found this insufficient to overcome defendant's right to cross-examination. Here there is even less possibility than in Davis that the witness will be injured by disclosure of the privileged material.",
"If the in camera procedure the defendant suggests were utilized, only the trial court would review the records, and upon review the court might find no information that it deemed necessary to disclose to the defendant. Even if the trial court were to find information that it felt should be disclosed to the defendant for use in cross-examination, it could pertain only to the facts of the incident, not to the witness' feelings or any part of the counseling process. Similarly, the cross-examination using such information *361 would be limited to impeachment of the witness based on inconsistencies between the facts related to the counseling service and later versions of those same facts. There can be no embarrassing cross-examination about the witness' past sexual history, as such cross-examination is prohibited by the Illinois rape shield law. Thus, the only likely embarrassment and damage to reputation the witness might suffer as a result of defendant's cross-examination based on the protected records is damage to the witness' reputation for veracity or bias. A State witness in a criminal trial should never be shielded from this type of damage, as such damage is the very essence of effective cross-examination. It has always been permissible and critical to the defense in a criminal trial to draw into question the witness' credibility.",
"In summary, when the defendant's rights to due process and confrontation are weighed against the State's interest in the absolute confidentiality of the witness' records, it is clear to me that the State's interest must yield. The statute enacted by the legislature, cloaking communications between rape victims and rape counselors in an absolute privilege, is unconstitutional. Numerous other courts have reached similar conclusions. (See, e.g., In re Robert H. (1986), 199 Conn. 693, 509 A.2d 475; In re Pittsburgh Action Against Rape (1981), 454 Pa. 15, 428 A.2d 126; Advisory Opinion to the House of Representatives (R.I. 1983), 469 A.2d 1161; Commonwealth v. Two Juveniles (1986), 397 Mass. 261, 491 N.E.2d 234; People v. Pena (1985), 127 Misc.2d 1057, 487 N.Y.S. 935.) In addition, the Supreme Court has made clear that blanket privileges restricting the admission of relevant evidence, such as the one imposed in this case, are disfavored.",
"See, e.g., United States v. Nixon (1974), 418 U.S. 683, 41 L.Ed.2d 1039, 94 S.Ct. 3090 (rejecting absolute executive privilege); Trammel v. United States (1979), 445 U.S. 40, *362 63 L.Ed.2d 186, 100 S.Ct. 906 (rejecting absolute marital or spousal immunity). This is not to say, however, that defendant should have unlimited access to the counseling records. The rights of both the victim and the defendant can be adequately protected by recognition of a more limited privilege under which records could be reviewed for relevant evidence in camera by the trial court only. Such a procedure ensures continued confidentiality for the victim while protecting defendant's rights to due process and confrontation. The Supreme Court has repeatedly endorsed the use of in camera proceedings as a means of simultaneously protecting sensitive information and the defendant's rights.",
"Pennsylvania v. Ritchie (1987), 480 U.S. 39, 57, 94 L.Ed.2d 40, 57, 107 S.Ct. 989, 1001; United States v. Nixon (1974), 418 U.S. 683, 41 L.Ed.2d 1039, 94 S.Ct. 3090. The majority rejects in camera review, contending that \"to abrogate the privilege in this case would require its abrogation in every case.\" (121 Ill.2d at 349.) This is undoubtedly true, as defendants would be sure to demand an in camera inspection of counseling records in every rape case, in the hope of obtaining information valuable in impeaching the witness. This is a small price to pay, however, to adequately protect the constitutional rights of a defendant whose liberty is at stake. Trial courts utilize in camera proceedings quite frequently, and any additional burden imposed on the trial courts is completely justified when viewed in light of the possible consequences to the defendant resulting from a rape conviction. In addition, the concern that in camera review of the counseling records would negatively affect the therapeutic relationship between the victim and the counselor is not well founded.",
"Neither the thoughts and feelings of the victim, nor the comments of the counselor, would be exposed as a result of an in camera review. The trial court would *363 be looking for, and disclosing to the defendant if necessary, only the facts of the alleged incident as communicated by the victim to the counselor. Such a minimal intrusion should have little, if any, chilling effect on the therapeutic relationship. Finally, although the majority opinion upholds the absolute statutory privilege for rape-counseling communications under the facts of this case, it appears to concede that the privilege is really only a limited one. Emphasizing that defendant failed to allege specific proof that the privileged records would provide a source of impeachment and that the defendant had access to other statements made by the witness which might be used for impeachment, the majority concludes that \"the privilege was [not] required to be breached in this case.\" (Emphasis added.)",
"(121 Ill.2d at 349.) The majority's clear suggestion is that if, like the defendant in Davis, defendant \"knew of specific information that could show bias or motive to fabricate on the part of the prosecution witness, and * * * had no other means of achieving that end,\" defendant would be entitled to access to the privileged records. If, as the majority suggests, access to privileged records would be possible under these circumstances, then it should be equally available to all defendants.",
"Otherwise the privilege would discriminate unfairly against defendants who are not fortunate enough to have access before trial to protected records. For these reasons, I respectfully dissent. I believe that section 8-802.1 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 8-802.1) is unconstitutional and that defendant is entitled, at a minimum, to an in camera inspection by the trial court of the rape counseling service's records. If the in camera review revealed pertinent information, defendant would be entitled to a new trial."
]
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b' DEPARTMENT OF HOMELAND SECURITY\n\n Office of Inspector General\n\n Information Technology\n Management Letter\n for the FY 2005 DHS\n Financial Statement Audit\n (Redacted)\n\n\n\n\n Notice: The Department of Homeland Security, Office of Inspector General, has redacted\n this report for public release. The redactions are identified as (b)(2), comparable to 5\n U.S.C. \xc2\xa7 552 (b)(2). A review under the Freedom of Information Act will be conducted upon\n request.\n\n\n\n\n Office of Information Technology\nOIG-06-49 July 2006\n\x0c Office of Inspector General\n\n U.S. Department of Homeland Security\n Washington, DC 20528\n\n\n\n\n July 10, 2006\n\n Preface\n\nThe Department of Homeland Security (DHS) Office of Inspector General (OIG) was established by\nthe Homeland Security Act of 2002 (Public Law 107-296) by amendment to the Inspector General\nAct of 1978. This is one of a series of audit, inspection, and special reports published by our office\nas part of our DHS oversight responsibility to promote economy, effectiveness, and efficiency within\nthe department.\n\nThis report presents the information technology (IT) management letter for DHS\xe2\x80\x99 FY 2005 financial\nstatement audit. It contains observations and recommendations related to information technology\ninternal control that were not required to be reported in the financial statement audit report (OIG-06-\n09, November 2005) and represents the separate restricted distribution report mentioned in that\nreport. The independent accounting firm KPMG LLP (KPMG) performed the audit of DHS\xe2\x80\x99\nfinancial statement as of September 30, 2005, and prepared this IT management letter. KPMG is\nresponsible for the attached IT management letter dated December 15, 2005, and the conclusions\nexpressed in it. We do not express opinions on DHS\xe2\x80\x99 financial statements or internal control or\nconclusion on compliance with laws and regulations.\n\nThe recommendations herein have been discussed in draft with those responsible for\nimplementation. It is our hope that this report will result in more effective, efficient, and economical\noperations. We express our appreciation to all of those who contributed to the preparation of this\nreport.\n\n\n Richard L. Skinner\n Inspector General\n\x0c\x0c\x0c Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\n INFORMATION TECHNOLOGY MANAGEMENT LETTER\n\n TABLE OF CONTENTS\n Page\n\nObjective, Scope and Approach 1\n\nSummary of Findings and Recommendations 2\n\nFindings by Audit Area 2\n\n Entity-Wide Security Program Planning and Management 2\n\n Access Controls 3\n\n Application Software Development and Change Controls 4\n\n System Software 4\n\n Segregation of Duties 5\n\n Service Continuity 5\n\n Application Controls 6\n\n APPENDICES\n\n Appendix Subject Page\n\n\n Description of Key Financial Systems and IT Infrastructure within the\n A 8\n Scope of the FY 2005 DHS Financial Statement Audit\n\n\n\n FY 2005 Notice of IT Findings and Recommendations - Detail by DHS\n B 15\n Organizational Element\n\n\n\n Status of Prior Year Notices of Findings and Recommendations and\n C 53\n Comparison to Current Year Notices of Findings and Recommendations\n\n\n D Management Response to Draft DHS IT Management Letter 59\n\x0c Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n OBJECTIVE, SCOPE AND APPROACH\nKPMG performed an audit of DHS IT general controls in support of the FY 2005 DHS financial\nstatement engagement. The overall objective of our audit was to evaluate the effectiveness of IT\ngeneral controls of DHS\xe2\x80\x99 financial processing environment and related IT infrastructure as necessary\nto support the engagement. The Federal Information System Controls Audit Manual (FISCAM),\nissued by the Government Accountability Office, formed the basis of our audit. The scope of the IT\ngeneral controls assessment included testing at DHS\xe2\x80\x99 Office of the Chief Financial Officer (OCFO),\nand all significant DHS component as described in Appendix A.\n\nFISCAM was designed to inform financial auditors about IT controls and related audit concerns to\nassist them in planning their audit work and to integrate the work of auditors with other aspects of the\nfinancial audit. FISCAM also provides guidance to IT auditors when considering the scope and\nextent of review that generally should be performed when evaluating general controls and the IT\nenvironment of a federal agency. FISCAM defines the following six control functions to be essential\nto the effective operation of the general IT controls environment.\n\n \xe2\x80\xa2 Entity-wide security program planning and management (EWS) \xe2\x80\x93 Controls that provide a\n framework and continuing cycle of activity for managing risk, developing security policies,\n assigning responsibilities, and monitoring the adequacy of computer-related security controls.\n \xe2\x80\xa2 Access control (AC) \xe2\x80\x93 Controls that limit and/or monitor access to computer resources (data,\n programs, equipment, and facilities) to protect against unauthorized modification, loss, and\n disclosure.\n \xe2\x80\xa2 Application software development and change control (ASDCC) \xe2\x80\x93 Controls that help to\n prevent the implementation of unauthorized programs or modifications to existing programs.\n \xe2\x80\xa2 System software (SS) \xe2\x80\x93 Controls that limit and monitor access to powerful programs that\n operate computer hardware.\n \xe2\x80\xa2 Segregation of duties (SD) \xe2\x80\x93 Controls that constitute policies, procedures, and an\n organizational structure to prevent one individual from controlling key aspects of computer-\n related operations, thus deterring unauthorized actions or access to assets or records.\n \xe2\x80\xa2 Service continuity (SC) \xe2\x80\x93 Controls that involve procedures for continuing critical operations\n without interruption, or with prompt resumption, when unexpected events occur.\n\nIn addition to testing DHS\xe2\x80\x99 general control environment, KPMG performed application control tests\non a limited number of DHS financial systems and applications. The application control testing was\nperformed to assess the controls that support the financial systems\xe2\x80\x99 internal controls over the input,\nprocessing, and output of financial data and transactions.\n\n \xe2\x80\xa2 Application Controls (APC) - Application controls are the structure, policies, and procedures\n that apply to separate, individual application systems, such as accounts payable, inventory,\n payroll, grants, or loans.\n\nTo complement our general IT controls audit, we also performed technical security testing for key\nnetwork and system devices, as well as testing over key financial application controls. The technical\nsecurity testing was performed both over the Internet and from within select DHS facilities, and was\nfocused on test, development, and production devices that directly support DHS financial processing\nand key general support systems.\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 1\n\x0c Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n SUMMARY OF FINDINGS AND RECOMMENDATIONS\nDuring FY 2005 DHS took corrective action to address many prior year IT control weaknesses.\nHowever, during FY 2005, we continued to find IT general control weaknesses at each DHS\ncomponent. The most significant information security weaknesses from a financial statement audit\nperspective relate to entity-wide security, access controls, and service continuity. Collectively, these\nIT control weaknesses limit DHS\xe2\x80\x99 ability to ensure that critical financial and operational data is\nmaintained in such a manner to ensure confidentiality, integrity, and availability. In addition, these\nweaknesses negatively impact the internal controls over DHS financial reporting and its operation,\nand we consider them to collectively represent a material weakness for financial system security\nunder standards established by the AICPA and accepted by the GAO.\n\nDuring fiscal year 2005, DHS took several actions to improve its IT general control environment, and to\naddress many prior year general IT control issues. For example, the Coast Guard has begun performing\nregular technical vulnerability scans on their information technology network and key systems. These\nscans resulted in the reduction of the number of conditions our audit team identified during our testing. In\naddition, DHS issued an update to DHS Policy 4300A, Sensitive System Handbook. The purpose of this\nHandbook update was to provide specific techniques and procedures for implementing the requirements\nof DHS\xe2\x80\x99 IT Security Program for Sensitive Systems. These actions resulted in the correction of some\nconditions we reported in 2004. DHS needs further emphasis on the monitoring and enforcement of the\npolicies and procedures through the performance of periodic security control assessments and audits.\n\n FINDINGS BY IT AUDIT AREA\nEntity-Wide Security Program Planning and Management\n\nDuring FY 2005 DHS continued to make progress in having all of its financial systems certified and\naccredited. However, continued efforts are needed, especially in the areas of program management\nrelated to the detection and monitoring of technical information security weaknesses. Collectively,\nthe identified entity-wide security planning and management issues, coupled with the access control\nissues described later in this management letter, reduce the overall effectiveness of the entity-wide\nsecurity programs for the individual DHS components and the overall Department.\n\nConditions noted in FY 2005 regarding entity-wide security program planning and management at\nDHS were:\n\n\xe2\x80\xa2 EWS-05\xe2\x80\x931: Despite improvements in the process of performing Certification and Accreditation\n (C&A) of IT systems, five DHS component financial and associated feeder systems were not properly\n certified and accredited.\n\xe2\x80\xa2 EWS-05-2: Instances of fragmented, incomplete, or missing security policies and procedures relating\n to the hiring and termination of employees, reviewing of access to key financial systems, computer\n incident response capabilities, and interconnectivity agreements exist.\n\nRecommendations:\n\nWe recommend that the DHS Office of Chief Information Officer in coordination with the OCFO:\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 2\n\x0c Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\na) Ensure adherence to a DHS C&A program across all DHS components, which should include an\n emphasis on a consistent and thorough approach to the testing of key technical controls during the\n certification process; and\nb) Ensure the consistent implementation of security programs, policies, and procedures.\n\nAccess Controls\n\nDuring FY 2005 we noted significant access control vulnerabilities with internal IT systems (i.e.,\ninside the components\xe2\x80\x99 firewalls). These are significant issues because personnel inside the\norganization who best understand the organization\xe2\x80\x99s systems, applications, and business processes are\nable to have unauthorized access to some systems and applications. Some of the identified vulnerable\ndevices are used for test and development purposes. In some cases, users are able to access test and\ndevelopment devices with group passwords, system default passwords, or the same passwords with\nwhich they log into production devices. As a result, test and development devices could be a target of\nhackers/crackers to obtain information (i.e., user password listings) that can be used to attempt further\naccess into DHS\xe2\x80\x99 IT environment.\n\nConditions noted in FY 2005 regarding access controls at DHS were:\n\n\xe2\x80\xa2 AC-05-1: Instances of missing and weak user passwords on key servers and databases.\n\xe2\x80\xa2 AC-05-2: User account lists were not periodically reviewed for appropriateness, and inappropriate\n authorizations and excessive access privileges for group user accounts were allowed.\n\xe2\x80\xa2 AC-05-3: Instances where workstations, servers, or network devices were configured without\n necessary security patches, or were not configured in the most secure manner.\n\xe2\x80\xa2 AC-05-4: Application and operating system settings were not configured for automatic log-off or\n account lockout.\n\nRecommendations:\n\nWe recommend that the DHS Office of Chief Information Officer in coordination with the OCFO:\na) Ensure that password controls meet DHS password requirements on all key financial systems;\nb) Implement an account management certification process within all the components, to ensure the\n periodic review of user accounts for appropriate access;\nc) Implement a DHS-wide patch and security configuration process, and ensure compliance with the\n requirement that systems are periodically tested by individual DHS components and the DHS-CIO;\n and\nd) Conduct periodic vulnerability assessments, whereby systems are periodically reviewed for access\n controls not in compliance with DHS and Federal guidance.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 3\n\x0c Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\nApplication Software Development and Change Control\n\nDuring FY 2005 we noted that DHS took corrective actions to address IT control issues related to\napplication software changes. However, we noted that in some cases the application software change\ncontrol documentation was still not consistent with DHS systems development life cycle (SDLC)\nguidance.\n\nConditions noted in FY 2005 regarding application system development and change control at DHS\nand its components were:\n\n\xe2\x80\xa2 ASDCC-05-1: Instances where policies and procedures regarding configuration management\n controls were not in place to prevent users from having concurrent access to the development, test,\n and production environments of the system.\n\xe2\x80\xa2 ASDCC-05-2: Changes made to the configuration of the system were not always documented\n through System Change Requests (SCRs), test plans, test results, or software modifications.\n Additionally, documented approval did not exist, or was not always retained, for emergency\n enhancements, \xe2\x80\x9cbug\xe2\x80\x9d fixes, and data fixes, and in some cases, audit logs for tracking changes to the\n data or systems were not activated.\n\nRecommendations:\n\nWe recommend that the DHS Office of Chief Information Officer in coordination with the OCFO:\n\na) Develop and implement policies and procedures regarding configuration management controls, and\n ensure that users do not have concurrent access to development, test, and production environments;\n and\nb) Ensure adherence to policies that require changes to the configuration of the system are approved and\n documented, and audit logs are activated and reviewed on a periodic basis.\n\nSystem Software\n\nWe noted weaknesses in programs designed to operate and control the processing activities of\ncomputer equipment. Weaknesses in this control area, closely linked to entity-wide security and\naccess controls, increase the likelihood that unauthorized individuals using system software could\ncircumvent security controls to read, modify, or delete critical or sensitive information and programs.\nAuthorized users of the system could gain unauthorized privileges to conduct unauthorized actions;\nand/or systems software could be used to circumvent edits and other controls built into application\nprograms.\n\nConditions noted regarding system software at DHS were:\n\n\xe2\x80\xa2 SS-05-1: Instances where policies and procedures for restricting and monitoring access to operating\n system software were not implemented or were inadequate. In some cases, the ability to monitor\n security logs did not exist.\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 4\n\x0c Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\xe2\x80\xa2 SS-05-2: Changes to sensitive operating system settings and other sensitive utility software and\n hardware were not always documented.\n\nRecommendation:\n\nWe recommend that the DHS Office of Chief Information Officer, in coordination with the OCFO,\nmonitor the use, and changes related to operating systems, and other sensitive utility software and\nhardware.\n\nSegregation of Duties\n\nDuring FY 2005, we continued to note instances where an individual controlled more than one critical\nfunction within a process, increasing the risk that erroneous or fraudulent transactions could be\nprocessed, improper program changes could be implemented, and computer resources could be\ndamaged or destroyed, without detection. Additionally, we noted a lack of segregation of duties\nbetween major operating and programming activities, including duties performed by users,\napplication programmers, and data center staff.\n\nConditions noted regarding segregation of duties at DHS were:\n\n\xe2\x80\xa2 SD-05-1: Instances where individuals were able to perform incompatible functions, such as the\n changing, testing, and implementing of software, without sufficient compensating controls in place.\n\xe2\x80\xa2 SD-05-2: Instances where key security positions were not defined or assigned, and descriptions of\n positions were not documented or updated.\n\nRecommendations:\n\nWe recommend that the DHS Office of Chief Information Officer in coordination with the OCFO:\na) Document user responsibilities so that incompatible duties are consistently separated. If this is not\n feasible given the smaller size of certain functions, then sufficient compensating controls, such as\n periodic peer reviews, should be implemented; and\nb) Assign personnel to key security positions, and ensure that position descriptions are kept current.\n\nService Continuity\n\nDuring FY 2005 we noted that DHS took some corrective actions to address IT control issues related\nto developing contingency plans and the back-up and protection of critical system data. Despite these\nimprovements, weaknesses related to business continuity plans continue to exist. These issues are\nimportant because losing the capability to process, retrieve, and protect information maintained\nelectronically can significantly affect an agency\xe2\x80\x99s ability to accomplish its mission.\n\nConditions noted regarding service continuity at DHS were:\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 5\n\x0c Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\xe2\x80\xa2 SC-05-1: Five DHS components had incomplete or outdated business continuity plans and systems\n with incomplete or outdated disaster recovery plans. Some plans did not contain current system\n information, emergency processing priorities, procedures for backup and storage, or other critical\n information.\n\xe2\x80\xa2 SC-05-2: Five DHS component\xe2\x80\x99s service continuity plans were not consistently and/or adequately\n tested, and individuals did not receive training on how to respond to emergency situations.\n\nRecommendations:\n\nWe recommend that the DHS Office of Chief Information Officer in coordination with the OCFO:\n\na) Develop and implement complete and current business continuity and system disaster recovery plans,\n and\nb) Perform component-specific and DHS-wide testing of key service continuity capabilities, and assess\n the need to provide appropriate and timely emergency training.\n\nApplication Controls\n\nDuring FY2005, we noted several instances of weak access and segregation of duty controls associated\nwith key DHS financial applications, such as a DHS component\xe2\x80\x99s core financial application, as well as\nprocurement and payable applications. These weaknesses include weak or expired user passwords, user\naccounts that were not kept current, and certain users with access privileges to certain key processes of an\napplication. Many of these weaknesses were identified during our general control testing of access\ncontrols and segregation of duties; however, since these same issues also impact controls over specific\nkey financial applications, they are reported here as well.\n\nConditions noted regarding application controls at DHS and its components were:\n\n\xe2\x80\xa2 APC-05-1: Instances of missing and weak user passwords on key application servers and\n databases.\n\xe2\x80\xa2 APC-05-2: User account lists were not periodically reviewed for appropriateness, and inappropriate\n authorizations and excessive access privileges for group user accounts were allowed.\n\xe2\x80\xa2 APC-05-3: Instances where individuals were able to perform incompatible functions, such as the\n changing, testing, and implementing of software, without sufficient compensating controls in place.\n\nRecommendations:\n\nWe recommend that the DHS Office of Chief Information Officer in coordination with the OCFO:\n\na) Ensure that password controls meet DHS password requirements on all key financial systems;\nb) Implement an account management certification process within all the components, to ensure the\n periodic review of user accounts for appropriate access; and\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 6\n\x0c Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n c) Document the user responsibilities so that incompatible duties are consistently separated. If this is\n not feasible given the smaller size of certain functions, then sufficient compensating controls, such as\n periodic peer reviews, should be implemented.\n\n\nMANAGEMENT COMMENTS AND OIG EVALUATION\n\nWe obtained written comments on a draft of this report from the DHS CIO. Generally, the DHS CIO\nagreed with all of the report\xe2\x80\x99s findings and recommendations. However as noted in the summary section\nof the status spreadsheet, components did not concur with ten (10) of the NFRs and the DHS CIO is\ncurrently working to fully document all \xe2\x80\x9cnon-concurs.\xe2\x80\x9d We have incorporated the comments where\nappropriate and included a copy of the comments at Appendix D.\n\n\n\nOIG Response\n\nWe accept the DHS CIO\xe2\x80\x99s response to the recommendations in this report and are encouraged that the\nDHS CIO will work with each DHS component to ensure that a Plan of Action and Milestones (POA&M)\nis developed for each of the 88 NFRs. We are also encouraged by the DHS CIO\xe2\x80\x99s commitment to take\ncorrective actions on these IT NFRs during the FY 2006 DHS Financial Statement Audit. However, the\nDHS CIO\xe2\x80\x99s response did not provide details on any planned corrective actions for each of the\nrecommendations outlined in this report. KPMG will follow up on the corrective actions for these\nrecommendations during the FY 2006 Financial Statement Audit.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 7\n\x0c Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\n Appendix A\n\nDescription of Key Financial Systems and IT Infrastructure within\n the Scope of the FY 2005 DHS Financial Statement Audit\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 8\n\x0c Appendix A\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\nBelow is a description of significant DHS financial management systems and supporting IT\ninfrastructure included in the scope of the financial statement audit for the twelve months ended\nSeptember 30, 2005.\n\nUnited States Citizen and Immigration Services (USCIS)\n\nLocations of Audit: USCIS Headquarters in Washington, D.C., as well as offices in Texas, Vermont\nand Nebraska.\n\nKey Systems Subject to Audit:\n\n\xe2\x80\xa2 Federal Financial Management System (FFMS) \xe2\x80\x93 The Immigration and Customs Enforcement\n (ICE) component owns and operates FFMS. ICE performs the financial reporting function for\n USCIS, using FFMS per the shared services agreement with USCIS. FFMS is a commercial off-\n the-shelf financial reporting system that was fully implemented in FY 2003. FFMS is the official\n system of record and is built in Oracle 8i Relational Database Management System. It includes\n the core system used by accountants, FFMS Desktop, which is used by average users, and a\n National Finance Center payroll interface. FFMS supports all USCIS core financial processing.\n FFMS uses a Standard General Ledger (SGL) for the accounting of agency financial transactions.\n\n\xe2\x80\xa2 Claims 3 Local Area Network (LAN) \xe2\x80\x93 Claims 3 LAN provides USCIS with a decentralized LAN\n based system that supports the requirements of the Direct Mail Phase I and II, Immigration Act of\n 1990 (IMMACT 90) and USCIS Forms Improvement projects. The Claims 3 LAN is located at\n each of the service centers (Nebraska, California, Texas, Vermont, and the National Benefits\n Center). The main purpose of Claims 3 is to enter and track immigration applications.\n\n\xe2\x80\xa2 Claims 4 - The purpose of Claims 4 is to track and manage naturalization applications. Claims 4\n resides on multiple platforms, including a Siemens E70 located in Dallas, Texas. Claims 4 data is\n centrally stored within one Oracle Database. Software is developed and maintained in the Oracle\n relational database (RDBMS) and Microsoft Visual Basic environments.\n\nImmigration and Customs Enforcement (ICE)\n\nLocations of Audit: ICE Headquarters in Washington, D.C., as well as offices in Texas, Vermont and\nNebraska.\n\nKey System Subject to Audit:\n\n\xe2\x80\xa2 Federal Financial Management System (FFMS) \xe2\x80\x93 ICE owns and operates FFMS. ICE performs\n the financial reporting function for CIS, MGT, IAIP, and S&T using FFMS per the shared\n services agreement these agencies have with ICE. FFMS is a commercial off-the-shelf financial\n reporting system that was fully implemented in FY 2003. FFMS is the official system of record\n and is built in Oracle 8i Relational Database Management System. It includes the core system\n used by accountants, FFMS Desktop that is used by average users, and a National Finance Center\n payroll interface. FFMS supports all USCIS/ICE core financial processing and uses a Standard\n General Ledger (SGL) for the accounting of agency financial transactions.\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 9\n\x0c Appendix A\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\nUnited States Coast Guard\n\nLocations of Audit: Coast Guard Headquarters in Washington, DC; the Aviation Repair and Supply\nCenter (ARSC) in Elizabeth City, North Carolina; ---------------------------------------------------- ---\n--------------- ------------------------------------ -------------------------------------------- ----------------------\n-------------------------------- ---------------- --------------\n\nKey Systems Subject to Audit:\n\n\xe2\x80\xa2 Core Accounting System (CAS) \xe2\x80\x93 CAS is the core accounting system that records financial\n transactions and generates financial statements for the Coast Guard. CAS is hosted at ---------- ,\n the Coast Guard\xe2\x80\x99s primary data center.\n\n\xe2\x80\xa2 Financial Procurement Desktop (FPD) \xe2\x80\x93 The FPD application used to create and post obligations\n to the core accounting system. It allows users to enter funding, create PR\xe2\x80\x99s, issue procurement\n documents, perform system administration responsibilities, and reconcile weekly Program\n Element Status (PES) reports.\n\n\xe2\x80\xa2 Workflow Imaging Network System (WINS) - WINS is the document image processing system,\n which is integrated with an Oracle Developer/2000 relational database. WINS allows electronic\n data and scanned paper documents to be imaged and processed for data verification,\n reconciliation and payment. WINS utilizes MarkView software to scan documents and to view\n the images of scanned documents and to render images of electronic data received.\n\n\xe2\x80\xa2 Naval Electronics Supply Support System (NESSS) \xe2\x80\x93 Formerly named the Supply Center\n Computer Replacement System (SCCR), NESSS is hosted at------- NESSS is the primary\n financial application for the Engineering Logistics Command (ELC), the Supply Fund, and the\n Yard fund. Also housed at ----- is the Fleet Logistics System (FLS), a web-based application\n designed to automate the management of Coast Guard vessel logistics by supporting the following\n functions: configuration, maintenance, supply and finance. In addition, ----- is responsible for\n CMPlus, the central repository for activities associated with maintaining Coast Guard assets at the\n unit level.\n\nSeveral other key Coast Guard financial applications support military personnel and payroll, retired\npay, and travel claims. These applications are hosted at the PSC, which was formerly known as the\nHuman Resources Services and Information Center. These applications include the Personnel\nManagement Information System (PMIS) and the Joint Uniform Military Pay System (JUMPS). Also\nhoused at PSC is the PeopleSoft 8.3 Direct Access application, which is used by members for self-\nservice functions, including updating and viewing personal information.\n\nIn addition, the Coast Guard maintains hosts on the Internet in thirteen Internet Protocol (IP) address\nranges. Hosts within these ranges support various Web based applications, e-mail servers, and File\nTransfer Protocol (FTP) servers.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 10\n\x0c Appendix A\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\nUnited States Customs and Border Protection (CBP)\n\nLocations of Audit: ------- --------------------------------------------------------------- ---------------- -\n----------------------------------------------------------------\n\nKey Systems Subject to Audit:\nBelow is a description of significant CBP financial management systems and supporting IT\ninfrastructure included in the scope of the September 30, 2005 CBP consolidated balance sheet audit.\n\n\xe2\x80\xa2 --------------- ---------------- ---------------- ---------- -------- was decommissioned in FY 2005 and\n replaced by SAP. It was CBP\'s IBM --- ----- -- - -based financial management system that\n supported primary financial accounting and reporting processes, and a number of additional\n subsystems for specific operational and administrative management functions. The core system\n consisted of general ledger, accounts receivable, disbursements/payables, purchasing, and budget\n execution modules. ---------was hosted on a customized version of ---- --------------------- ---\n --- ----- - ----- --------------------------------- ----- --------\n\n\xe2\x80\xa2 ---------- ------- is a client/server-based financial management system that was implemented\n beginning in FY 2004 to ultimately replace the ------- ---------------- ---------------- --- ----- ------ -\n using a phased approach. The ---------------------- ---- - -- - --- -- ------ was implemented and utilized\n in FY 2004. In FY 2005, the Funds Management, Budget Control System, General Ledger,\n Internal Orders, Sales and Distribution, Special Purpose Ledger, and Accounts Payable modules\n were implemented.\n\n\xe2\x80\xa2 --------------- - ---------------------------- -------- is a collection of mainframe-based applications\n used to track, control, and process all commercial goods, conveyances and private aircraft\n entering the United States territory, for the purpose of collecting import duties, fees, and taxes\n owed the Federal government.\n\n\xe2\x80\xa2 ---------------- ------------------------------------------------ \xe2\x80\x93 Used for tracking seized assets, Customs\n Forfeiture Fund, and fines & penalties.\n\nDHS Consolidated\n\nLocation of Audit: DHS Headquarters in Washington, D.C.\n\nKey Systems Subject to Audit:\n\n\xe2\x80\xa2 Treasury Information Executive Repository (TIER) \xe2\x80\x93 The system of record for the DHS\n consolidated financial statements is TIER. The DHS components update TIER on a monthly\n basis with data extracted from their core financial management systems. TIER subjects\n component financial data to a series of validation and edit checks before it becomes part of the\n system of record. Data cannot be modified directly in TIER, but must be resubmitted as an input\n file.\n\n\xe2\x80\xa2 CFO Vision \xe2\x80\x93 CFO Vision interfaces with TIER, and is used for the consolidation of the financial\n data and the preparation of the DHS financial statements.\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 11\n\x0c Appendix A\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\nThe TIER and CFO Vision applications reside on the Department of Treasury\xe2\x80\x99s (Treasury) network\nand are administered by Treasury. Treasury is responsible for the administration of the TIER\nWindows NT server, Oracle 8i database, and the TIER and CFO Visions applications. The DHS\nOffice of Financial Management (OFM) is responsible for the administration of DHS user accounts\nwithin the TIER and CFO Vision applications.\n\nLimited Scope\n\nLocation of Audit: We performed follow-up on a FY 2003 finding at the ---- - --------------------- ----\n---------------- ------------------------------- ------- - ------ - ------\n\nSystem Subject to Audit:\nThe Momentum Financial System is FLETC\xe2\x80\x99s core computerized system that processes financial\ndocuments generated by various FLETC divisions in support of procurement, payroll, budget and\naccounting activities.\n\nFederal Emergency Management Agency (FEMA)\n\nLocations of Audit: FEMA Headquarters in Washington, D.C., and the------ - - ------------------------\n------- -------- - ------------------------------ ----------------\n\nKey Systems Subject to Audit:\n\n\xe2\x80\xa2 Integrated Financial Management Information System (IFMIS) \xe2\x80\x93 IFMIS is the key financial\n reporting system, and has several feeder subsystems (budget, procurement, accounting, and other\n administrative processes and reporting).\n\n\xe2\x80\xa2 National Emergency Management Information System (NEMIS) \xe2\x80\x93 NEMIS is an integrated system\n to provide FEMA, the states, and certain other federal agencies with automation to perform\n disaster related operations. NEMIS supports all phases of emergency management, and provides\n financial related data to IFMIS via an automated interface.\n\n\xe2\x80\xa2 Logistical Information Management System (LIMS III) \xe2\x80\x93 LIMS III provides for material\n management, maintenance, and logistics reporting.\n\n\xe2\x80\xa2 National Flood Insurance Program System \xe2\x80\x93 The system provides loss projections, recovery\n rates, and, maintains customer records for the flood insurance program.\n\n\xe2\x80\xa2 Quicktime - Time and Attendance Collection System \xe2\x80\x93 A web-based system used to collect hours\n worked and leave used by all employees in FEMA. The data collected is transmitted to the\n National Finance Center for paycheck preparation.\n\nOffice of State and Local Government Coordination and Preparedness (SLGCP)\n\nLocation of Audit: SLGCP Headquarters in Washington, D.C.\n\nKey Systems Subject to Audit:\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 12\n\x0c Appendix A\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\nSLGCP\xe2\x80\x99s IT platforms are hosted and supported by the Department of Justice\xe2\x80\x99s Office of Justice\nPrograms (OJP). The following is a list of key financial related applications supporting SLGCP.\n\n\xe2\x80\xa2 IFMIS (same application as FEMA\xe2\x80\x99s, but hosted at OJP) \xe2\x80\x93 IFMIS consists of five modules that\n include: budget, cost posting, disbursement, general ledger, and accounts receivable. Users\n access the system through individual workstations that are installed throughout SLGCP and OJP.\n The current IFMIS version does not have the ability to produce external federal financial reports\n (i.e., SF132 and SF133) and financial statements. IFMIS was updated in February 2002 with the\n version certified by the Joint Financial Management Improvement Program (JFMIP).\n\n\xe2\x80\xa2 Grants Management System (GMS) \xe2\x80\x93 GMS supports the SLGCP grant management process\n involving the receipt of grant applications and grant processing activities. GMS is divided into\n two logical elements. There is a grantee and an administration element within the system. The\n grantee component provides the Internet interface and functionality required for all of the\n grantees to submit grant applications on-line. The second component, the administration\n component, provides SLGCP/OJP personnel the tools required to store, process, track and\n ultimately make decisions about the applications submitted by the grantee. This system does not\n interface directly with IFMIS.\n\n\xe2\x80\xa2 Line of Credit Electronic System (LOCES) \xe2\x80\x93 The LOCES allows recipients of SLGCP funds to\n electronically request payment from OJP on one day and receive a direct deposit to their bank for\n the requested funds usually on the following day. Batch information containing draw down\n transaction information from LOCES is transferred to IFMIS. The IFMIS system then interfaces\n with Treasury to transfer payment information to Treasury, resulting in a disbursement of funds\n to the grantee.\n\n\xe2\x80\xa2 Paperless Request System (PAPRS) \xe2\x80\x93 This system allows grantees to access their grant funds.\n The system includes a front and back end application. The front-end application provides the\n interface where grantees make their grant requests. The back end application is primarily used by\n accountants and certifying officials. The back end application also interfaces with the IFMIS\n application. Batch information containing draw down transaction information from PAPRS is\n interfaced with IFMIS. The IFMIS system then interfaces with Treasury to transfer payment\n information to Treasury, resulting in a disbursement of funds to the grantee.\n\nTransportation Security Administration (TSA)\n\nLocations of Audit: TSA Headquarters in Washington, D.C. ----- - ----------------------------------------\n--------------- ---------- TSA\xe2\x80\x99s financial applications are hosted on the Coast Guard\xe2\x80\x99s IT platforms.\n\nKey Systems Subject to Audit:\nThe Coast Guard is a service provider for Transportation Security Administration (TSA) by\nmaintaining the Core Accounting System. This application is housed at the ---------------- -------- -\n----------------------------------------\n\n\xe2\x80\xa2 Core Accounting System (CAS) \xe2\x80\x93 CAS is the core accounting system that records financial\n transactions and generates financial statements for TSA. CAS is hosted at ----------- the Coast\n Guard\xe2\x80\x99s primary data center.\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 13\n\x0c Appendix A\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\xe2\x80\xa2 Financial Procurement Desktop (FPD) \xe2\x80\x93 The FPD application used to create and post obligations\n to the core accounting system. It allows users to enter funding, create PR\xe2\x80\x99s, issue procurement\n documents, perform system administration responsibilities, and reconcile weekly PES Reports.\n\n\xe2\x80\xa2 Workflow Imaging Network System (WINS) - WINS is the document image processing system,\n which is integrated with an Oracle Developer/2000 relational database. WINS allows electronic\n data and scanned paper documents to be imaged and processed for data verification,\n reconciliation and payment. WINS utilizes MarkView software to scan documents and to view\n the images of scanned documents and to render images of electronic data received.\n\n\xe2\x80\xa2 Consolidated Uniform Payroll System (CUPS) \xe2\x80\x93 CUPS maintains TSA payroll data, calculates\n pay, wages, tax information and maintains service history and separation records. CUPS\n interfaces with the Integrated Personnel and Payroll System (IPPS), Little IPPS, CUPS National,\n CPMIS, DELPHI, and also receives other data inputs. CUPS is a mainframe application.\n\n\xe2\x80\xa2 Consolidated Personnel Management Information System (CPMIS) \xe2\x80\x93 CPMIS is the DOT\n personnel management system. The system processes and tracks personnel actions and employee\n related data for TSA, including employee elections for the Thrift Savings Plan (TSP), life\n insurance, and health insurance as well as training data and general employee information (i.e.\n name, address, etc.). CPMIS is also used to maintain information related to budget, training, civil\n rights, labor relations and security. CPMIS is a mainframe application. CPMIS interfaces with\n CUPS to allow CUPS to perform the calculation of pay, time and attendance reporting, leave\n accounting, and wage and tax reporting. CUPS also uses the information received from CPMIS to\n initiate payroll deductions for TSP, insurances, Combined Federal Campaign contributions, and\n savings bonds.\n\n\xe2\x80\xa2 Integrated Personnel And Payroll System (IPPS) \xe2\x80\x93 IPPS processes requests for personnel action,\n training enrollments, and time and attendance information. IPPS interfaces with CPMIS and\n CUPS to receive time and attendance and payroll information. IPPS also interfaces with the IPPS\n Management and Reporting (MIR) system. MIR is a client/server system that provides reporting\n capability through an Oracle database.\n\nTSA payroll, time and attendance, and HR moved to the ----------------------------------------- -----\n-- -- ----------- ---------------------------------------- on August 22, 2005. For payroll, TSA will be using a\nKronos system called WebTA, a web-based system, which will interface with the------- system. The\nHRMaxEmpower system will be TSA\xe2\x80\x99s new HR system. The HRMaxEmpower system will also\ninterface with the ------ system.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 14\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\n Appendix B\n\nFY2005 Notice of IT Findings and Recommendations - Detail by\n DHS Organizational Element\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 15\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\n Department of Homeland Security\n FY2005 Information Technology\nNotification of Findings and Recommendations \xe2\x80\x93 Detail\n\n\n United States Citizenship and Immigration Services\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 16\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Department of Homeland Security\n FY2005 Information Technology\n Notification of Findings and Recommendations \xe2\x80\x93 Detail\n\n Citizenship and Immigration Services\n\n IT NFRs Which Contributed to the Overall DHS Material Weakness for Financial System\n Security\n\n Significant Findings\n Contributing to the\n Overall DHS\nNFR # Condition Recommendation New Repeat\n Material Weakness\n Issue Issue\n for Financial\n System Security\n Allocate sufficient resources to\n ensure that the proper\n implementation policy\n The site Certification and\n requirements for all systems\n Accreditation (C&A)\n used to process, store, or\n package for the California\nUSCIS transmit classified or sensitive\n Service Center, General X X\n05-02 information to be accredited\n Support System (GSS) -\n every three years. Also,\n Local Area Network (LAN)\n consider issuing interim\n is outdated and has expired.\n accreditations that represent the\n managers\xe2\x80\x99 explicit acceptance\n of risks.\n Allocate sufficient resources to\n ensure that the proper\n implementation policy\n requirements for all systems\n The C&A package for the used to process, store, or\nUSCIS Texas Service Center transmit classified or sensitive\n X X\n05-03 (TSC) GSS-LAN is information to be accredited\n outdated and has expired. every three years. Also,\n consider issuing interim\n accreditations that represent the\n managers\xe2\x80\x99 explicit acceptance\n of risks.\n Access control weaknesses Ensure that---- ------- -- system\n such as account passwords are established and\n management, password maintained in accordance with\nUSCIS\n length, and a lack of review DHS and Federal guidance and X X\n05-04\n over audit records were that warning banners are in\n identified for the ------- - -- place when users logon to the\n system. system.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 17\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Significant Findings\n Contributing to the\n Overall DHS\nNFR # Condition Recommendation New Repeat\n Material Weakness\n Issue Issue\n for Financial\n System Security\n A Novell NetWare server at Test and install vendor supplied\n USCIS\xe2\x80\x99 Texas Service patches in a timely manner and\nUSCIS Center (TSC) was undertake frequent vulnerability\n X X\n05-05 identified as not having the scanning of all systems at TSC\n correct vendor supplied to verify that required patches\n patches installed. have been installed.\n A vulnerability assessment Ensure that the documented\n over -- -- -- - ---at USCIS password policy is enforced on\n TSC noted that multiple all systems and undertake\nUSCIS local administrator frequent vulnerability scanning\n X X\n05-06 accounts had blank on all systems at the TSC to\n passwords including verify that passwords have been\n several accounts with assigned and implemented\n supervisor level access. correctly.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 18\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\n Department of Homeland Security\n FY2005 Information Technology\nNotification of Findings and Recommendations \xe2\x80\x93 Detail\n\n\n Immigration and Customs Enforcement\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 19\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Department of Homeland Security\n FY2005 Information Technology\n Notification of Findings and Recommendations \xe2\x80\x93 Detail\n\n Immigration and Customs Enforcement\n\n Management Comment: IT Notice of Findings and Recommendations\n\n Management\nNFR # Condition Recommendation New Repeat Comment to DHS-\n Issue Issue CIO and CFO\n ICE does not have\n Document and implement\n procedures in place to\n policies and procedures for the\n periodically review --- -----\n periodic review of --- ---- user\nICE 05- ------ ----- --- - ---- ----\n accounts, and ensure X X\n 07 ----------------- - user access\n administrative personnel\n lists and could not provide\n periodically perform reviews of\n a list of all authorized\n ------- user accounts.\n ------- users upon request.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 20\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n Department of Homeland Security\n FY2005 Information Technology\nNotification of Findings and Recommendations \xe2\x80\x93 Detail\n\n\n Customs and Border Protection\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 21\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Department of Homeland Security\n FY2005 Information Technology\n Notification of Findings and Recommendations \xe2\x80\x93 Detail\n\n Customs and Border Protection\n\n Significant IT NFRs Which Contributed to the Overall DHS Material Weakness for\n Financial System Security\n\n Significant Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n Remove unnecessary\n The Top Secret mainframe\n central security\n account administration on\n administrator- ------\n the---------------------- ------\n privileges and accounts or\n ------ -- --------- had several\nCBP-IT- alternatively continue\n weaknesses over X X\n 05-02 implementation of a --- ---\n unauthorized access to\n ------ ----------- -- for use by\n accounts -------------- - --\n authorized individuals\n -- --- ---- and inactive\n during pre-determined\n accounts.\n circumstances.\n Develop enterprise-wide\n solutions for improving\n network and host-based\n system configuration\n design(s), consider the use\n of security management\n monitoring tools to prevent\n possible intrusions, proceed\n Improvements are needed with the implementation of\n in system logical access -- ------ ---- - - - - -- - --------\nCBP-IT-\n controls over network provide more robust system X X\n 05-09\n assets affecting management security\n - ------- -- ------- ------ --- controls standards for\n Windows-based production\n servers, and consider the\n development of a\n compliance level policy for\n adherence to CBP\n password management\n policies at the - - -- ---\n -- - -- -------- --\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 22\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Significant Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n Perform a formal review of\n all personnel that have\n CBP management did not\n access to the --------- -----\n adequately implement\n ---- --- to determine those\n procedures for restricting\n that do not have a formal\n access to the data center\nCBP-IT- user access form in place,\n located in---------- and\n05-14 establish a formal user X X\n several terminated\n access form, and promptly\n employees did not have\n remove physical access\n their badges deactivated in\n rights to the -------- facility\n a timely manner.\n when an employee is\n terminated.\n Develop a formally\n Eighteen (18) ----- documented process for\nCBP-IT- ------ ---- -- were found with granting normal and\n X X\n 05-15 access to the production emergency access for\n environment. ------ ---- -- to the - -- -\n production environment.\n Perform a formal analysis\n CBP has not configured\n of the company code\nCBP-IT- their version of---- -- to\n setting to determine if it\n05-17 include a company code X X\n should be set to\n setting of "productive."\n \xe2\x80\x9cproductive\xe2\x80\x9d.\n Ensure that the assignment\n of sensitive functions and\n high-risk combinations of\n functions to non-\n supervisory users is based\n Excessive sensitive\n on a documented business\nCBP-IT- functions and high-risk\n need and approved by a X X\n 05-18 combinations have been\n supervisory official.\n assigned to ---- -- users.\n Exceptions from guidance\n provided by the\n memorandum should be\n formally approved and\n documented\n Delete the accounts of any\n confirmed terminated\n employees, and disable\nCBP-IT- Separated employees with\n user accounts of separated X X\n 05-19 active ------ accounts.\n employees and contractors\n as stated in CBP and\n Federal guidance.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 23\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Significant Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n Access to the --------- ---\n Recertify users with access\n -- -- --- -- ------ ---- --- --\nCBP-IT- -- ------- - - --- -----------and\n --- ----- --------- -related X X\n 05-28 document the evidence of\n dataset and-- - -- ---- -- ---\n the recertification.\n ---- is excessive.\n Recertify users with access\n The number of users with to Top Secret Audit,\nCBP-IT- access to Top Secret Audit, Recovery, and Backup\n X X\n 05-30 Recovery, and Backup datasets and document\n datasets is excessive. evidence of the\n recertification.\n\n\n Remaining IT NFRs Which Contributed to the Overall DHS Material Weakness for\n Financial System Security\n\n\n Remaining Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n Coordinate with each\n affected field office to\n either remove conflicting\n roles or sign a waiver to\n Numerous-- -- -- user IDs\nCBP-IT- accept responsibility for\n were identified as having X X\n 05-01 associated risks and\n segregation of duties issues.\n continue to prevent new\n IDs with segregation of\n duties conflict from being\n created.\n After the re-organization of\n the Office of Information\n Ensure that security\n Technology (OIT), security\nCBP-IT- administration functions\n administration functions at\n05-03 remain independent of X X\n the------- are not\n operations functions.\n independent of the\n operations function.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 24\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Remaining Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n Develop a process to\n ensure supervisory review\n of ---- - overrides and\n ensure that the new\n Certain controls can be --- - -- - --- ---- ------------\nCBP-IT-\n overridden in ---- -- without --- -- -- --- --- - ---- - - X X\n 05-04\n supervisory approval. system has the appropriate\n requirements for these\n controls and that the\n controls are applied prior to\n implementation.\n Formally establish a\n process for granting --- --\n CBP management has not access to sensitive\n developed formal technical team roles that\nCBP-IT- procedures for granting include procedures for\n05-05 access to sensitive------ documenting authorization X X\n Technical Team member requests, identifying roles\n roles. to be granted, and\n recertification of user roles\n within ----- .\n The -------- --------- ---- --\n Update--- --------- - COOP\n ----------- continuity of\n with the most recent FY\n operations plan (COOP) is\n 2004 test results and re-\n not updated to reflect the\n evaluate the COOP for\nCBP-IT- results of FY 2004 testing,\n overall contingency\n05-06 and the upgrade of their X X\n planning procedures on an\n financial system from--------\n annual basis and in the\n -- -- --- -- ------ - --------- --\n event of a major system\n --- ----- ------- - - mainframe\n change or upgrade.\n to ------\n CBP management has not\n consistently applied the Consistently apply the\nCBP-IT- requirement for initial requirements for initial and\n05-08 security awareness training refresher security X X\n for CBP employees and awareness training,\n contractors.\n Continue to review the\n ------ security audit log\nCBP-IT- audit logs daily, maintain\n reviews not evidenced for\n05-10 documented evidence, and X X\n the majority of FY 2005.\n train backup personnel.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 25\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Remaining Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n Complete efforts to identify\n CBP ----- Administrator - ------ - - --- -- -- -- --\n staff have not documented connections that are\nCBP-IT- Interconnection Security considered \xe2\x80\x9clegacy\xe2\x80\x9d\n05-11 Agreements (ISA) for all connections as well as X X\n entities that connect with connections with ----- and\n ------ formally establish ISAs\n with these entities.\n Formally update the\n alternate processing site\n CBP alternate processing\n agreement to accurately\n site agreement not\nCBP-IT- reflect the current hardware\n finalized. Priority of\n05-12 and support that will be X X\n service provision not in\n required of the alternate\n place.\n processing site vendor in\n the event of an emergency.\n Formalize the process to\n No formal process to confirm or enforce\n confirm or enforce compliance with the ---- --\nCBP-IT-\n compliance with the ---- -- recertification process at\n05-13 X X\n ----------------- ---------------- the field sites and\n ----- ------- document all\n recertifications.\n Develop a process to\n identify the workstations\n that have yet to install the\n The incident handling and ---- - ----- -- , continue to\n response capability needs test and implement a\nCBP-IT- improvement regarding standard real-time\n05-16 incident detection and automated reporting X X\n initiation, response, process, and develop a\n recovery, and reporting. consistent process to\n respond to system flaw\n notifications and track\n reported security incidents.\n Formally document test\n CBP does not document\n plans, test cases, and test\n changes to the ----- system\nCBP-IT- results for all - -- -- changes,\n including test plans, test\n05-20 and business and customer X X\n cases, impact analysis, and\n impact analysis for ------\n test results.\n changes requests.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 26\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Remaining Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n Perform a formally\n documented assessment of\n CBP management has not the tables that should be\nCBP-IT-\n activated logging for logged by ------ and\n05-21 X X\n critical tables within ----- . complete the\n implementation of table\n logging within ------\n CBP management has not\n completed a Certification\n Complete a security control\n and Accreditation package\n assessment for all -------\nCBP-IT- for all components of the\n LAN components and a\n05-22 ------ LAN, including no X X\n risk assessment for all\n security control assessment\n ------ LAN components.\n and no formal risk\n assessment conducted.\n Consider reviewing the\n sensitivity of applications\n and based upon results,\n perform separate C&As\n where appropriate.\n Lack of evaluation of the Consider establishing a\n need for a separate C&As relationship of identified\n for applications included in risks to defined security\nCBP-IT-\n the Administrative requirements in ------\n05-23 X X\n Applications C&A, and the incorporate a risk-based\n improvements needed in approach for any re-\n risk assessment guidance. certification efforts\n performed, and consider\n development of definitive\n guidance for risk\n assessment and security\n plan criteria\n Develop a formal\n centralized process for\n tracking the termination of\n CBP does not maintain a contract personnel,\nCBP-IT- centralized listing of immediately deactivating\n05-24 separated contract systems access of X X\n personnel. terminated contractors, and\n periodically assessment of\n contractor access to CBP\n systems.\n Change the setting ------- --\n ----- idle session lock ----------- - ------ to\nCBP-IT-\n inconsistent with CBP disconnect idle sessions\n05-25 X X\n policy. after 20 minutes of\n inactivity.\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 27\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Remaining Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n Continue to review and\n deactivate inactive\n No procedures to detect and accounts on a monthly\nCBP-IT-\n deactivate inactive ----- basis and implement an\n05-26 X X\n users. automated mechanism to\n detect and deactivate\n inactive accounts\n Virtual Private Network Continue to use the official\n (VPN) access authorization form for new\nCBP-IT- authorizations not VPN users and formally\n05-27 documented and VPN recertify all VPN employee X X\n accounts are not accounts on a periodic\n periodically recertified. basis and document results.\n Document that access to\n CBP management did not the --- -- - - - ------- --- - ---\n provide information as to - -- -- (or equivalent) are\nCBP-IT-\n whether --- -- ---- ------- -- properly segregated and\n05-29 X X\n ---- - - - -- -- are perform a review of current\n appropriately segregated. granted accesses for\n appropriateness.\n Develop a formal process\n Weaknesses in the C&A to ensure that all non-\nCBP-IT- process at field sites recommend field sites\n05-31 including several missing submit a NIST 800-26 X X\n site assessments. LAN self-assessment in a\n timely manner.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 28\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\n Department of Homeland Security\n FY2005 Information Technology\nNotification of Findings and Recommendations \xe2\x80\x93 Detail\n\n\n United States Coast Guard\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 29\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Department of Homeland Security\n FY2005 Information Technology\n Notification of Findings and Recommendations - Detail\n United States Coast Guard\n\n Significant IT NFRs Which Contributed to the Overall DHS Material Weakness for\n Financial System Security\n\n Significant Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n Complete the BRP as\n planned, store a finalized\n The ----- ----------------\n copy off-site, train\nCG-IT- ---- -- - ----- - has not\n personnel in their assigned X X\n05-001 completed a Business\n roles and responsibilities,\n Recovery Plan (BRP).\n test the BRP and document\n lessons learned.\n Establish a testing detail\n baseline that defines the\n standard components that a\n ----- has not completed a developer should document\n testing baseline and users in Profession Version\nCG-IT-\n were able to change their Control Software (PVCS) X X\n05-002\n privileges to gain access to Tracker, and enforce the\n production. procedure to implement\n testing as a component of\n change implementation.\n\n Access control weaknesses\n exist in the------ Document and implement\n ------ ----- ----- - - - ---- RACF account\n ----------- - - -- ---------- management policies and\nCG-IT- ------- - - including user procedures, perform\n X X\n05-003 account creation and periodic reviews of ---- ---\n termination procedures are accounts, and routinely\n not documented, and a monitor audit logs for\n recertification of accounts unusual activity.\n does not take place.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 30\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Significant Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n Coast Guard has not Complete the restoration of\n completed the process of background investigation\n filing the personal records records not included during\n that were recovered and the migration of records\n recreating the records that from the Department of\n were not found during the Transportation to DHS.\nCG-IT- migration of records from Work with DHS to finalize\n X X\n05-006 the Department of policy for conducting\n Transportation to DHS. contractor background\n Comprehensive policies investigations and\n for conducting background document Coast Guard-\n investigations for specific procedures\n contractors have not been compliant with new DHS\n finalized. requirements.\n The --------------- system Replace ----------with the\n does not require strong Coast Guard Direct Access\nCG-IT-\n passwords and WANG is HRMS 8.9 upgrade, which X X\n05-008\n still being operated will address vendor support\n without vendor support. and password strength.\n Service continuity\n weaknesses for the\n -- --------- - -- - ---- ----- - --- , Periodically reassess and,\n ----- , and ----- , including as appropriate, revise the\n outdated Business -------- -- BCCP, develop\n Continuity Contingency disaster recovery\nCG-IT-\n Plan (BCCP), lack of procedures for ---- - and X X\n05-009\n disaster recovery ----- , complete the\n procedure details, an off- relocation of the off-site\n site storage location in storage location, and\n close proximity to the data periodically test the BCCP.\n center, and lack of BCCP\n testing exist.\n -------- -- Unix change\n control process supporting\n Develop and enforce\n ----- and --- -- have\n configuration management\n weaknesses including:\n procedures for developing\n procedures in support of\n test plans, documenting test\n the finalized CM policy\nCG-IT- results, implementing\n are not developed, X X\n05-010 software, management\n documentation supporting\n approval of system\n risk assessments is not\n changes, and retention of all\n maintained, formal change\n risk assessments and testing\n requests are not used, and\n documentation.\n test plans and test results\n are not documented.\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 31\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Significant Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n ------ - -- does not have\n Develop formal entity wide\n documented procedures\n procedures for granting,\n for controlling the\n monitoring, and terminating\nCG IT processes associated with\n ----- user accounts and the X X\n05-011 the granting, monitoring,\n periodic revalidation of\n and termination of user\n ----- user profiles by local\n accounts within FPD have\n security administrators.\n not been documented.\n -------- -- has not\n developed documented\n policies and procedures to Develop policies and\n restrict access to the UNIX procedures for restricting\n operating system and for and monitoring access to\nCG-IT- monitoring access, and the UNIX operating system\n X X\n05-012 periodic reviews are not for ---- - and - - -- and\n performed to determine if perform periodic reviews to\n monitoring of the UNIX ensure the effectiveness of\n operating system for---- - the monitoring process.\n and ----- is functioning as\n intended.\n ------------- Certification\n and Accreditations (C&A)\n Update and complete the\n for - - -- ----- -- --- -- --- ---\n C&A process for -----\n were not complete.\nCG-IT- -------- - -- -------- to include\n Specifically, security X X\n05-013 the completion of ST&Es\n testing and evaluations\n and the update of security\n (ST&E) were incomplete\n plans.\n and security plans had not\n been updated.\n -------- -- has not\n implemented formal Develop procedures for the\n procedures for the periodic regular and periodic\n management review and monitoring of high-level\nCG-IT-\n monitoring activities of ---- - database administrator X X\n05-015\n ---- - database and system administrator\n administrators and system activities, and the Oracle\n administrators, or the SYS account.\n Oracle SYS accounts.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 32\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Significant Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n Implement the individual\n fixes noted in the NFR for\n AppDetective identified vulnerabilities identified\n vulnerabilities on the ----- and institute a formal\nCG-IT- database including weak process for performing\n X X\n05-016 passwords, excessive periodic scans of the\n access permissions and ------ - -- network\n missing patches. environment, including the\n financial processing\n environment.\n Implement the individual\n fixes noted in the NFR for\n vulnerabilities identified\n The Enterprise Security\n and institute a formal\n Management (ESM) tool\nCG-IT- process for performing\n identified configuration X X\n05-017 periodic scans of the\n and account management\n ------ - -- network\n weaknesses on --- --\n environment, including the\n financial processing\n environment.\n ------ - -- management\n Internet Security Systems\n implemented immediate\nCG-IT- Internet Scanner identified\n corrective action by X X\n05-018 three hosts that were\n removing the BrightStor\n missing patches.\n agent from the three hosts.\n Implement a system change\n request to automatically\n Undelivered Orders \xe2\x80\x93 reestablish funds as\n Transaction Codes: A obligated ------- -------------\n report allowing users to ----- ---- -- - - ----- - -- are\nCG-IT-\n review and manually re- used, provide training to X X\n05-021\n establish obligations was users, and require users to\n not implemented as well as conduct reviews to\n the manual review process. determine when re-\n obligation to the associated\n UDO balances are required.\n Disaster recovery plans for\n the Operations Service\n Complete disaster recovery\n Center (OSC) Gold\n planning for the-----------\n Business Systems, which\nCG-IT- ------- - Gold Business\n include the ----------- ------ X X\n05-022 Systems and periodically\n -------- ------ ) and --- ---\n test disaster recovery and\n ---- -- --- - ----- ------\n contingency plans.\n --------- --------- ------------\n have not been completed.\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 33\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Significant Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n ----- has not completed a Fully implement planned\n security plan for CMPlus corrective actions to\nCG-IT-\n 5. complete the security plan X X\n05-023\n for CMPlus during the\n system\xe2\x80\x99s C&A process.\n ESM identified high and\n medium level\n Implement the individual\n vulnerabilities on the\n fixes noted in the NFR for\n ------- -- production\n vulnerabilities identified\nCG-IT- database over account\n and institute a formal X X\n05-024 management,\n process for performing\n configuration\n periodic scans of the -----\n management, password\n network environment.\n management, and patch\n management.\n AppDetective found\n vulnerabilities on the Implement the individual\n ------- - production fixes noted in the NFR for\n database over audit vulnerabilities identified\nCG-IT-\n management, and institute a formal X X\n05-025\n configuration process for performing\n management, password periodic scans of the -----\n management, and patch network environment.\n management.\n Complete planned\n corrective actions for the\n ------ has initiated required redesign of CMPlus/FLS\n changes on the application data interfaces to include\n code on the server side. functionality to\nCG-IT-\n However the required communicate data interface X X\n05-026\n update to the user errors back to the CMPlus\n workstations has not been unit/user by deploying the\n completed. patch to implement the\n required fix to users on\n client workstations.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 34\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Significant Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n Implement and enforce\n procedures for obtaining\n system security information\n Implementation and\n from ISSOs. Coast Guard\n management oversight of\n management should ensure\n Coast Guard\xe2\x80\x99s information\n the implementation of\n security program remains\n corrective actions to\n fragmented including\n improve system security\n communication and\nCG IT- policies and procedures\n enforcement of procedures X X\n05-027 regarding the C&A process,\n for security information\n patch management, account\n with the ISSOs, enforce\n management, monitoring of\n strong passwords and keep\n system software, and\n system security policies\n contingency planning.\n and procedures and C&A\n Also, implement a\n packages.\n background investigation\n process for CG contractors\n and hire needed personnel.\n\n\n Remaining IT NFRs Which Contributed to the Overall DHS Material Weakness for\n Financial System Security\n\n Remaining Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n User account maintenance Document and implement\n procedures for ----- civilian account maintenance\n personnel were not policies and procedures\nCG-IT- documented and access lists policies, perform periodic\n05-004 were not reviewed account reviews, and X X\n periodically and audit trails regularly monitor Direct\n are not reviewed on a Access audit trails.\n regular basis.\n The------ General Support Complete the C&A\nCG-IT- System (GSS) Certification package for the GSS in\n05-005 and Accreditation (C&A) compliance with DHS and X X\n not completed. Federal guidance.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 35\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Remaining Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n Retain, as evidence,\n Results of reviews over\n documentation of regular\n ------ user access were not\n reviews performed of the\nCG-IT- available and\n Windows 2000 CG ------\n05-014 documentation of periodic X X\n directory to ensure that the\n reviews was not on file at\n list of users and\n -------- --\n permissions is accurate.\n Develop and implement\n Formal procedures formal data center access\n regarding access to the procedures and a\nCG-IT-\n ------ - -- data center have formalized method to track\n05-019 X X\n not been established and information system-related\n implemented. items entering and exiting\n the facility.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 36\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n Department of Homeland Security\n FY2005 Information Technology\nNotification of Findings and Recommendations - Detail\n\n\n Federal Emergency Management Agency\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 37\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Department of Homeland Security\n FY2005 Information Technology\n Notification of Findings and Recommendations - Detail\n\n Federal Emergency Management Agency (FEMA)\n\n Significant IT NFRs Which Contributed to the Overall DHS Material Weakness for\n Financial System Security\n\n Significant Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness\n for Financial System\n Security\n Complete the C&A\n Three systems do not have accreditation packages for\n a Certification and FEMA.gov and----- -\n Accreditation (C&A). adequately document the\n Also, the ----- -- security results of the--------- ST&E,\n EPR- test and evaluation (ST&E) complete documentation for\nIT-05- did not provide adequate the ST&Es performed on X X\n 05 documentation of results, ------------- -- ------- ------- ----\n and six systems with ------ -- and -- - - ---- -- -- and\n completed C&As did not re-perform the C&A process\n include ST&E for ------ -- due to the major\n documentation. changes the system has\n undergone.\n The ----- -- Contingency\n Perform a full test of the\n Plan needs to adequately\n -- --- - Contingency Plan\n test the IT components of\n when the ----- ----- ------------\n the system/process and the\n --- -- -- is prepared to be the\n EPR- ------ -- Contingency Plan\n functional alternate site for\nIT-05- needs to be completed to X X\n Mt. Weather and update the\n 08 take into account the new\n ------ -- Contingency Plan\n Linux Operating system\n once the ------ --- migration is\n and Small Business\n complete. Conduct annual\n Administration web\n contingency plan testing.\n interface.\n Update the FEMA continuity\n FEMA has not prioritized\n of operations plan to\n its critical data and\n incorporate clearly the order\n operations, emergency\n of the 12 critical IT systems\n EPR- processing priorities and\n that would be brought back\nIT-05- procedures have not been X X\n online at the -------- -------\n 09 documented, and all\n -------------- alternate\n resources supporting\n processing site in the event of\n critical operations have not\n a disaster associated with ----\n been identified.\n --------- -\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 38\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Significant Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness\n for Financial System\n Security\n ESM identified high and\n medium level\n Implement the individual fixes\n vulnerabilities on -----\n listed in the NFR for the\n EPR- -- ----- --- that supports the\n vulnerabilities identified and\nIT-05- -------- application X X\n undertake an annual\n 10 including: account\n vulnerability assessment as\n management, configuration\n prescribed in DHS guidance.\n management and patch\n management.\n Implement the DHS password\n policy on all databases and\n EPR- Two Oracle databases were consider the implementation\nIT-05- identified with weak/default of an automated password X X\n 11 passwords. checking tool to help ensure\n that a strong password policy\n has been implemented\n Internet Scanner identified Implement the individual fixes\n high risk vulnerabilities on listed in the NFR for the\n EPR-\n 6 hosts in the following vulnerabilities identified and\nIT-05- X X\n areas: configuration undertake an annual\n 12\n management, and password vulnerability assessment as\n management. prescribed in DHS guidance.\n AppDetective identified\n high risk vulnerabilities in Implement the individual fixes\n the following areas on the listed in the NFR for the\n EPR-\n -------- database: account vulnerabilities identified and\nIT-05- X X\n management, configuration undertake an annual\n 13\n management, password vulnerability assessment as\n management, and patch prescribed in DHS guidance.\n management.\n Develop and implement a\n solution to limit excessive\n access to the -------- account\n mapping function, reevaluate\n EPR- Access to the Account and limit access rights to those\nIT-05- Mapping Tables in ----- -- with a business need to access X X\n 14 is excessive. the -- -- -- account mapping\n functions, and routinely\n monitor the account mapping\n functions and related changes\n made.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 39\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Remaining IT NFRs Which Contributed to the Overall DHS Material Weakness for\n Financial System Security\n\n Remaining Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n Policies and procedures do\n not exist to perform\n Develop and implement\n periodic review of\nEPR-IT- procedures regarding\n --- - ---- -- --- -- --- -\n05-01 periodic review of access X X\n -- - --------- -- - - -- --- -- ---\n lists.\n ------ -- ---------- user access\n lists.\n ---- ----- ---- ---------\n -- - --------- -- - - -- --- -- ---\n ------ -- ------------ access Disable users\xe2\x80\x99 ability to\n controls suspend a user\xe2\x80\x99s change the inactivity\n session after fifteen minutes threshold or disable the\n of inactivity. However, the password protected\nEPR-IT-\n option is not deactivated so screensaver and ensure that\n05-02 X X\n users have the ability to -- - --- - users are locked\n deactivate the screensaver. out of the system after\n Furthermore, users are not three invalid logon\n locked out after three attempts.\n unsuccessful logon\n attempts.\n Transfer all critical\n equipment out of the room\n in --- --- - ------ to an\n alternate secure site with\n capabilities to house IT\n The ----------- ---------\n equipment on raised floors\n ---- ---- had multiple\n and upon implementation\nEPR-IT- weaknesses including lack\n of the --- --- - --------------\n05-03 of raised floors, and IFMIS X X\n ---------- \xe2\x80\x9creal-time\xe2\x80\x9d back-\n production and test servers\n up facility, create\n in close proximity.\n redundant servers at the\n ----- ----- ----- ---- - -- - -- --\n for the two -- -- -- servers\n located at the ------- ------ -\n ---- --------- ---- ------- - -- --\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 40\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Remaining Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n Ensure that FEMA\n Instruction 1540.3 is\n The employee termination\n finalized, signed by the\n process for removing\n Under Secretary,\n system access policies or\n promulgated to all EP&R\n processes for ensuring that\n employees, and enforced\nEPR-IT- all general support system\n and per the instruction\n05-04 and application access, X X\n perform a review of\n including -- - -- -- , is\n authorized accounts on a\n removed in a timely manner\n semi-annual basis and\n for the separated employees\n remove terminated\n is in draft form.\n employees\xe2\x80\x99 access to all\n systems.\n Complete the\n Password protected\n implementation of ------ --\n screensaver properties are\n ----------- and disable the\nEPR-IT- not disabled. Therefore, the\n user\xe2\x80\x99s ability to change the\n05-06 current method of X X\n inactivity threshold or\n distributing of -- --- --\n disable the password\n passwords is not sufficient.\n protected screensaver.\n Enhance system\n documentation supporting\n Insufficient documentation the description of the\n exists to fully explain -------- user functions, with\nEPR-IT- ----- -- functions and user their associated system\n05-07 access capabilities capabilities and develop X X\n associated with those and implement procedures\n functions. to update the\n documentation as functions\n are added or modified.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 41\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\n Department of Homeland Security\n FY2005 Information Technology\nNotification of Findings and Recommendations \xe2\x80\x93 Detail\n\n\n Consolidated\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 42\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Department of Homeland Security\n FY2005 Information Technology\n Notification of Findings and Recommendations \xe2\x80\x93 Detail\n\n Consolidated\n\n Significant IT NFRs Which Contributed to the Overall DHS Material Weakness for\n Financial System Security\n\n Significant Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n Ensure that - ---- user\n DHS administrators do access is only granted upon\n not consistently require completion of the TIER new\nCONS- new users to complete user access request form and\nIT-05- the ------ new user evidence of supervisory X X\n 02 access form before authorization. In addition,\n granting access to the access request forms\n ------ . should be retained for at\n least one year.\n No policies and\n procedures are in place Develop and implement\n to periodically review policies and procedures for\n ------- user access lists the periodic review of ------\n to determine if access is access lists and develop and\nCONS-\n still needed and a implement policies and\nIT-05- X X\n documented process has procedures to promptly\n 03\n not been established to notify the -- ----\n notify-------- administrators of the\n administrators of termination or transfer of\n terminated or personnel with access.\n transferred personnel.\n Develop and implement a\n Informal processes are detailed SDLC or\n followed for making configuration management\n changes to ------ -------- procedures for performing\nCONS-\n and -------- ----- does changes over ----------\nIT-05- X X\n not have a version -- ----- template process and\n 04\n manager tool for implement a version\n template changes made manager tool in order to\n to the application. maintain previous versions\n of-- - -- --- --- - reports.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 43\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Significant Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n ------ configuration\n management controls\n Improve configuration\n can be improved\n management controls,\n including lead\n ensure adherence with the\n developers that have\n Department of Treasury\n access to production,\n SCM and ASSC SDLC\n segregation of duties\nCONS- Workflow and Processes\n issues exist for system\nIT-05- Handbook throughout DHS X X\n changes made outside\n 05 as they relate to opening an\n of the schedule ------\n SCR, and maintain test\n quarterly releases, all\n documentation for changes\n system change requests\n implemented outside of the\n (SCR) are not\n scheduled - -- -- quarterly\n documented, and test\n releases.\n documentation is not\n maintained.\n Implement recommended\n Discrepancies exist actions in order to make the\n between the DHS analytic report code,\nCONS-\n Performance and equations, and PAR guide\nIT-05- X X\n Accountability Report consistent and develop and\n 06\n (PAR) Guidance and implement a configuration\n the Analytical Report. management process over\n analytic report changes.\n Discrepancies Exist\n Implement changes to the\n Between the United\n DHS SGL normal balance\n States Standard General\n accounts for compliance\n Ledger (USSGL) and\nCONS- with the USSGL and\n the DHS Standard\nIT-05- develop a procedure to X X\n General Ledger (DHS\n 07 verify the abnormal balance\n SGL) account\n report logic after any\n classifications used to\n changes in the DHS SGL or\n populate the Abnormal\n USSGL.\n Balances Report.\n No documented\n procedures are in place\n for DHS components to\n Document and implement\n perform a formal\n procedures for DHS\nCONS- review, by a separate\n components to perform a\nIT-05- approving individual, of X X\n formal review of financial\n 08 financial data before\n data before moving it into\n moving the - ---- file\n the ------ Repository.\n from the Holding Area\n into the -------\n Repository.\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 44\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Significant Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n The DHS Chief Information\n Lack of compliance\n Officer (CIO), in\n with FISMA in the\n coordination with the DHS\n areas of access controls,\n Office of the Chief Financial\n entity-wide security\n Officer (OCFO) and other\n program planning and\nCONS- DHS functional leaders\n management,\nIT-05- should ensure further X X\n application software\n 09 emphasis on the monitoring\n development and\n and enforcement of policies\n change control, system\n and procedures through the\n software, segregation of\n performance of periodic\n duties, and service\n security control assessments\n continuity.\n and audits.\n\n\n Remaining IT NFRs Which Contributed to the Overall DHS Material Weakness for\n Financial System Security\n\n Remaining Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n Reevaluate ------ privileges\n assigned to Department of\n Treasury personnel access\nCONS- Treasury users, and restrict\n to DHS- - ---- ----\nIT-05- user account permissions to\n -- -- --- -------------------\n01 only the minimum X X\n ---- - - ---- - ---------\n privileges necessary to\n continues to be excessive.\n achieve the principle of\n least privilege.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 45\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\n Department of Homeland Security\n FY2005 Information Technology\nNotification of Findings and Recommendations - Detail\n\n\n Office of State and Local Government Coordination and\n Preparedness (SLGCP)\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 46\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Department of Homeland Security\n FY2005 Information Technology\n Notification of Findings and Recommendations \xe2\x80\x93 Detail\n\n State and Local Government Coordination and Preparedness (SLGCP)\n\n Significant IT NFRs Which Contributed to the Overall DHS Material Weakness for\n Financial System Security\n\n Significant Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n Implement a Memorandum\n of Understanding (MOU)\n IT control environment of agreement to include the\n the Department of Justice minimum-security related\n Office of Justice\n responsibilities and continue\nSLGCP- Programs (OJP) needs\n2005-06 strengthening over access\n to work with OJP to ensure X X\n controls, change controls, all weaknesses that impact\n service continuity, and SLGCP\xe2\x80\x99s reliance on the\n system software. OJP IT control environment\n are mitigated and corrected.\n\n Continue to finalize the\n Segregation of duties is policies and procedures that\n not properly enforced. address segregation of\n The SLGCP has not duties for SLGCP\n formed a separate\n information systems\nSLGCP- Information Systems\n department and has yet to\n functions and create an X X\n2005-12\n develop policies or Information Systems\n procedures outlining department that is\n segregation of duties responsible for all security\n controls or procedures. and network administration\n of SLGCP systems.\n Improve the process for\n notifying the Security\n Officer or Administrator of\n employee or contractor\n Application user accounts transfers/terminations so\nSLGCP- are not removed in a that system access to the\n timely manner after user\n X X\n2005-13 ---- - - --- - ----- -- - -- --- -----\n separation. ------------ --------- ----- - - ---\n -- - --------- -- - - -- --- -- ---\n -------- ----------- and\n -- - ---- ---s removed in a\n more timely manner.\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 47\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\n Department of Homeland Security\n FY2005 Information Technology\nNotification of Findings and Recommendations \xe2\x80\x93 Detail\n\n\n Transportation Security Administration\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 48\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Department of Homeland Security\n FY2005 Information Technology\n Notification of Findings and Recommendations \xe2\x80\x93 Detail\n\n Transportation Security Administration\n\n Significant IT NFRs Which Contributed to the Overall DHS Material Weakness for\n Financial System Security\n\n Significant Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n -------- -- Unix change\n control process supporting TSA management should\n --- -- -- - -- ------ -- -------- work with-- --- ------\n ------ ) and -- - - ------ management to ensure the\n -- ----- --- -- --- - -- --- development and\n ---- -- - have weaknesses enforcement of\n including: procedures in configuration management\nTSA-IT- support of the finalized procedures for developing\n X X\n 05-003 CM policy are not test plans, documenting test\n developed, documentation results, implementing\n supporting a risk software, management\n assessment is not approval of system\n maintained, formal change changes, and retention of\n requests are not used, and risk assessment and testing\n test plans and test results documentation.\n are not documented.\n TSA management should\n Service continuity\n work with - --- ------\n weaknesses for -----------\n management to ensure the\n ----------- ------- including\n periodic reassessment and,\n outdated Business\n as appropriate, revision of\n Continuity Contingency\n the ---------- BCCP,\nTSA-IT- Plan (BCCP), lack of\n development of disaster X X\n 05-004 disaster recovery\n recovery procedures for\n procedure details, an off-\n ------- - ----- -- completion\n site storage location in\n of the relocation of the off-\n close proximity to the data\n site storage location, and\n center, and lack of BCCP\n periodic testing of the\n testing exist.\n BCCP.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 49\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Significant Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n TSA management should\n work with - --- ------\n No documented\n management to ensure the\n procedures exist for\n development of formal\n controlling the processes\n entity wide procedures for\nTSA-IT- associated with the\n granting, monitoring, and X X\n 05-005 granting, monitoring, and\n terminating ----- user\n termination of user\n accounts and periodic\n accounts within------ have\n revalidation of------ user\n not been documented.\n profiles by local security\n administrators.\n -------- -- has not\n TSA management should\n developed documented\n work with - --- ------\n policies and procedures to\n management to ensure the\n restrict access to the UNIX\n development of policies and\n operating system, for\n procedures for restricting\nTSA-IT monitoring access, and\n and monitoring access to X X\n05-006 periodic reviews are not\n the UNIX operating system\n performed to determine if\n for ---- --- - --- - -- and\n monitoring of the UNIX\n performance of period\n operating system for---- -\n reviews of the monitoring\n -- ------- is functioning as\n process.\n intended.\n Certification and\n Accreditations (C&A) for\n TSA management should\n the ---- -- --- -- -----------\n work with - --- ------\n ---- -- -- ----- --- -- ---- --- - -\n management to ensure the\n -------- - -------- were not\n update and completion of\nTSA-IT complete. Specifically,\n the C&A process for X X\n05-007 security testing and\n --- ---- ------ --- - ------ to\n evaluations (ST&Es) were\n include the completion of\n incomplete and security\n ST&Es, and the update of\n plans had not been\n security plans.\n updated.\n\n TSA management should\n -------- -- has not\n work with-- --- ------\n implemented formal\n management to ensure the\n procedures for the periodic\n development of procedures\n management review and\nTSA-IT- for the regular and periodic\n monitoring of activities of X X\n 05-008 monitoring of high-level\n ---- - database\n ---- - database administrator\n administrators and system\n and system administrator\n administrators or the\n activities, and the --------\n Oracle SYS accounts.\n ----------------\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 50\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Significant Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n TSA management should\n work with - --- ------\n management to ensure the\n The Enterprise Security implementation of the\n Management tool individual fixes noted in the\n identified world writeable NFR for vulnerabilities\nTSA-IT-\n directories without a sticky identified and the institution X X\n 05-009\n bit set, and account of a formal process for\n management weaknesses performing periodic scans\n over DART. of the -- ---- - -- network\n environment, including the\n financial processing\n environment.\n TSA management should\n work with - --- ------\n management to ensure the\n implementation of the\n AppDetective identified\n individual fixes noted in the\n vulnerabilities on the -----\n NFR for vulnerabilities\nTSA-IT- database including weak\n identified and institution of X X\n 05-010 passwords, excessive\n a formal process for\n access permissions and\n performing periodic scans\n missing patches.\n of the -- ---- - -- network\n environment, including the\n financial processing\n environment.\n ------ - -- management\n Internet Security Systems\n implemented immediate\nTSA-IT- Internet Scanner identified\n corrective action by X X\n 05-011 three hosts that were\n removing the BrightStor\n missing patches.\n agent from the three hosts.\n TSA management should\n Inaccuracies exist within ensure that personnel errors\n TSA personnel records regarding separated\nTSA-IT which addresses both employees cited during the\n X X\n05-012 separated employee issue prior year audit are\n and other erroneous corrected and\n personnel records. documentation of corrective\n actions retained on file.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 51\n\x0c Appendix B\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Remaining IT NFRs Which Contributed to the Overall DHS Material Weakness for\n Financial System Security\n\n Remaining Findings\n Contributing to the\n New Repeat Overall DHS\nNFR # Condition Recommendation\n Issue Issue Material Weakness for\n Financial System\n Security\n TSA management should\n work with - --- ------\n Formal procedures management to ensure the\n regarding access to the development and\n --- --- -- - - -- --- ------- implementation of formal\nTSA-IT\n ---- ------------------ --- data center access\n05-001 X X\n ------ - have not been procedures and a\n established and formalized method to track\n implemented. information system-related\n items entering and exiting\n the facility.\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 52\n\x0c Appendix C\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\n Appendix C\n\nStatus of Prior Year Notices of Findings and Recommendations\n And Comparison To\n Current Year Notices of Findings and Recommendations\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 53\n\x0c Appendix C\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Disposition\nComponent NFR No. Description Closed Repeat\n\nUSCIS 04-09 Access control weaknesses were identified in the----- -- - -- -------- and 05-04\n were not documented as part of the Certification and Accreditation\n (C&A) package.\nUSCIS 04-10 ------- - -- users at the Vermont Service Center have the ability to X\n adjudicate applications as well as process payments, which are\n considered incompatible duties.\nUSCIS 04-18 USCIS does not have procedures in place to periodically review X\n ------ -- ----- --- - ----------- - --- ----------------- - user access lists and\n could not provide a list of all authorized---- -- -- users upon request.\nUSCIS 04-19 ------- - -- -- - ---- at the Vermont Service Center have ability to adjudicate X\n applications as well as process payments, which are considered\n incompatible duties.\nUSCIS 04-21 Interface controls to ensure that data transmitted by the lockbox X\n operation is accurately uploaded into the National Business Center\xe2\x80\x99s\n -- ---- - --------- --- --- ---- -- -- - --- ---- - database need improvement.\nUSCIS 04-27 The site C&A package for the California Service Center has expired. 05-02\n\n\n\nICE 04-17 Access control weaknesses were identified in the ---- - --- ----- - - --- X\n -- - --------- -- -- - ----- .\nICE 04-18 ICE does not have procedures in place to periodically review -------- 05-07\n ------ ----- --- - ---- ------ - - - - ---- -- --- user access lists and could not\n provide a list of all authorized-------- users upon request.\n\n\nCBP 04-01 Nineteen individual user accounts on the ------ - --------- -------- 05-02\n mainframe security software had excessive privileges assigned to them.\nCBP 04-02 Weaknesses in the C&A process for the --- -- -- - -- ----------------- 05-23\n --- ----- ----- - - lack of evaluation of the need for a separate C&As for\n applications included in the Administrative Applications C&A, the and\n improvements needed in risk assessment guidance.\nCBP 04-03 Weaknesses in disaster recovery testing and continuity of critical X\n operational functions for the ----- and the --------- -- --- ---- -\n -- - --------- -- -- - ----- ------- - - at the alternate processing site.\nCBP 04-04 Excessive sensitive functions and high-risk combinations have been 05-18\n assigned to ACS users.\nCBP 04-05 Certain controls can be overridden in ---- -- without supervisory 05-04\n approval.\nCBP 04-06 Excessive access has been granted to ------ ------- - --------- - - --- -- X\n -- --------------- ---- -- - ----- --- -- ----- -- --- -------- ---- - ---- ----- ---------\nCBP 04-07 Weaknesses in the C&A process at field sites. 05-31\nCBP 04-08 Improvements are needed in system logical access controls over 05-09\n network assets affecting headquarters and the----- - --- ------ -- - -- ---\nCBP 04-09 Interconnection Security Agreements (ISA) are not documented for 92 05-11\n partners that connect with ----- .\nCBP 04-10 Access is not appropriately restricted to -- --- - vendor and bank tables. 05-29\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 54\n\x0c Appendix C\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Disposition\nComponent NFR No. Description Closed Repeat\n\nCBP 04-11 X\n Weaknesses with the ------ ----- ----------- Risk Assessment.\nCBP 04-12 Improvements needed in restricting access to sensitive system level 05-28\n transactions through the On-Line Transaction Processing System\n Security ------- -\nCBP 04-13 ----- -- ---- - - - - --- segregation of duties issues were identified with 05-01\n several users.\nCBP 04-14 The incident handling and response capability needs improvement 05-16\n regarding incident detection and initiation, response, recovery, and\n closure.\nCBP 04-15 Audit logs are not appropriately monitored for the --- ---- - -- - ------- . X\nCBP 04-16 Weaknesses in the access control process for the------------ ------------ 05-05\n Materials Management.\nCBP 04-17 System access, user account management, and configuration 05-09\n weaknesses identified with the ------ general controls environment for\n materials management module.\nCBP 04-18 Least privilege principles are not appropriately enforced for mainframe 05-30\n user groups\xe2\x80\x99 access to sensitive datasets/utilities.\n\n\nCG 04-001 Excessive access privileges were granted to the ----- Financial 05-014\n Reporting System.\nCG 04-002 X\n The ----- - - --------------- -- ------- --- ------- User Guide is outdated.\nCG 04-003 Comprehensive policies for conducting personnel suitability 05-006\n investigations or records to support the results of personnel suitability\n investigations do not exist.\nCG 04-004 No documented procedures exist requiring local site administrators to 05-011\n control access to------- 17 user accounts have not been appropriately\n removed for terminated employees, and local site administrators do not\n periodically revalidate user accounts.\nCG 04-005 No documented policies and procedures to restrict access to the UNIX 05-012\n operating system and for monitoring access. No periodic reviews to\n determine if current monitoring is functioning as intended.\nCG 04-006 Weaknesses associated with the UNIX system software change control 05-010\n process.\nCG 04-007 Outdated and incomplete security plans, and C&As not performed for 05-013\n the ---- -- --- -- --- ------- ------ -- ----- ----- - ------- - ------ --- ---- - ---\n -------- -- ---- ---- ------ - - --- -- -- -- .\nCG 04-008 Service continuity weaknesses for the ----- ------------- ------------- 05-009\n ---------- - - ------ including outdated Business Continuity Contingency\n Plan (BCCP), lack of disaster recovery procedure details, an off-site\n storage location in close proximity to the data center, and lack of\n BCCP testing.\nCG 04-009 --------------------------- ------- and CMPlus interface errors are not 05-026\n automatically communicated back to the corresponding CMPlus\n unit/user.\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 55\n\x0c Appendix C\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Disposition\nComponent NFR No. Description Closed Repeat\n\nCG 04-010 The security plans for the ------- -- --- -- -- --- --- --- - -- - ---- - --- ----- X\n -------------- -- ----- are not in compliance with criteria.\nCG 04-011 CMPlus passwords do not automatically expire, CMPlus accounts are 05-023\n not locked out after successive invalid login attempts, and a\n documented CMPlus system security plan does not exist.\nCG 04-012 The Operations Service Center (OSC) has not implemented a disaster 05-022\n recovery plan.\nCG 04-013 Entity wide security program planning is not in place for the Personnel 05-005\n Service Center (PSC).\nCG 04-014 05-001\n Weaknesses exist regarding PSC service continuity and resource\n classifications.\nCG 04-015 Weaknesses were identified at PSC relating to weak password settings, 05-003, 05-004,\n lack of monitoring of access lists or changes to security profiles, and 05-008\n lack of policies for monitoring operating system software.\nCG 04-016 Documented procedures do not exist at PSC to enforce segregation of X\n duties principles.\nCG 04-017 Database Scanner identified vulnerabilities on the Supply Center 05-025\n Computer Replacement (SCCR) database supporting---- --- - .\nCG 04-018 The Enterprise Security Manager (ESM) tool identified high and 05-024\n medium level vulnerabilities on three hosts supporting ---------\nCG 04-019 Database Scanner identified vulnerabilities on the -------------------- 05-016\n -- --- - --- ---- ---- -- - - --- - ----\nCG 04-020 ESM identified high and medium level vulnerabilities on three hosts 05-017\n supporting --- ----- -- -- ---- - -- --- ----\nCG 04-021 Change control weaknesses exist at the PSC, including lack of 05-002\n documented test plans, test results, and software modification audit\n trails.\nCG 04-022 Several network-based vulnerabilities were identified on the external X\n Information Technology resources for Coast Guard.\nCG 04-023 Weaknesses were self-identified by Coast Guard on two hosts X\n supporting the ------- ----- - --- - ----- - --- - -- - - -- - -- --- -- --- -- ------ -----\n ----- -- --- and were not subsequently addressed.\nCG 04-024 Implementation and management oversight of Coast Guard\xe2\x80\x99s 05-027\n information security program remains fragmented.\nCG 04-025 Interface controls do not ensure that record counts match as data is X\n transferred from -------- into CheckFree.\nCG 04-026 Three of the four Database Administrators at ------ ---- also have X\n System Administrator rights and responsibilities.\nCG 04-063 Undelivered Orders \xe2\x80\x93 Transaction Codes: A report allowing users to 05-021\n review and manually re-establish obligation was not implemented as\n well as the manual review process. (prior year Financial Notice of\n Finding and Recommendation)\n\n\nCONS 04-01 Excessive - --- ----- -- -- --- -------- - ---- --- ------ - - --------------- system 05-01\n privileges were granted and a documented process does not exist to\n notify -- - -- application administrators of user termination or transfer\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 56\n\x0c Appendix C\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Disposition\nComponent NFR No. Description Closed Repeat\n\n for timely removal of system access.\n\nCONS 04-02 The interagency agreement between DHS and -- ----- --- -- --- - - --- - -- X\n -- ------- --- ---- ----- - - -- -- ---- ---- --- ---- -- ------ - - does not describe\n the information security controls that need to be implemented and\n managed by the data owner (DHS) or the system operator (Treasury).\nCONS 04-03 Lack of compliance with FISMA in the areas of access controls, entity- 05-09\n wide security program planning and management, system software,\n segregation of duties, and service continuity.\n\n\nEPR 04-11 Policies and procedures do not exist to perform period review of 05-01\n --- - ---- -- --- -- --- - --- - -- -- -- - -- --- -- --- -- --- --- ----- ---- -- --- user\n access lists.\nEPR 04-16 -- -- ----- ---- --------- --- - -- -- -- - -- --- -- ---- - - -- - - - -- - ------ --- 05-02\n access controls do not appropriately suspend a user\xe2\x80\x99s session after ten\n minutes of activity and user are not locked out after three unsuccessful\n logon attempts.\nEPR 04-17 The----- ------ ---- - -------- ---- had multiple weaknesses including lack 05-03\n of raised floors, production and test servers in close proximity, lack of\n review of physical user access lists, and no procedures to periodically\n change keypad combinations.\nEPR 04-18 Lack of consistent policies or processes for ensuring that all general 05-04\n support system and application access, including --------- , is timely\n removed for terminated employees.\nEPR 04-19 05-05\n Seven critical systems do not have a C&A.\nEPR 04-20 No documented process for generating or communicating new or reset 05-06\n ----- -- passwords to users.\nEPR 04-21 X\n -------- Table audit trail data is not reviewed periodically.\nEPR 04-22 05-07\n Insufficient documentation exists to fully explain -------- functions and\n user access capabilities associated with those functions.\nEPR 04-23 The ESM tool identified several high and medium level technical 05-10\n vulnerabilities on the ----- --- ------\nEPR 04-24 Oracle databases, including the ----- -- production and development 05-11\n databases, contained weak or default passwords.\nEPR 04-25 The ------- - tool identified 88 technical vulnerabilities on 13 different 05-12\n FEMA hosts, the majority of which related to missing patches.\nEPR 04-28 The Intra-governmental Payment and Collection System (IPAC) X\n provides for interagency billings and payments for supplies and\n services. Of five IPAC User Request Forms selected for testing, we\n noted one form on which the employee\xe2\x80\x99s access was not specifically\n indicated.\nEPR 04-32 The Continuity of Operations Plans (COOP) for ----- -- -- -------- -- are 05-08\n in draft.\nEPR 04-35 ------- ------ - has not documented interagency agreements for alternate X\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 57\n\x0c Appendix C\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n Disposition\nComponent NFR No. Description Closed Repeat\n\n data processing and telecommunication facilities in the event of a\n disaster.\nEPR 04-39 FEMA has not prioritized its critical data and operations, emergency 05-09\n processing priorities and procedures have not been documented, and all\n resources supporting critical operations have not been identified.\n\n\nLTD 04-01 Incident response policies and procedures are not in place and/or X\n finalized for the FLETC--- - -- - -- --- ------------------- -- -------- .\n\n\nSLGCP 04-05 A system owner and security manager has not been identified to track X\n background investigations and personnel clearances.\n\nSLGCP 04-06 A Service Level Agreement (SLA) is not in place with the third party X\n hosting the Data Collection Toolkit (DCT).\nSLGCP 04-07 A documented security awareness training program is not in place. X\n\n\nSLGCP 04-08 Segregation of duties is not properly enforced and documented policies 2005-12\n outlining segregation of duties controls or procedures do not exist.\n\nSLGCP 04-09 Access privileges and profiles for the --- - -- -- -------- --- - -- - --------- -- X\n -- -- --- --------- ----- ---------- internal users are not properly\n administered, resulting in an unnecessary number of users with the\n ability to update the vendor table.\nSLGCP 04-10 Application user accounts are not removed in a timely manner after 2005-13\n user separation.\n\nSLGCP 04-22 A C&A does not exist for the ------------ --------- -- ----- X\n\n\nSLGCP 04-25 The reconciliation process for financial transactions that occurred X\n between ----- -- and the-- - - - - ---- -- ----- --- - ----- was not fully\n implemented throughout the fiscal year.\nSLGCP 04-26 The ----- - - --- ------- -- -- ----- captured transactions but did not capture X\n user activity for three months of the fiscal year.\n\n\nTSA 04-01 Segregation of duties is not properly enforced in the ------- X\n ----- ------- - within---------\nTSA 04-02 Weaknesses in -------- access controls, network security, and system X\n security controls.\nTSA 04-03 System financial integrity issues identified in the ------ application. X\nTSA 04-04 Inaccuracies exist within TSA personnel records which addresses both 05-12\n separated employee issue and other erroneous personnel records\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 58\n\x0c Appendix D\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\n Appendix D\n\nManagement Response to Draft IT Management Letter\n\n\n\n\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 59\n\x0c Appendix D\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 60\n\x0c Appendix D\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 61\n\x0c Appendix D\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 62\n\x0c Appendix D\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 63\n\x0c Appendix D\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 64\n\x0c Appendix D\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 65\n\x0c Appendix D\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 66\n\x0c Appendix D\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 67\n\x0c Appendix D\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 68\n\x0c Appendix D\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 69\n\x0c Appendix D\n\n Department of Homeland Security\n Information Technology Management Letter\n September 30, 2005\n\n\n\n\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\n 70\n\x0c Report Distribution\n\n Department of Homeland Security\n\n Secretary\n Deputy Secretary\n General Counsel\n Chief of Staff\n Deputy Chief of Staff\n Executive Secretary\n Under Secretary, Management\n Chief Information Officer\n Chief Financial Officer\n Chief Information Security Officer\n Assistant Secretary, Public Affairs\n Assistant Secretary, Legislative and Intergovernmental Affairs\n Assistant Secretary, Policy\n DHS Audit Liaison\n Chief Information Officer, Audit Liaison\n\n Office of Management and Budget\n\n Chief, Homeland Security Branch\n DHS OIG Budget Examiner\n\n Congress\n\n Congressional Oversight and Appropriations Committees, as appropriate\n\n\n\n\nInformation Technology Management Letter for the FY 2005 DHS Financial Statement Audit\n\x0cAdditional Information and Copies\n\nTo obtain additional copies of this report, call the Office of Inspector General\n(OIG) at (202) 254-4100, fax your request to (202) 254-4285, or visit the OIG\nweb site at www.dhs.gov/oig.\n\nOIG Hotline\n\nTo report alleged fraud, waste, abuse or mismanagement, or any other kind\nof criminal or noncriminal misconduct relative to department programs or\noperations, call the OIG Hotline at 1-800-323-8603; write to DHS Office of\nInspector General/MAIL STOP 2600, Attention: Office of Investigations \xe2\x80\x93\nHotline, 245 Murray Drive, SW, Building 410, Washington, DC 20528; fax\nthe complaint to (202) 254-4292; or email DHSOIGHOTLINE@dhs.gov. The\nOIG seeks to protect the identity of each writer and caller.\n\x0c' | 2006 | [
"b' DEPARTMENT OF HOMELAND SECURITY\\n\\n Office of Inspector General\\n\\n Information Technology\\n Management Letter\\n for the FY 2005 DHS\\n Financial Statement Audit\\n (Redacted)\\n\\n\\n\\n\\n Notice: The Department of Homeland Security, Office of Inspector General, has redacted\\n this report for public release. The redactions are identified as (b)(2), comparable to 5\\n U.S.C. \\xc2\\xa7 552 (b)(2). A review under the Freedom of Information Act will be conducted upon\\n request.\\n\\n\\n\\n\\n Office of Information Technology\\nOIG-06-49 July 2006\\n\\x0c Office of Inspector General\\n\\n U.S. Department of Homeland Security\\n Washington, DC 20528\\n\\n\\n\\n\\n July 10, 2006\\n\\n Preface\\n\\nThe Department of Homeland Security (DHS) Office of Inspector General (OIG) was established by\\nthe Homeland Security Act of 2002 (Public Law 107-296) by amendment to the Inspector General\\nAct of 1978. This is one of a series of audit, inspection, and special reports published by our office\\nas part of our DHS oversight responsibility to promote economy, effectiveness, and efficiency within\\nthe department.\\n\\nThis report presents the information technology (IT) management letter for DHS\\xe2\\x80\\x99 FY 2005 financial\\nstatement audit. It contains observations and recommendations related to information technology\\ninternal control that were not required to be reported in the financial statement audit report (OIG-06-\\n09, November 2005) and represents the separate restricted distribution report mentioned in that\\nreport. The independent accounting firm KPMG LLP (KPMG) performed the audit of DHS\\xe2\\x80\\x99\\nfinancial statement as of September 30, 2005, and prepared this IT management letter. KPMG is\\nresponsible for the attached IT management letter dated December 15, 2005, and the conclusions\\nexpressed in it.",
"We do not express opinions on DHS\\xe2\\x80\\x99 financial statements or internal control or\\nconclusion on compliance with laws and regulations.\\n\\nThe recommendations herein have been discussed in draft with those responsible for\\nimplementation. It is our hope that this report will result in more effective, efficient, and economical\\noperations. We express our appreciation to all of those who contributed to the preparation of this\\nreport.\\n\\n\\n Richard L. Skinner\\n Inspector General\\n\\x0c\\x0c\\x0c Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\n INFORMATION TECHNOLOGY MANAGEMENT LETTER\\n\\n TABLE OF CONTENTS\\n Page\\n\\nObjective, Scope and Approach 1\\n\\nSummary of Findings and Recommendations 2\\n\\nFindings by Audit Area 2\\n\\n Entity-Wide Security Program Planning and Management 2\\n\\n Access Controls 3\\n\\n Application Software Development and Change Controls 4\\n\\n System Software 4\\n\\n Segregation of Duties 5\\n\\n Service Continuity 5\\n\\n Application Controls 6\\n\\n APPENDICES\\n\\n Appendix Subject Page\\n\\n\\n Description of Key Financial Systems and IT Infrastructure within the\\n A 8\\n Scope of the FY 2005 DHS Financial Statement Audit\\n\\n\\n\\n FY 2005 Notice of IT Findings and Recommendations - Detail by DHS\\n B 15\\n Organizational Element\\n\\n\\n\\n Status of Prior Year Notices of Findings and Recommendations and\\n C 53\\n Comparison to Current Year Notices of Findings and Recommendations\\n\\n\\n D Management Response to Draft DHS IT Management Letter 59\\n\\x0c Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n OBJECTIVE, SCOPE AND APPROACH\\nKPMG performed an audit of DHS IT general controls in support of the FY 2005 DHS financial\\nstatement engagement.",
"The overall objective of our audit was to evaluate the effectiveness of IT\\ngeneral controls of DHS\\xe2\\x80\\x99 financial processing environment and related IT infrastructure as necessary\\nto support the engagement. The Federal Information System Controls Audit Manual (FISCAM),\\nissued by the Government Accountability Office, formed the basis of our audit. The scope of the IT\\ngeneral controls assessment included testing at DHS\\xe2\\x80\\x99 Office of the Chief Financial Officer (OCFO),\\nand all significant DHS component as described in Appendix A.\\n\\nFISCAM was designed to inform financial auditors about IT controls and related audit concerns to\\nassist them in planning their audit work and to integrate the work of auditors with other aspects of the\\nfinancial audit. FISCAM also provides guidance to IT auditors when considering the scope and\\nextent of review that generally should be performed when evaluating general controls and the IT\\nenvironment of a federal agency. FISCAM defines the following six control functions to be essential\\nto the effective operation of the general IT controls environment.\\n\\n \\xe2\\x80\\xa2 Entity-wide security program planning and management (EWS) \\xe2\\x80\\x93 Controls that provide a\\n framework and continuing cycle of activity for managing risk, developing security policies,\\n assigning responsibilities, and monitoring the adequacy of computer-related security controls.\\n \\xe2\\x80\\xa2 Access control (AC) \\xe2\\x80\\x93 Controls that limit and/or monitor access to computer resources (data,\\n programs, equipment, and facilities) to protect against unauthorized modification, loss, and\\n disclosure.\\n \\xe2\\x80\\xa2 Application software development and change control (ASDCC) \\xe2\\x80\\x93 Controls that help to\\n prevent the implementation of unauthorized programs or modifications to existing programs.\\n \\xe2\\x80\\xa2 System software (SS) \\xe2\\x80\\x93 Controls that limit and monitor access to powerful programs that\\n operate computer hardware.\\n \\xe2\\x80\\xa2 Segregation of duties (SD) \\xe2\\x80\\x93 Controls that constitute policies, procedures, and an\\n organizational structure to prevent one individual from controlling key aspects of computer-\\n related operations, thus deterring unauthorized actions or access to assets or records.\\n \\xe2\\x80\\xa2 Service continuity (SC) \\xe2\\x80\\x93 Controls that involve procedures for continuing critical operations\\n without interruption, or with prompt resumption, when unexpected events occur.\\n\\nIn addition to testing DHS\\xe2\\x80\\x99 general control environment, KPMG performed application control tests\\non a limited number of DHS financial systems and applications.",
"The application control testing was\\nperformed to assess the controls that support the financial systems\\xe2\\x80\\x99 internal controls over the input,\\nprocessing, and output of financial data and transactions.\\n\\n \\xe2\\x80\\xa2 Application Controls (APC) - Application controls are the structure, policies, and procedures\\n that apply to separate, individual application systems, such as accounts payable, inventory,\\n payroll, grants, or loans.\\n\\nTo complement our general IT controls audit, we also performed technical security testing for key\\nnetwork and system devices, as well as testing over key financial application controls. The technical\\nsecurity testing was performed both over the Internet and from within select DHS facilities, and was\\nfocused on test, development, and production devices that directly support DHS financial processing\\nand key general support systems.\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 1\\n\\x0c Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n SUMMARY OF FINDINGS AND RECOMMENDATIONS\\nDuring FY 2005 DHS took corrective action to address many prior year IT control weaknesses.\\nHowever, during FY 2005, we continued to find IT general control weaknesses at each DHS\\ncomponent. The most significant information security weaknesses from a financial statement audit\\nperspective relate to entity-wide security, access controls, and service continuity. Collectively, these\\nIT control weaknesses limit DHS\\xe2\\x80\\x99 ability to ensure that critical financial and operational data is\\nmaintained in such a manner to ensure confidentiality, integrity, and availability. In addition, these\\nweaknesses negatively impact the internal controls over DHS financial reporting and its operation,\\nand we consider them to collectively represent a material weakness for financial system security\\nunder standards established by the AICPA and accepted by the GAO.\\n\\nDuring fiscal year 2005, DHS took several actions to improve its IT general control environment, and to\\naddress many prior year general IT control issues.",
"For example, the Coast Guard has begun performing\\nregular technical vulnerability scans on their information technology network and key systems. These\\nscans resulted in the reduction of the number of conditions our audit team identified during our testing. In\\naddition, DHS issued an update to DHS Policy 4300A, Sensitive System Handbook. The purpose of this\\nHandbook update was to provide specific techniques and procedures for implementing the requirements\\nof DHS\\xe2\\x80\\x99 IT Security Program for Sensitive Systems. These actions resulted in the correction of some\\nconditions we reported in 2004. DHS needs further emphasis on the monitoring and enforcement of the\\npolicies and procedures through the performance of periodic security control assessments and audits.\\n\\n FINDINGS BY IT AUDIT AREA\\nEntity-Wide Security Program Planning and Management\\n\\nDuring FY 2005 DHS continued to make progress in having all of its financial systems certified and\\naccredited. However, continued efforts are needed, especially in the areas of program management\\nrelated to the detection and monitoring of technical information security weaknesses. Collectively,\\nthe identified entity-wide security planning and management issues, coupled with the access control\\nissues described later in this management letter, reduce the overall effectiveness of the entity-wide\\nsecurity programs for the individual DHS components and the overall Department.\\n\\nConditions noted in FY 2005 regarding entity-wide security program planning and management at\\nDHS were:\\n\\n\\xe2\\x80\\xa2 EWS-05\\xe2\\x80\\x931: Despite improvements in the process of performing Certification and Accreditation\\n (C&A) of IT systems, five DHS component financial and associated feeder systems were not properly\\n certified and accredited.\\n\\xe2\\x80\\xa2 EWS-05-2: Instances of fragmented, incomplete, or missing security policies and procedures relating\\n to the hiring and termination of employees, reviewing of access to key financial systems, computer\\n incident response capabilities, and interconnectivity agreements exist.\\n\\nRecommendations:\\n\\nWe recommend that the DHS Office of Chief Information Officer in coordination with the OCFO:\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 2\\n\\x0c Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\na) Ensure adherence to a DHS C&A program across all DHS components, which should include an\\n emphasis on a consistent and thorough approach to the testing of key technical controls during the\\n certification process; and\\nb) Ensure the consistent implementation of security programs, policies, and procedures.\\n\\nAccess Controls\\n\\nDuring FY 2005 we noted significant access control vulnerabilities with internal IT systems (i.e.,\\ninside the components\\xe2\\x80\\x99 firewalls).",
"These are significant issues because personnel inside the\\norganization who best understand the organization\\xe2\\x80\\x99s systems, applications, and business processes are\\nable to have unauthorized access to some systems and applications. Some of the identified vulnerable\\ndevices are used for test and development purposes. In some cases, users are able to access test and\\ndevelopment devices with group passwords, system default passwords, or the same passwords with\\nwhich they log into production devices. As a result, test and development devices could be a target of\\nhackers/crackers to obtain information (i.e., user password listings) that can be used to attempt further\\naccess into DHS\\xe2\\x80\\x99 IT environment.\\n\\nConditions noted in FY 2005 regarding access controls at DHS were:\\n\\n\\xe2\\x80\\xa2 AC-05-1: Instances of missing and weak user passwords on key servers and databases.\\n\\xe2\\x80\\xa2 AC-05-2: User account lists were not periodically reviewed for appropriateness, and inappropriate\\n authorizations and excessive access privileges for group user accounts were allowed.\\n\\xe2\\x80\\xa2 AC-05-3: Instances where workstations, servers, or network devices were configured without\\n necessary security patches, or were not configured in the most secure manner.\\n\\xe2\\x80\\xa2 AC-05-4: Application and operating system settings were not configured for automatic log-off or\\n account lockout.\\n\\nRecommendations:\\n\\nWe recommend that the DHS Office of Chief Information Officer in coordination with the OCFO:\\na) Ensure that password controls meet DHS password requirements on all key financial systems;\\nb) Implement an account management certification process within all the components, to ensure the\\n periodic review of user accounts for appropriate access;\\nc) Implement a DHS-wide patch and security configuration process, and ensure compliance with the\\n requirement that systems are periodically tested by individual DHS components and the DHS-CIO;\\n and\\nd) Conduct periodic vulnerability assessments, whereby systems are periodically reviewed for access\\n controls not in compliance with DHS and Federal guidance.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 3\\n\\x0c Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\nApplication Software Development and Change Control\\n\\nDuring FY 2005 we noted that DHS took corrective actions to address IT control issues related to\\napplication software changes.",
"However, we noted that in some cases the application software change\\ncontrol documentation was still not consistent with DHS systems development life cycle (SDLC)\\nguidance.\\n\\nConditions noted in FY 2005 regarding application system development and change control at DHS\\nand its components were:\\n\\n\\xe2\\x80\\xa2 ASDCC-05-1: Instances where policies and procedures regarding configuration management\\n controls were not in place to prevent users from having concurrent access to the development, test,\\n and production environments of the system.\\n\\xe2\\x80\\xa2 ASDCC-05-2: Changes made to the configuration of the system were not always documented\\n through System Change Requests (SCRs), test plans, test results, or software modifications.\\n Additionally, documented approval did not exist, or was not always retained, for emergency\\n enhancements, \\xe2\\x80\\x9cbug\\xe2\\x80\\x9d fixes, and data fixes, and in some cases, audit logs for tracking changes to the\\n data or systems were not activated.\\n\\nRecommendations:\\n\\nWe recommend that the DHS Office of Chief Information Officer in coordination with the OCFO:\\n\\na) Develop and implement policies and procedures regarding configuration management controls, and\\n ensure that users do not have concurrent access to development, test, and production environments;\\n and\\nb) Ensure adherence to policies that require changes to the configuration of the system are approved and\\n documented, and audit logs are activated and reviewed on a periodic basis.\\n\\nSystem Software\\n\\nWe noted weaknesses in programs designed to operate and control the processing activities of\\ncomputer equipment.",
"Weaknesses in this control area, closely linked to entity-wide security and\\naccess controls, increase the likelihood that unauthorized individuals using system software could\\ncircumvent security controls to read, modify, or delete critical or sensitive information and programs.\\nAuthorized users of the system could gain unauthorized privileges to conduct unauthorized actions;\\nand/or systems software could be used to circumvent edits and other controls built into application\\nprograms.\\n\\nConditions noted regarding system software at DHS were:\\n\\n\\xe2\\x80\\xa2 SS-05-1: Instances where policies and procedures for restricting and monitoring access to operating\\n system software were not implemented or were inadequate. In some cases, the ability to monitor\\n security logs did not exist.\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 4\\n\\x0c Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\xe2\\x80\\xa2 SS-05-2: Changes to sensitive operating system settings and other sensitive utility software and\\n hardware were not always documented.\\n\\nRecommendation:\\n\\nWe recommend that the DHS Office of Chief Information Officer, in coordination with the OCFO,\\nmonitor the use, and changes related to operating systems, and other sensitive utility software and\\nhardware.\\n\\nSegregation of Duties\\n\\nDuring FY 2005, we continued to note instances where an individual controlled more than one critical\\nfunction within a process, increasing the risk that erroneous or fraudulent transactions could be\\nprocessed, improper program changes could be implemented, and computer resources could be\\ndamaged or destroyed, without detection.",
"Additionally, we noted a lack of segregation of duties\\nbetween major operating and programming activities, including duties performed by users,\\napplication programmers, and data center staff.\\n\\nConditions noted regarding segregation of duties at DHS were:\\n\\n\\xe2\\x80\\xa2 SD-05-1: Instances where individuals were able to perform incompatible functions, such as the\\n changing, testing, and implementing of software, without sufficient compensating controls in place.\\n\\xe2\\x80\\xa2 SD-05-2: Instances where key security positions were not defined or assigned, and descriptions of\\n positions were not documented or updated.\\n\\nRecommendations:\\n\\nWe recommend that the DHS Office of Chief Information Officer in coordination with the OCFO:\\na) Document user responsibilities so that incompatible duties are consistently separated. If this is not\\n feasible given the smaller size of certain functions, then sufficient compensating controls, such as\\n periodic peer reviews, should be implemented; and\\nb) Assign personnel to key security positions, and ensure that position descriptions are kept current.\\n\\nService Continuity\\n\\nDuring FY 2005 we noted that DHS took some corrective actions to address IT control issues related\\nto developing contingency plans and the back-up and protection of critical system data. Despite these\\nimprovements, weaknesses related to business continuity plans continue to exist.",
"These issues are\\nimportant because losing the capability to process, retrieve, and protect information maintained\\nelectronically can significantly affect an agency\\xe2\\x80\\x99s ability to accomplish its mission.\\n\\nConditions noted regarding service continuity at DHS were:\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 5\\n\\x0c Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\xe2\\x80\\xa2 SC-05-1: Five DHS components had incomplete or outdated business continuity plans and systems\\n with incomplete or outdated disaster recovery plans. Some plans did not contain current system\\n information, emergency processing priorities, procedures for backup and storage, or other critical\\n information.\\n\\xe2\\x80\\xa2 SC-05-2: Five DHS component\\xe2\\x80\\x99s service continuity plans were not consistently and/or adequately\\n tested, and individuals did not receive training on how to respond to emergency situations.\\n\\nRecommendations:\\n\\nWe recommend that the DHS Office of Chief Information Officer in coordination with the OCFO:\\n\\na) Develop and implement complete and current business continuity and system disaster recovery plans,\\n and\\nb) Perform component-specific and DHS-wide testing of key service continuity capabilities, and assess\\n the need to provide appropriate and timely emergency training.\\n\\nApplication Controls\\n\\nDuring FY2005, we noted several instances of weak access and segregation of duty controls associated\\nwith key DHS financial applications, such as a DHS component\\xe2\\x80\\x99s core financial application, as well as\\nprocurement and payable applications.",
"These weaknesses include weak or expired user passwords, user\\naccounts that were not kept current, and certain users with access privileges to certain key processes of an\\napplication. Many of these weaknesses were identified during our general control testing of access\\ncontrols and segregation of duties; however, since these same issues also impact controls over specific\\nkey financial applications, they are reported here as well.\\n\\nConditions noted regarding application controls at DHS and its components were:\\n\\n\\xe2\\x80\\xa2 APC-05-1: Instances of missing and weak user passwords on key application servers and\\n databases.\\n\\xe2\\x80\\xa2 APC-05-2: User account lists were not periodically reviewed for appropriateness, and inappropriate\\n authorizations and excessive access privileges for group user accounts were allowed.\\n\\xe2\\x80\\xa2 APC-05-3: Instances where individuals were able to perform incompatible functions, such as the\\n changing, testing, and implementing of software, without sufficient compensating controls in place.\\n\\nRecommendations:\\n\\nWe recommend that the DHS Office of Chief Information Officer in coordination with the OCFO:\\n\\na) Ensure that password controls meet DHS password requirements on all key financial systems;\\nb) Implement an account management certification process within all the components, to ensure the\\n periodic review of user accounts for appropriate access; and\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 6\\n\\x0c Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n c) Document the user responsibilities so that incompatible duties are consistently separated. If this is\\n not feasible given the smaller size of certain functions, then sufficient compensating controls, such as\\n periodic peer reviews, should be implemented.\\n\\n\\nMANAGEMENT COMMENTS AND OIG EVALUATION\\n\\nWe obtained written comments on a draft of this report from the DHS CIO.",
"Generally, the DHS CIO\\nagreed with all of the report\\xe2\\x80\\x99s findings and recommendations. However as noted in the summary section\\nof the status spreadsheet, components did not concur with ten (10) of the NFRs and the DHS CIO is\\ncurrently working to fully document all \\xe2\\x80\\x9cnon-concurs.\\xe2\\x80\\x9d We have incorporated the comments where\\nappropriate and included a copy of the comments at Appendix D.\\n\\n\\n\\nOIG Response\\n\\nWe accept the DHS CIO\\xe2\\x80\\x99s response to the recommendations in this report and are encouraged that the\\nDHS CIO will work with each DHS component to ensure that a Plan of Action and Milestones (POA&M)\\nis developed for each of the 88 NFRs.",
"We are also encouraged by the DHS CIO\\xe2\\x80\\x99s commitment to take\\ncorrective actions on these IT NFRs during the FY 2006 DHS Financial Statement Audit. However, the\\nDHS CIO\\xe2\\x80\\x99s response did not provide details on any planned corrective actions for each of the\\nrecommendations outlined in this report. KPMG will follow up on the corrective actions for these\\nrecommendations during the FY 2006 Financial Statement Audit.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 7\\n\\x0c Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\n Appendix A\\n\\nDescription of Key Financial Systems and IT Infrastructure within\\n the Scope of the FY 2005 DHS Financial Statement Audit\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 8\\n\\x0c Appendix A\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\nBelow is a description of significant DHS financial management systems and supporting IT\\ninfrastructure included in the scope of the financial statement audit for the twelve months ended\\nSeptember 30, 2005.\\n\\nUnited States Citizen and Immigration Services (USCIS)\\n\\nLocations of Audit: USCIS Headquarters in Washington, D.C., as well as offices in Texas, Vermont\\nand Nebraska.\\n\\nKey Systems Subject to Audit:\\n\\n\\xe2\\x80\\xa2 Federal Financial Management System (FFMS) \\xe2\\x80\\x93 The Immigration and Customs Enforcement\\n (ICE) component owns and operates FFMS.",
"ICE performs the financial reporting function for\\n USCIS, using FFMS per the shared services agreement with USCIS. FFMS is a commercial off-\\n the-shelf financial reporting system that was fully implemented in FY 2003. FFMS is the official\\n system of record and is built in Oracle 8i Relational Database Management System. It includes\\n the core system used by accountants, FFMS Desktop, which is used by average users, and a\\n National Finance Center payroll interface. FFMS supports all USCIS core financial processing.\\n FFMS uses a Standard General Ledger (SGL) for the accounting of agency financial transactions.\\n\\n\\xe2\\x80\\xa2 Claims 3 Local Area Network (LAN) \\xe2\\x80\\x93 Claims 3 LAN provides USCIS with a decentralized LAN\\n based system that supports the requirements of the Direct Mail Phase I and II, Immigration Act of\\n 1990 (IMMACT 90) and USCIS Forms Improvement projects. The Claims 3 LAN is located at\\n each of the service centers (Nebraska, California, Texas, Vermont, and the National Benefits\\n Center). The main purpose of Claims 3 is to enter and track immigration applications.\\n\\n\\xe2\\x80\\xa2 Claims 4 - The purpose of Claims 4 is to track and manage naturalization applications. Claims 4\\n resides on multiple platforms, including a Siemens E70 located in Dallas, Texas. Claims 4 data is\\n centrally stored within one Oracle Database. Software is developed and maintained in the Oracle\\n relational database (RDBMS) and Microsoft Visual Basic environments.\\n\\nImmigration and Customs Enforcement (ICE)\\n\\nLocations of Audit: ICE Headquarters in Washington, D.C., as well as offices in Texas, Vermont and\\nNebraska.\\n\\nKey System Subject to Audit:\\n\\n\\xe2\\x80\\xa2 Federal Financial Management System (FFMS) \\xe2\\x80\\x93 ICE owns and operates FFMS.",
"ICE performs\\n the financial reporting function for CIS, MGT, IAIP, and S&T using FFMS per the shared\\n services agreement these agencies have with ICE. FFMS is a commercial off-the-shelf financial\\n reporting system that was fully implemented in FY 2003. FFMS is the official system of record\\n and is built in Oracle 8i Relational Database Management System. It includes the core system\\n used by accountants, FFMS Desktop that is used by average users, and a National Finance Center\\n payroll interface. FFMS supports all USCIS/ICE core financial processing and uses a Standard\\n General Ledger (SGL) for the accounting of agency financial transactions.\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 9\\n\\x0c Appendix A\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\nUnited States Coast Guard\\n\\nLocations of Audit: Coast Guard Headquarters in Washington, DC; the Aviation Repair and Supply\\nCenter (ARSC) in Elizabeth City, North Carolina; ---------------------------------------------------- ---\\n--------------- ------------------------------------ -------------------------------------------- ----------------------\\n-------------------------------- ---------------- --------------\\n\\nKey Systems Subject to Audit:\\n\\n\\xe2\\x80\\xa2 Core Accounting System (CAS) \\xe2\\x80\\x93 CAS is the core accounting system that records financial\\n transactions and generates financial statements for the Coast Guard.",
"CAS is hosted at ---------- ,\\n the Coast Guard\\xe2\\x80\\x99s primary data center.\\n\\n\\xe2\\x80\\xa2 Financial Procurement Desktop (FPD) \\xe2\\x80\\x93 The FPD application used to create and post obligations\\n to the core accounting system. It allows users to enter funding, create PR\\xe2\\x80\\x99s, issue procurement\\n documents, perform system administration responsibilities, and reconcile weekly Program\\n Element Status (PES) reports.\\n\\n\\xe2\\x80\\xa2 Workflow Imaging Network System (WINS) - WINS is the document image processing system,\\n which is integrated with an Oracle Developer/2000 relational database. WINS allows electronic\\n data and scanned paper documents to be imaged and processed for data verification,\\n reconciliation and payment. WINS utilizes MarkView software to scan documents and to view\\n the images of scanned documents and to render images of electronic data received.\\n\\n\\xe2\\x80\\xa2 Naval Electronics Supply Support System (NESSS) \\xe2\\x80\\x93 Formerly named the Supply Center\\n Computer Replacement System (SCCR), NESSS is hosted at------- NESSS is the primary\\n financial application for the Engineering Logistics Command (ELC), the Supply Fund, and the\\n Yard fund.",
"Also housed at ----- is the Fleet Logistics System (FLS), a web-based application\\n designed to automate the management of Coast Guard vessel logistics by supporting the following\\n functions: configuration, maintenance, supply and finance. In addition, ----- is responsible for\\n CMPlus, the central repository for activities associated with maintaining Coast Guard assets at the\\n unit level.\\n\\nSeveral other key Coast Guard financial applications support military personnel and payroll, retired\\npay, and travel claims. These applications are hosted at the PSC, which was formerly known as the\\nHuman Resources Services and Information Center. These applications include the Personnel\\nManagement Information System (PMIS) and the Joint Uniform Military Pay System (JUMPS). Also\\nhoused at PSC is the PeopleSoft 8.3 Direct Access application, which is used by members for self-\\nservice functions, including updating and viewing personal information.\\n\\nIn addition, the Coast Guard maintains hosts on the Internet in thirteen Internet Protocol (IP) address\\nranges.",
"Hosts within these ranges support various Web based applications, e-mail servers, and File\\nTransfer Protocol (FTP) servers.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 10\\n\\x0c Appendix A\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\nUnited States Customs and Border Protection (CBP)\\n\\nLocations of Audit: ------- --------------------------------------------------------------- ---------------- -\\n----------------------------------------------------------------\\n\\nKey Systems Subject to Audit:\\nBelow is a description of significant CBP financial management systems and supporting IT\\ninfrastructure included in the scope of the September 30, 2005 CBP consolidated balance sheet audit.\\n\\n\\xe2\\x80\\xa2 --------------- ---------------- ---------------- ---------- -------- was decommissioned in FY 2005 and\\n replaced by SAP. It was CBP\\'s IBM --- ----- -- - -based financial management system that\\n supported primary financial accounting and reporting processes, and a number of additional\\n subsystems for specific operational and administrative management functions. The core system\\n consisted of general ledger, accounts receivable, disbursements/payables, purchasing, and budget\\n execution modules. ---------was hosted on a customized version of ---- --------------------- ---\\n --- ----- - ----- --------------------------------- ----- --------\\n\\n\\xe2\\x80\\xa2 ---------- ------- is a client/server-based financial management system that was implemented\\n beginning in FY 2004 to ultimately replace the ------- ---------------- ---------------- --- ----- ------ -\\n using a phased approach.",
"The ---------------------- ---- - -- - --- -- ------ was implemented and utilized\\n in FY 2004. In FY 2005, the Funds Management, Budget Control System, General Ledger,\\n Internal Orders, Sales and Distribution, Special Purpose Ledger, and Accounts Payable modules\\n were implemented.\\n\\n\\xe2\\x80\\xa2 --------------- - ---------------------------- -------- is a collection of mainframe-based applications\\n used to track, control, and process all commercial goods, conveyances and private aircraft\\n entering the United States territory, for the purpose of collecting import duties, fees, and taxes\\n owed the Federal government.\\n\\n\\xe2\\x80\\xa2 ---------------- ------------------------------------------------ \\xe2\\x80\\x93 Used for tracking seized assets, Customs\\n Forfeiture Fund, and fines & penalties.\\n\\nDHS Consolidated\\n\\nLocation of Audit: DHS Headquarters in Washington, D.C.\\n\\nKey Systems Subject to Audit:\\n\\n\\xe2\\x80\\xa2 Treasury Information Executive Repository (TIER) \\xe2\\x80\\x93 The system of record for the DHS\\n consolidated financial statements is TIER. The DHS components update TIER on a monthly\\n basis with data extracted from their core financial management systems. TIER subjects\\n component financial data to a series of validation and edit checks before it becomes part of the\\n system of record.",
"Data cannot be modified directly in TIER, but must be resubmitted as an input\\n file.\\n\\n\\xe2\\x80\\xa2 CFO Vision \\xe2\\x80\\x93 CFO Vision interfaces with TIER, and is used for the consolidation of the financial\\n data and the preparation of the DHS financial statements.\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 11\\n\\x0c Appendix A\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\nThe TIER and CFO Vision applications reside on the Department of Treasury\\xe2\\x80\\x99s (Treasury) network\\nand are administered by Treasury. Treasury is responsible for the administration of the TIER\\nWindows NT server, Oracle 8i database, and the TIER and CFO Visions applications. The DHS\\nOffice of Financial Management (OFM) is responsible for the administration of DHS user accounts\\nwithin the TIER and CFO Vision applications.\\n\\nLimited Scope\\n\\nLocation of Audit: We performed follow-up on a FY 2003 finding at the ---- - --------------------- ----\\n---------------- ------------------------------- ------- - ------ - ------\\n\\nSystem Subject to Audit:\\nThe Momentum Financial System is FLETC\\xe2\\x80\\x99s core computerized system that processes financial\\ndocuments generated by various FLETC divisions in support of procurement, payroll, budget and\\naccounting activities.\\n\\nFederal Emergency Management Agency (FEMA)\\n\\nLocations of Audit: FEMA Headquarters in Washington, D.C., and the------ - - ------------------------\\n------- -------- - ------------------------------ ----------------\\n\\nKey Systems Subject to Audit:\\n\\n\\xe2\\x80\\xa2 Integrated Financial Management Information System (IFMIS) \\xe2\\x80\\x93 IFMIS is the key financial\\n reporting system, and has several feeder subsystems (budget, procurement, accounting, and other\\n administrative processes and reporting).\\n\\n\\xe2\\x80\\xa2 National Emergency Management Information System (NEMIS) \\xe2\\x80\\x93 NEMIS is an integrated system\\n to provide FEMA, the states, and certain other federal agencies with automation to perform\\n disaster related operations.",
"NEMIS supports all phases of emergency management, and provides\\n financial related data to IFMIS via an automated interface.\\n\\n\\xe2\\x80\\xa2 Logistical Information Management System (LIMS III) \\xe2\\x80\\x93 LIMS III provides for material\\n management, maintenance, and logistics reporting.\\n\\n\\xe2\\x80\\xa2 National Flood Insurance Program System \\xe2\\x80\\x93 The system provides loss projections, recovery\\n rates, and, maintains customer records for the flood insurance program.\\n\\n\\xe2\\x80\\xa2 Quicktime - Time and Attendance Collection System \\xe2\\x80\\x93 A web-based system used to collect hours\\n worked and leave used by all employees in FEMA. The data collected is transmitted to the\\n National Finance Center for paycheck preparation.\\n\\nOffice of State and Local Government Coordination and Preparedness (SLGCP)\\n\\nLocation of Audit: SLGCP Headquarters in Washington, D.C.\\n\\nKey Systems Subject to Audit:\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 12\\n\\x0c Appendix A\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\nSLGCP\\xe2\\x80\\x99s IT platforms are hosted and supported by the Department of Justice\\xe2\\x80\\x99s Office of Justice\\nPrograms (OJP).",
"The following is a list of key financial related applications supporting SLGCP.\\n\\n\\xe2\\x80\\xa2 IFMIS (same application as FEMA\\xe2\\x80\\x99s, but hosted at OJP) \\xe2\\x80\\x93 IFMIS consists of five modules that\\n include: budget, cost posting, disbursement, general ledger, and accounts receivable. Users\\n access the system through individual workstations that are installed throughout SLGCP and OJP.\\n The current IFMIS version does not have the ability to produce external federal financial reports\\n (i.e., SF132 and SF133) and financial statements.",
"IFMIS was updated in February 2002 with the\\n version certified by the Joint Financial Management Improvement Program (JFMIP).\\n\\n\\xe2\\x80\\xa2 Grants Management System (GMS) \\xe2\\x80\\x93 GMS supports the SLGCP grant management process\\n involving the receipt of grant applications and grant processing activities. GMS is divided into\\n two logical elements. There is a grantee and an administration element within the system. The\\n grantee component provides the Internet interface and functionality required for all of the\\n grantees to submit grant applications on-line.",
"The second component, the administration\\n component, provides SLGCP/OJP personnel the tools required to store, process, track and\\n ultimately make decisions about the applications submitted by the grantee. This system does not\\n interface directly with IFMIS.\\n\\n\\xe2\\x80\\xa2 Line of Credit Electronic System (LOCES) \\xe2\\x80\\x93 The LOCES allows recipients of SLGCP funds to\\n electronically request payment from OJP on one day and receive a direct deposit to their bank for\\n the requested funds usually on the following day. Batch information containing draw down\\n transaction information from LOCES is transferred to IFMIS. The IFMIS system then interfaces\\n with Treasury to transfer payment information to Treasury, resulting in a disbursement of funds\\n to the grantee.\\n\\n\\xe2\\x80\\xa2 Paperless Request System (PAPRS) \\xe2\\x80\\x93 This system allows grantees to access their grant funds.\\n The system includes a front and back end application. The front-end application provides the\\n interface where grantees make their grant requests. The back end application is primarily used by\\n accountants and certifying officials. The back end application also interfaces with the IFMIS\\n application.",
"Batch information containing draw down transaction information from PAPRS is\\n interfaced with IFMIS. The IFMIS system then interfaces with Treasury to transfer payment\\n information to Treasury, resulting in a disbursement of funds to the grantee.\\n\\nTransportation Security Administration (TSA)\\n\\nLocations of Audit: TSA Headquarters in Washington, D.C. ----- - ----------------------------------------\\n--------------- ---------- TSA\\xe2\\x80\\x99s financial applications are hosted on the Coast Guard\\xe2\\x80\\x99s IT platforms.\\n\\nKey Systems Subject to Audit:\\nThe Coast Guard is a service provider for Transportation Security Administration (TSA) by\\nmaintaining the Core Accounting System. This application is housed at the ---------------- -------- -\\n----------------------------------------\\n\\n\\xe2\\x80\\xa2 Core Accounting System (CAS) \\xe2\\x80\\x93 CAS is the core accounting system that records financial\\n transactions and generates financial statements for TSA. CAS is hosted at ----------- the Coast\\n Guard\\xe2\\x80\\x99s primary data center.\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 13\\n\\x0c Appendix A\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\xe2\\x80\\xa2 Financial Procurement Desktop (FPD) \\xe2\\x80\\x93 The FPD application used to create and post obligations\\n to the core accounting system.",
"It allows users to enter funding, create PR\\xe2\\x80\\x99s, issue procurement\\n documents, perform system administration responsibilities, and reconcile weekly PES Reports.\\n\\n\\xe2\\x80\\xa2 Workflow Imaging Network System (WINS) - WINS is the document image processing system,\\n which is integrated with an Oracle Developer/2000 relational database. WINS allows electronic\\n data and scanned paper documents to be imaged and processed for data verification,\\n reconciliation and payment. WINS utilizes MarkView software to scan documents and to view\\n the images of scanned documents and to render images of electronic data received.\\n\\n\\xe2\\x80\\xa2 Consolidated Uniform Payroll System (CUPS) \\xe2\\x80\\x93 CUPS maintains TSA payroll data, calculates\\n pay, wages, tax information and maintains service history and separation records. CUPS\\n interfaces with the Integrated Personnel and Payroll System (IPPS), Little IPPS, CUPS National,\\n CPMIS, DELPHI, and also receives other data inputs. CUPS is a mainframe application.\\n\\n\\xe2\\x80\\xa2 Consolidated Personnel Management Information System (CPMIS) \\xe2\\x80\\x93 CPMIS is the DOT\\n personnel management system. The system processes and tracks personnel actions and employee\\n related data for TSA, including employee elections for the Thrift Savings Plan (TSP), life\\n insurance, and health insurance as well as training data and general employee information (i.e.\\n name, address, etc.).",
"CPMIS is also used to maintain information related to budget, training, civil\\n rights, labor relations and security. CPMIS is a mainframe application. CPMIS interfaces with\\n CUPS to allow CUPS to perform the calculation of pay, time and attendance reporting, leave\\n accounting, and wage and tax reporting. CUPS also uses the information received from CPMIS to\\n initiate payroll deductions for TSP, insurances, Combined Federal Campaign contributions, and\\n savings bonds.\\n\\n\\xe2\\x80\\xa2 Integrated Personnel And Payroll System (IPPS) \\xe2\\x80\\x93 IPPS processes requests for personnel action,\\n training enrollments, and time and attendance information. IPPS interfaces with CPMIS and\\n CUPS to receive time and attendance and payroll information. IPPS also interfaces with the IPPS\\n Management and Reporting (MIR) system.",
"MIR is a client/server system that provides reporting\\n capability through an Oracle database.\\n\\nTSA payroll, time and attendance, and HR moved to the ----------------------------------------- -----\\n-- -- ----------- ---------------------------------------- on August 22, 2005. For payroll, TSA will be using a\\nKronos system called WebTA, a web-based system, which will interface with the------- system. The\\nHRMaxEmpower system will be TSA\\xe2\\x80\\x99s new HR system. The HRMaxEmpower system will also\\ninterface with the ------ system.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 14\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\n Appendix B\\n\\nFY2005 Notice of IT Findings and Recommendations - Detail by\\n DHS Organizational Element\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 15\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\n Department of Homeland Security\\n FY2005 Information Technology\\nNotification of Findings and Recommendations \\xe2\\x80\\x93 Detail\\n\\n\\n United States Citizenship and Immigration Services\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 16\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Department of Homeland Security\\n FY2005 Information Technology\\n Notification of Findings and Recommendations \\xe2\\x80\\x93 Detail\\n\\n Citizenship and Immigration Services\\n\\n IT NFRs Which Contributed to the Overall DHS Material Weakness for Financial System\\n Security\\n\\n Significant Findings\\n Contributing to the\\n Overall DHS\\nNFR # Condition Recommendation New Repeat\\n Material Weakness\\n Issue Issue\\n for Financial\\n System Security\\n Allocate sufficient resources to\\n ensure that the proper\\n implementation policy\\n The site Certification and\\n requirements for all systems\\n Accreditation (C&A)\\n used to process, store, or\\n package for the California\\nUSCIS transmit classified or sensitive\\n Service Center, General X X\\n05-02 information to be accredited\\n Support System (GSS) -\\n every three years.",
"Also,\\n Local Area Network (LAN)\\n consider issuing interim\\n is outdated and has expired.\\n accreditations that represent the\\n managers\\xe2\\x80\\x99 explicit acceptance\\n of risks.\\n Allocate sufficient resources to\\n ensure that the proper\\n implementation policy\\n requirements for all systems\\n The C&A package for the used to process, store, or\\nUSCIS Texas Service Center transmit classified or sensitive\\n X X\\n05-03 (TSC) GSS-LAN is information to be accredited\\n outdated and has expired. every three years. Also,\\n consider issuing interim\\n accreditations that represent the\\n managers\\xe2\\x80\\x99 explicit acceptance\\n of risks.\\n Access control weaknesses Ensure that---- ------- -- system\\n such as account passwords are established and\\n management, password maintained in accordance with\\nUSCIS\\n length, and a lack of review DHS and Federal guidance and X X\\n05-04\\n over audit records were that warning banners are in\\n identified for the ------- - -- place when users logon to the\\n system. system.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 17\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Significant Findings\\n Contributing to the\\n Overall DHS\\nNFR # Condition Recommendation New Repeat\\n Material Weakness\\n Issue Issue\\n for Financial\\n System Security\\n A Novell NetWare server at Test and install vendor supplied\\n USCIS\\xe2\\x80\\x99 Texas Service patches in a timely manner and\\nUSCIS Center (TSC) was undertake frequent vulnerability\\n X X\\n05-05 identified as not having the scanning of all systems at TSC\\n correct vendor supplied to verify that required patches\\n patches installed.",
"have been installed.\\n A vulnerability assessment Ensure that the documented\\n over -- -- -- - ---at USCIS password policy is enforced on\\n TSC noted that multiple all systems and undertake\\nUSCIS local administrator frequent vulnerability scanning\\n X X\\n05-06 accounts had blank on all systems at the TSC to\\n passwords including verify that passwords have been\\n several accounts with assigned and implemented\\n supervisor level access.",
"correctly.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 18\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\n Department of Homeland Security\\n FY2005 Information Technology\\nNotification of Findings and Recommendations \\xe2\\x80\\x93 Detail\\n\\n\\n Immigration and Customs Enforcement\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 19\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Department of Homeland Security\\n FY2005 Information Technology\\n Notification of Findings and Recommendations \\xe2\\x80\\x93 Detail\\n\\n Immigration and Customs Enforcement\\n\\n Management Comment: IT Notice of Findings and Recommendations\\n\\n Management\\nNFR # Condition Recommendation New Repeat Comment to DHS-\\n Issue Issue CIO and CFO\\n ICE does not have\\n Document and implement\\n procedures in place to\\n policies and procedures for the\\n periodically review --- -----\\n periodic review of --- ---- user\\nICE 05- ------ ----- --- - ---- ----\\n accounts, and ensure X X\\n 07 ----------------- - user access\\n administrative personnel\\n lists and could not provide\\n periodically perform reviews of\\n a list of all authorized\\n ------- user accounts.\\n ------- users upon request.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 20\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n Department of Homeland Security\\n FY2005 Information Technology\\nNotification of Findings and Recommendations \\xe2\\x80\\x93 Detail\\n\\n\\n Customs and Border Protection\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 21\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Department of Homeland Security\\n FY2005 Information Technology\\n Notification of Findings and Recommendations \\xe2\\x80\\x93 Detail\\n\\n Customs and Border Protection\\n\\n Significant IT NFRs Which Contributed to the Overall DHS Material Weakness for\\n Financial System Security\\n\\n Significant Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n Remove unnecessary\\n The Top Secret mainframe\\n central security\\n account administration on\\n administrator- ------\\n the---------------------- ------\\n privileges and accounts or\\n ------ -- --------- had several\\nCBP-IT- alternatively continue\\n weaknesses over X X\\n 05-02 implementation of a --- ---\\n unauthorized access to\\n ------ ----------- -- for use by\\n accounts -------------- - --\\n authorized individuals\\n -- --- ---- and inactive\\n during pre-determined\\n accounts.\\n circumstances.\\n Develop enterprise-wide\\n solutions for improving\\n network and host-based\\n system configuration\\n design(s), consider the use\\n of security management\\n monitoring tools to prevent\\n possible intrusions, proceed\\n Improvements are needed with the implementation of\\n in system logical access -- ------ ---- - - - - -- - --------\\nCBP-IT-\\n controls over network provide more robust system X X\\n 05-09\\n assets affecting management security\\n - ------- -- ------- ------ --- controls standards for\\n Windows-based production\\n servers, and consider the\\n development of a\\n compliance level policy for\\n adherence to CBP\\n password management\\n policies at the - - -- ---\\n -- - -- -------- --\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 22\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Significant Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n Perform a formal review of\\n all personnel that have\\n CBP management did not\\n access to the --------- -----\\n adequately implement\\n ---- --- to determine those\\n procedures for restricting\\n that do not have a formal\\n access to the data center\\nCBP-IT- user access form in place,\\n located in---------- and\\n05-14 establish a formal user X X\\n several terminated\\n access form, and promptly\\n employees did not have\\n remove physical access\\n their badges deactivated in\\n rights to the -------- facility\\n a timely manner.\\n when an employee is\\n terminated.\\n Develop a formally\\n Eighteen (18) ----- documented process for\\nCBP-IT- ------ ---- -- were found with granting normal and\\n X X\\n 05-15 access to the production emergency access for\\n environment.",
"------ ---- -- to the - -- -\\n production environment.\\n Perform a formal analysis\\n CBP has not configured\\n of the company code\\nCBP-IT- their version of---- -- to\\n setting to determine if it\\n05-17 include a company code X X\\n should be set to\\n setting of \"productive. \"\\n \\xe2\\x80\\x9cproductive\\xe2\\x80\\x9d.\\n Ensure that the assignment\\n of sensitive functions and\\n high-risk combinations of\\n functions to non-\\n supervisory users is based\\n Excessive sensitive\\n on a documented business\\nCBP-IT- functions and high-risk\\n need and approved by a X X\\n 05-18 combinations have been\\n supervisory official.\\n assigned to ---- -- users.\\n Exceptions from guidance\\n provided by the\\n memorandum should be\\n formally approved and\\n documented\\n Delete the accounts of any\\n confirmed terminated\\n employees, and disable\\nCBP-IT- Separated employees with\\n user accounts of separated X X\\n 05-19 active ------ accounts.\\n employees and contractors\\n as stated in CBP and\\n Federal guidance.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 23\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Significant Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n Access to the --------- ---\\n Recertify users with access\\n -- -- --- -- ------ ---- --- --\\nCBP-IT- -- ------- - - --- -----------and\\n --- ----- --------- -related X X\\n 05-28 document the evidence of\\n dataset and-- - -- ---- -- ---\\n the recertification.\\n ---- is excessive.\\n Recertify users with access\\n The number of users with to Top Secret Audit,\\nCBP-IT- access to Top Secret Audit, Recovery, and Backup\\n X X\\n 05-30 Recovery, and Backup datasets and document\\n datasets is excessive.",
"evidence of the\\n recertification.\\n\\n\\n Remaining IT NFRs Which Contributed to the Overall DHS Material Weakness for\\n Financial System Security\\n\\n\\n Remaining Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n Coordinate with each\\n affected field office to\\n either remove conflicting\\n roles or sign a waiver to\\n Numerous-- -- -- user IDs\\nCBP-IT- accept responsibility for\\n were identified as having X X\\n 05-01 associated risks and\\n segregation of duties issues.\\n continue to prevent new\\n IDs with segregation of\\n duties conflict from being\\n created.\\n After the re-organization of\\n the Office of Information\\n Ensure that security\\n Technology (OIT), security\\nCBP-IT- administration functions\\n administration functions at\\n05-03 remain independent of X X\\n the------- are not\\n operations functions.\\n independent of the\\n operations function.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 24\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Remaining Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n Develop a process to\\n ensure supervisory review\\n of ---- - overrides and\\n ensure that the new\\n Certain controls can be --- - -- - --- ---- ------------\\nCBP-IT-\\n overridden in ---- -- without --- -- -- --- --- - ---- - - X X\\n 05-04\\n supervisory approval.",
"system has the appropriate\\n requirements for these\\n controls and that the\\n controls are applied prior to\\n implementation.\\n Formally establish a\\n process for granting --- --\\n CBP management has not access to sensitive\\n developed formal technical team roles that\\nCBP-IT- procedures for granting include procedures for\\n05-05 access to sensitive------ documenting authorization X X\\n Technical Team member requests, identifying roles\\n roles. to be granted, and\\n recertification of user roles\\n within ----- .\\n The -------- --------- ---- --\\n Update--- --------- - COOP\\n ----------- continuity of\\n with the most recent FY\\n operations plan (COOP) is\\n 2004 test results and re-\\n not updated to reflect the\\n evaluate the COOP for\\nCBP-IT- results of FY 2004 testing,\\n overall contingency\\n05-06 and the upgrade of their X X\\n planning procedures on an\\n financial system from--------\\n annual basis and in the\\n -- -- --- -- ------ - --------- --\\n event of a major system\\n --- ----- ------- - - mainframe\\n change or upgrade.\\n to ------\\n CBP management has not\\n consistently applied the Consistently apply the\\nCBP-IT- requirement for initial requirements for initial and\\n05-08 security awareness training refresher security X X\\n for CBP employees and awareness training,\\n contractors.\\n Continue to review the\\n ------ security audit log\\nCBP-IT- audit logs daily, maintain\\n reviews not evidenced for\\n05-10 documented evidence, and X X\\n the majority of FY 2005.\\n train backup personnel.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 25\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Remaining Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n Complete efforts to identify\\n CBP ----- Administrator - ------ - - --- -- -- -- --\\n staff have not documented connections that are\\nCBP-IT- Interconnection Security considered \\xe2\\x80\\x9clegacy\\xe2\\x80\\x9d\\n05-11 Agreements (ISA) for all connections as well as X X\\n entities that connect with connections with ----- and\\n ------ formally establish ISAs\\n with these entities.\\n Formally update the\\n alternate processing site\\n CBP alternate processing\\n agreement to accurately\\n site agreement not\\nCBP-IT- reflect the current hardware\\n finalized.",
"Priority of\\n05-12 and support that will be X X\\n service provision not in\\n required of the alternate\\n place.\\n processing site vendor in\\n the event of an emergency.\\n Formalize the process to\\n No formal process to confirm or enforce\\n confirm or enforce compliance with the ---- --\\nCBP-IT-\\n compliance with the ---- -- recertification process at\\n05-13 X X\\n ----------------- ---------------- the field sites and\\n ----- ------- document all\\n recertifications.\\n Develop a process to\\n identify the workstations\\n that have yet to install the\\n The incident handling and ---- - ----- -- , continue to\\n response capability needs test and implement a\\nCBP-IT- improvement regarding standard real-time\\n05-16 incident detection and automated reporting X X\\n initiation, response, process, and develop a\\n recovery, and reporting. consistent process to\\n respond to system flaw\\n notifications and track\\n reported security incidents.\\n Formally document test\\n CBP does not document\\n plans, test cases, and test\\n changes to the ----- system\\nCBP-IT- results for all - -- -- changes,\\n including test plans, test\\n05-20 and business and customer X X\\n cases, impact analysis, and\\n impact analysis for ------\\n test results.\\n changes requests.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 26\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Remaining Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n Perform a formally\\n documented assessment of\\n CBP management has not the tables that should be\\nCBP-IT-\\n activated logging for logged by ------ and\\n05-21 X X\\n critical tables within ----- .",
"complete the\\n implementation of table\\n logging within ------\\n CBP management has not\\n completed a Certification\\n Complete a security control\\n and Accreditation package\\n assessment for all -------\\nCBP-IT- for all components of the\\n LAN components and a\\n05-22 ------ LAN, including no X X\\n risk assessment for all\\n security control assessment\\n ------ LAN components.\\n and no formal risk\\n assessment conducted.\\n Consider reviewing the\\n sensitivity of applications\\n and based upon results,\\n perform separate C&As\\n where appropriate.\\n Lack of evaluation of the Consider establishing a\\n need for a separate C&As relationship of identified\\n for applications included in risks to defined security\\nCBP-IT-\\n the Administrative requirements in ------\\n05-23 X X\\n Applications C&A, and the incorporate a risk-based\\n improvements needed in approach for any re-\\n risk assessment guidance. certification efforts\\n performed, and consider\\n development of definitive\\n guidance for risk\\n assessment and security\\n plan criteria\\n Develop a formal\\n centralized process for\\n tracking the termination of\\n CBP does not maintain a contract personnel,\\nCBP-IT- centralized listing of immediately deactivating\\n05-24 separated contract systems access of X X\\n personnel.",
"terminated contractors, and\\n periodically assessment of\\n contractor access to CBP\\n systems.\\n Change the setting ------- --\\n ----- idle session lock ----------- - ------ to\\nCBP-IT-\\n inconsistent with CBP disconnect idle sessions\\n05-25 X X\\n policy. after 20 minutes of\\n inactivity.\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 27\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Remaining Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n Continue to review and\\n deactivate inactive\\n No procedures to detect and accounts on a monthly\\nCBP-IT-\\n deactivate inactive ----- basis and implement an\\n05-26 X X\\n users. automated mechanism to\\n detect and deactivate\\n inactive accounts\\n Virtual Private Network Continue to use the official\\n (VPN) access authorization form for new\\nCBP-IT- authorizations not VPN users and formally\\n05-27 documented and VPN recertify all VPN employee X X\\n accounts are not accounts on a periodic\\n periodically recertified.",
"basis and document results.\\n Document that access to\\n CBP management did not the --- -- - - - ------- --- - ---\\n provide information as to - -- -- (or equivalent) are\\nCBP-IT-\\n whether --- -- ---- ------- -- properly segregated and\\n05-29 X X\\n ---- - - - -- -- are perform a review of current\\n appropriately segregated. granted accesses for\\n appropriateness.\\n Develop a formal process\\n Weaknesses in the C&A to ensure that all non-\\nCBP-IT- process at field sites recommend field sites\\n05-31 including several missing submit a NIST 800-26 X X\\n site assessments. LAN self-assessment in a\\n timely manner.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 28\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\n Department of Homeland Security\\n FY2005 Information Technology\\nNotification of Findings and Recommendations \\xe2\\x80\\x93 Detail\\n\\n\\n United States Coast Guard\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 29\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Department of Homeland Security\\n FY2005 Information Technology\\n Notification of Findings and Recommendations - Detail\\n United States Coast Guard\\n\\n Significant IT NFRs Which Contributed to the Overall DHS Material Weakness for\\n Financial System Security\\n\\n Significant Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n Complete the BRP as\\n planned, store a finalized\\n The ----- ----------------\\n copy off-site, train\\nCG-IT- ---- -- - ----- - has not\\n personnel in their assigned X X\\n05-001 completed a Business\\n roles and responsibilities,\\n Recovery Plan (BRP).\\n test the BRP and document\\n lessons learned.\\n Establish a testing detail\\n baseline that defines the\\n standard components that a\\n ----- has not completed a developer should document\\n testing baseline and users in Profession Version\\nCG-IT-\\n were able to change their Control Software (PVCS) X X\\n05-002\\n privileges to gain access to Tracker, and enforce the\\n production.",
"procedure to implement\\n testing as a component of\\n change implementation.\\n\\n Access control weaknesses\\n exist in the------ Document and implement\\n ------ ----- ----- - - - ---- RACF account\\n ----------- - - -- ---------- management policies and\\nCG-IT- ------- - - including user procedures, perform\\n X X\\n05-003 account creation and periodic reviews of ---- ---\\n termination procedures are accounts, and routinely\\n not documented, and a monitor audit logs for\\n recertification of accounts unusual activity.\\n does not take place.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 30\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Significant Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n Coast Guard has not Complete the restoration of\\n completed the process of background investigation\\n filing the personal records records not included during\\n that were recovered and the migration of records\\n recreating the records that from the Department of\\n were not found during the Transportation to DHS.\\nCG-IT- migration of records from Work with DHS to finalize\\n X X\\n05-006 the Department of policy for conducting\\n Transportation to DHS. contractor background\\n Comprehensive policies investigations and\\n for conducting background document Coast Guard-\\n investigations for specific procedures\\n contractors have not been compliant with new DHS\\n finalized.",
"requirements.\\n The --------------- system Replace ----------with the\\n does not require strong Coast Guard Direct Access\\nCG-IT-\\n passwords and WANG is HRMS 8.9 upgrade, which X X\\n05-008\\n still being operated will address vendor support\\n without vendor support.",
"and password strength.\\n Service continuity\\n weaknesses for the\\n -- --------- - -- - ---- ----- - --- , Periodically reassess and,\\n ----- , and ----- , including as appropriate, revise the\\n outdated Business -------- -- BCCP, develop\\n Continuity Contingency disaster recovery\\nCG-IT-\\n Plan (BCCP), lack of procedures for ---- - and X X\\n05-009\\n disaster recovery ----- , complete the\\n procedure details, an off- relocation of the off-site\\n site storage location in storage location, and\\n close proximity to the data periodically test the BCCP.\\n center, and lack of BCCP\\n testing exist.\\n -------- -- Unix change\\n control process supporting\\n Develop and enforce\\n ----- and --- -- have\\n configuration management\\n weaknesses including:\\n procedures for developing\\n procedures in support of\\n test plans, documenting test\\n the finalized CM policy\\nCG-IT- results, implementing\\n are not developed, X X\\n05-010 software, management\\n documentation supporting\\n approval of system\\n risk assessments is not\\n changes, and retention of all\\n maintained, formal change\\n risk assessments and testing\\n requests are not used, and\\n documentation.\\n test plans and test results\\n are not documented.\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 31\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Significant Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n ------ - -- does not have\\n Develop formal entity wide\\n documented procedures\\n procedures for granting,\\n for controlling the\\n monitoring, and terminating\\nCG IT processes associated with\\n ----- user accounts and the X X\\n05-011 the granting, monitoring,\\n periodic revalidation of\\n and termination of user\\n ----- user profiles by local\\n accounts within FPD have\\n security administrators.\\n not been documented.\\n -------- -- has not\\n developed documented\\n policies and procedures to Develop policies and\\n restrict access to the UNIX procedures for restricting\\n operating system and for and monitoring access to\\nCG-IT- monitoring access, and the UNIX operating system\\n X X\\n05-012 periodic reviews are not for ---- - and - - -- and\\n performed to determine if perform periodic reviews to\\n monitoring of the UNIX ensure the effectiveness of\\n operating system for---- - the monitoring process.\\n and ----- is functioning as\\n intended.\\n ------------- Certification\\n and Accreditations (C&A)\\n Update and complete the\\n for - - -- ----- -- --- -- --- ---\\n C&A process for -----\\n were not complete.\\nCG-IT- -------- - -- -------- to include\\n Specifically, security X X\\n05-013 the completion of ST&Es\\n testing and evaluations\\n and the update of security\\n (ST&E) were incomplete\\n plans.\\n and security plans had not\\n been updated.\\n -------- -- has not\\n implemented formal Develop procedures for the\\n procedures for the periodic regular and periodic\\n management review and monitoring of high-level\\nCG-IT-\\n monitoring activities of ---- - database administrator X X\\n05-015\\n ---- - database and system administrator\\n administrators and system activities, and the Oracle\\n administrators, or the SYS account.\\n Oracle SYS accounts.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 32\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Significant Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n Implement the individual\\n fixes noted in the NFR for\\n AppDetective identified vulnerabilities identified\\n vulnerabilities on the ----- and institute a formal\\nCG-IT- database including weak process for performing\\n X X\\n05-016 passwords, excessive periodic scans of the\\n access permissions and ------ - -- network\\n missing patches.",
"environment, including the\\n financial processing\\n environment.\\n Implement the individual\\n fixes noted in the NFR for\\n vulnerabilities identified\\n The Enterprise Security\\n and institute a formal\\n Management (ESM) tool\\nCG-IT- process for performing\\n identified configuration X X\\n05-017 periodic scans of the\\n and account management\\n ------ - -- network\\n weaknesses on --- --\\n environment, including the\\n financial processing\\n environment.\\n ------ - -- management\\n Internet Security Systems\\n implemented immediate\\nCG-IT- Internet Scanner identified\\n corrective action by X X\\n05-018 three hosts that were\\n removing the BrightStor\\n missing patches.\\n agent from the three hosts.\\n Implement a system change\\n request to automatically\\n Undelivered Orders \\xe2\\x80\\x93 reestablish funds as\\n Transaction Codes: A obligated ------- -------------\\n report allowing users to ----- ---- -- - - ----- - -- are\\nCG-IT-\\n review and manually re- used, provide training to X X\\n05-021\\n establish obligations was users, and require users to\\n not implemented as well as conduct reviews to\\n the manual review process.",
"determine when re-\\n obligation to the associated\\n UDO balances are required.\\n Disaster recovery plans for\\n the Operations Service\\n Complete disaster recovery\\n Center (OSC) Gold\\n planning for the-----------\\n Business Systems, which\\nCG-IT- ------- - Gold Business\\n include the ----------- ------ X X\\n05-022 Systems and periodically\\n -------- ------ ) and --- ---\\n test disaster recovery and\\n ---- -- --- - ----- ------\\n contingency plans.\\n --------- --------- ------------\\n have not been completed.\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 33\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Significant Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n ----- has not completed a Fully implement planned\\n security plan for CMPlus corrective actions to\\nCG-IT-\\n 5. complete the security plan X X\\n05-023\\n for CMPlus during the\\n system\\xe2\\x80\\x99s C&A process.\\n ESM identified high and\\n medium level\\n Implement the individual\\n vulnerabilities on the\\n fixes noted in the NFR for\\n ------- -- production\\n vulnerabilities identified\\nCG-IT- database over account\\n and institute a formal X X\\n05-024 management,\\n process for performing\\n configuration\\n periodic scans of the -----\\n management, password\\n network environment.\\n management, and patch\\n management.\\n AppDetective found\\n vulnerabilities on the Implement the individual\\n ------- - production fixes noted in the NFR for\\n database over audit vulnerabilities identified\\nCG-IT-\\n management, and institute a formal X X\\n05-025\\n configuration process for performing\\n management, password periodic scans of the -----\\n management, and patch network environment.\\n management.\\n Complete planned\\n corrective actions for the\\n ------ has initiated required redesign of CMPlus/FLS\\n changes on the application data interfaces to include\\n code on the server side. functionality to\\nCG-IT-\\n However the required communicate data interface X X\\n05-026\\n update to the user errors back to the CMPlus\\n workstations has not been unit/user by deploying the\\n completed.",
"patch to implement the\\n required fix to users on\\n client workstations.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 34\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Significant Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n Implement and enforce\\n procedures for obtaining\\n system security information\\n Implementation and\\n from ISSOs. Coast Guard\\n management oversight of\\n management should ensure\\n Coast Guard\\xe2\\x80\\x99s information\\n the implementation of\\n security program remains\\n corrective actions to\\n fragmented including\\n improve system security\\n communication and\\nCG IT- policies and procedures\\n enforcement of procedures X X\\n05-027 regarding the C&A process,\\n for security information\\n patch management, account\\n with the ISSOs, enforce\\n management, monitoring of\\n strong passwords and keep\\n system software, and\\n system security policies\\n contingency planning.\\n and procedures and C&A\\n Also, implement a\\n packages.\\n background investigation\\n process for CG contractors\\n and hire needed personnel.\\n\\n\\n Remaining IT NFRs Which Contributed to the Overall DHS Material Weakness for\\n Financial System Security\\n\\n Remaining Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n User account maintenance Document and implement\\n procedures for ----- civilian account maintenance\\n personnel were not policies and procedures\\nCG-IT- documented and access lists policies, perform periodic\\n05-004 were not reviewed account reviews, and X X\\n periodically and audit trails regularly monitor Direct\\n are not reviewed on a Access audit trails.\\n regular basis.\\n The------ General Support Complete the C&A\\nCG-IT- System (GSS) Certification package for the GSS in\\n05-005 and Accreditation (C&A) compliance with DHS and X X\\n not completed.",
"Federal guidance.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 35\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Remaining Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n Retain, as evidence,\\n Results of reviews over\\n documentation of regular\\n ------ user access were not\\n reviews performed of the\\nCG-IT- available and\\n Windows 2000 CG ------\\n05-014 documentation of periodic X X\\n directory to ensure that the\\n reviews was not on file at\\n list of users and\\n -------- --\\n permissions is accurate.\\n Develop and implement\\n Formal procedures formal data center access\\n regarding access to the procedures and a\\nCG-IT-\\n ------ - -- data center have formalized method to track\\n05-019 X X\\n not been established and information system-related\\n implemented.",
"items entering and exiting\\n the facility.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 36\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n Department of Homeland Security\\n FY2005 Information Technology\\nNotification of Findings and Recommendations - Detail\\n\\n\\n Federal Emergency Management Agency\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 37\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Department of Homeland Security\\n FY2005 Information Technology\\n Notification of Findings and Recommendations - Detail\\n\\n Federal Emergency Management Agency (FEMA)\\n\\n Significant IT NFRs Which Contributed to the Overall DHS Material Weakness for\\n Financial System Security\\n\\n Significant Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness\\n for Financial System\\n Security\\n Complete the C&A\\n Three systems do not have accreditation packages for\\n a Certification and FEMA.gov and----- -\\n Accreditation (C&A). adequately document the\\n Also, the ----- -- security results of the--------- ST&E,\\n EPR- test and evaluation (ST&E) complete documentation for\\nIT-05- did not provide adequate the ST&Es performed on X X\\n 05 documentation of results, ------------- -- ------- ------- ----\\n and six systems with ------ -- and -- - - ---- -- -- and\\n completed C&As did not re-perform the C&A process\\n include ST&E for ------ -- due to the major\\n documentation. changes the system has\\n undergone.\\n The ----- -- Contingency\\n Perform a full test of the\\n Plan needs to adequately\\n -- --- - Contingency Plan\\n test the IT components of\\n when the ----- ----- ------------\\n the system/process and the\\n --- -- -- is prepared to be the\\n EPR- ------ -- Contingency Plan\\n functional alternate site for\\nIT-05- needs to be completed to X X\\n Mt.",
"Weather and update the\\n 08 take into account the new\\n ------ -- Contingency Plan\\n Linux Operating system\\n once the ------ --- migration is\\n and Small Business\\n complete. Conduct annual\\n Administration web\\n contingency plan testing.\\n interface.\\n Update the FEMA continuity\\n FEMA has not prioritized\\n of operations plan to\\n its critical data and\\n incorporate clearly the order\\n operations, emergency\\n of the 12 critical IT systems\\n EPR- processing priorities and\\n that would be brought back\\nIT-05- procedures have not been X X\\n online at the -------- -------\\n 09 documented, and all\\n -------------- alternate\\n resources supporting\\n processing site in the event of\\n critical operations have not\\n a disaster associated with ----\\n been identified.\\n --------- -\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 38\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Significant Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness\\n for Financial System\\n Security\\n ESM identified high and\\n medium level\\n Implement the individual fixes\\n vulnerabilities on -----\\n listed in the NFR for the\\n EPR- -- ----- --- that supports the\\n vulnerabilities identified and\\nIT-05- -------- application X X\\n undertake an annual\\n 10 including: account\\n vulnerability assessment as\\n management, configuration\\n prescribed in DHS guidance.\\n management and patch\\n management.\\n Implement the DHS password\\n policy on all databases and\\n EPR- Two Oracle databases were consider the implementation\\nIT-05- identified with weak/default of an automated password X X\\n 11 passwords.",
"checking tool to help ensure\\n that a strong password policy\\n has been implemented\\n Internet Scanner identified Implement the individual fixes\\n high risk vulnerabilities on listed in the NFR for the\\n EPR-\\n 6 hosts in the following vulnerabilities identified and\\nIT-05- X X\\n areas: configuration undertake an annual\\n 12\\n management, and password vulnerability assessment as\\n management. prescribed in DHS guidance.\\n AppDetective identified\\n high risk vulnerabilities in Implement the individual fixes\\n the following areas on the listed in the NFR for the\\n EPR-\\n -------- database: account vulnerabilities identified and\\nIT-05- X X\\n management, configuration undertake an annual\\n 13\\n management, password vulnerability assessment as\\n management, and patch prescribed in DHS guidance.\\n management.\\n Develop and implement a\\n solution to limit excessive\\n access to the -------- account\\n mapping function, reevaluate\\n EPR- Access to the Account and limit access rights to those\\nIT-05- Mapping Tables in ----- -- with a business need to access X X\\n 14 is excessive.",
"the -- -- -- account mapping\\n functions, and routinely\\n monitor the account mapping\\n functions and related changes\\n made.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 39\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Remaining IT NFRs Which Contributed to the Overall DHS Material Weakness for\\n Financial System Security\\n\\n Remaining Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n Policies and procedures do\\n not exist to perform\\n Develop and implement\\n periodic review of\\nEPR-IT- procedures regarding\\n --- - ---- -- --- -- --- -\\n05-01 periodic review of access X X\\n -- - --------- -- - - -- --- -- ---\\n lists.\\n ------ -- ---------- user access\\n lists.\\n ---- ----- ---- ---------\\n -- - --------- -- - - -- --- -- ---\\n ------ -- ------------ access Disable users\\xe2\\x80\\x99 ability to\\n controls suspend a user\\xe2\\x80\\x99s change the inactivity\\n session after fifteen minutes threshold or disable the\\n of inactivity. However, the password protected\\nEPR-IT-\\n option is not deactivated so screensaver and ensure that\\n05-02 X X\\n users have the ability to -- - --- - users are locked\\n deactivate the screensaver.",
"out of the system after\\n Furthermore, users are not three invalid logon\\n locked out after three attempts.\\n unsuccessful logon\\n attempts.\\n Transfer all critical\\n equipment out of the room\\n in --- --- - ------ to an\\n alternate secure site with\\n capabilities to house IT\\n The ----------- ---------\\n equipment on raised floors\\n ---- ---- had multiple\\n and upon implementation\\nEPR-IT- weaknesses including lack\\n of the --- --- - --------------\\n05-03 of raised floors, and IFMIS X X\\n ---------- \\xe2\\x80\\x9creal-time\\xe2\\x80\\x9d back-\\n production and test servers\\n up facility, create\\n in close proximity.\\n redundant servers at the\\n ----- ----- ----- ---- - -- - -- --\\n for the two -- -- -- servers\\n located at the ------- ------ -\\n ---- --------- ---- ------- - -- --\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 40\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Remaining Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n Ensure that FEMA\\n Instruction 1540.3 is\\n The employee termination\\n finalized, signed by the\\n process for removing\\n Under Secretary,\\n system access policies or\\n promulgated to all EP&R\\n processes for ensuring that\\n employees, and enforced\\nEPR-IT- all general support system\\n and per the instruction\\n05-04 and application access, X X\\n perform a review of\\n including -- - -- -- , is\\n authorized accounts on a\\n removed in a timely manner\\n semi-annual basis and\\n for the separated employees\\n remove terminated\\n is in draft form.\\n employees\\xe2\\x80\\x99 access to all\\n systems.\\n Complete the\\n Password protected\\n implementation of ------ --\\n screensaver properties are\\n ----------- and disable the\\nEPR-IT- not disabled. Therefore, the\\n user\\xe2\\x80\\x99s ability to change the\\n05-06 current method of X X\\n inactivity threshold or\\n distributing of -- --- --\\n disable the password\\n passwords is not sufficient.\\n protected screensaver.\\n Enhance system\\n documentation supporting\\n Insufficient documentation the description of the\\n exists to fully explain -------- user functions, with\\nEPR-IT- ----- -- functions and user their associated system\\n05-07 access capabilities capabilities and develop X X\\n associated with those and implement procedures\\n functions.",
"to update the\\n documentation as functions\\n are added or modified.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 41\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\n Department of Homeland Security\\n FY2005 Information Technology\\nNotification of Findings and Recommendations \\xe2\\x80\\x93 Detail\\n\\n\\n Consolidated\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 42\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Department of Homeland Security\\n FY2005 Information Technology\\n Notification of Findings and Recommendations \\xe2\\x80\\x93 Detail\\n\\n Consolidated\\n\\n Significant IT NFRs Which Contributed to the Overall DHS Material Weakness for\\n Financial System Security\\n\\n Significant Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n Ensure that - ---- user\\n DHS administrators do access is only granted upon\\n not consistently require completion of the TIER new\\nCONS- new users to complete user access request form and\\nIT-05- the ------ new user evidence of supervisory X X\\n 02 access form before authorization. In addition,\\n granting access to the access request forms\\n ------ .",
"should be retained for at\\n least one year.\\n No policies and\\n procedures are in place Develop and implement\\n to periodically review policies and procedures for\\n ------- user access lists the periodic review of ------\\n to determine if access is access lists and develop and\\nCONS-\\n still needed and a implement policies and\\nIT-05- X X\\n documented process has procedures to promptly\\n 03\\n not been established to notify the -- ----\\n notify-------- administrators of the\\n administrators of termination or transfer of\\n terminated or personnel with access.\\n transferred personnel.\\n Develop and implement a\\n Informal processes are detailed SDLC or\\n followed for making configuration management\\n changes to ------ -------- procedures for performing\\nCONS-\\n and -------- ----- does changes over ----------\\nIT-05- X X\\n not have a version -- ----- template process and\\n 04\\n manager tool for implement a version\\n template changes made manager tool in order to\\n to the application.",
"maintain previous versions\\n of-- - -- --- --- - reports.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 43\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Significant Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n ------ configuration\\n management controls\\n Improve configuration\\n can be improved\\n management controls,\\n including lead\\n ensure adherence with the\\n developers that have\\n Department of Treasury\\n access to production,\\n SCM and ASSC SDLC\\n segregation of duties\\nCONS- Workflow and Processes\\n issues exist for system\\nIT-05- Handbook throughout DHS X X\\n changes made outside\\n 05 as they relate to opening an\\n of the schedule ------\\n SCR, and maintain test\\n quarterly releases, all\\n documentation for changes\\n system change requests\\n implemented outside of the\\n (SCR) are not\\n scheduled - -- -- quarterly\\n documented, and test\\n releases.\\n documentation is not\\n maintained.\\n Implement recommended\\n Discrepancies exist actions in order to make the\\n between the DHS analytic report code,\\nCONS-\\n Performance and equations, and PAR guide\\nIT-05- X X\\n Accountability Report consistent and develop and\\n 06\\n (PAR) Guidance and implement a configuration\\n the Analytical Report.",
"management process over\\n analytic report changes.\\n Discrepancies Exist\\n Implement changes to the\\n Between the United\\n DHS SGL normal balance\\n States Standard General\\n accounts for compliance\\n Ledger (USSGL) and\\nCONS- with the USSGL and\\n the DHS Standard\\nIT-05- develop a procedure to X X\\n General Ledger (DHS\\n 07 verify the abnormal balance\\n SGL) account\\n report logic after any\\n classifications used to\\n changes in the DHS SGL or\\n populate the Abnormal\\n USSGL.\\n Balances Report.\\n No documented\\n procedures are in place\\n for DHS components to\\n Document and implement\\n perform a formal\\n procedures for DHS\\nCONS- review, by a separate\\n components to perform a\\nIT-05- approving individual, of X X\\n formal review of financial\\n 08 financial data before\\n data before moving it into\\n moving the - ---- file\\n the ------ Repository.\\n from the Holding Area\\n into the -------\\n Repository.\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 44\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Significant Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n The DHS Chief Information\\n Lack of compliance\\n Officer (CIO), in\\n with FISMA in the\\n coordination with the DHS\\n areas of access controls,\\n Office of the Chief Financial\\n entity-wide security\\n Officer (OCFO) and other\\n program planning and\\nCONS- DHS functional leaders\\n management,\\nIT-05- should ensure further X X\\n application software\\n 09 emphasis on the monitoring\\n development and\\n and enforcement of policies\\n change control, system\\n and procedures through the\\n software, segregation of\\n performance of periodic\\n duties, and service\\n security control assessments\\n continuity.\\n and audits.\\n\\n\\n Remaining IT NFRs Which Contributed to the Overall DHS Material Weakness for\\n Financial System Security\\n\\n Remaining Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n Reevaluate ------ privileges\\n assigned to Department of\\n Treasury personnel access\\nCONS- Treasury users, and restrict\\n to DHS- - ---- ----\\nIT-05- user account permissions to\\n -- -- --- -------------------\\n01 only the minimum X X\\n ---- - - ---- - ---------\\n privileges necessary to\\n continues to be excessive.\\n achieve the principle of\\n least privilege.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 45\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\n Department of Homeland Security\\n FY2005 Information Technology\\nNotification of Findings and Recommendations - Detail\\n\\n\\n Office of State and Local Government Coordination and\\n Preparedness (SLGCP)\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 46\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Department of Homeland Security\\n FY2005 Information Technology\\n Notification of Findings and Recommendations \\xe2\\x80\\x93 Detail\\n\\n State and Local Government Coordination and Preparedness (SLGCP)\\n\\n Significant IT NFRs Which Contributed to the Overall DHS Material Weakness for\\n Financial System Security\\n\\n Significant Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n Implement a Memorandum\\n of Understanding (MOU)\\n IT control environment of agreement to include the\\n the Department of Justice minimum-security related\\n Office of Justice\\n responsibilities and continue\\nSLGCP- Programs (OJP) needs\\n2005-06 strengthening over access\\n to work with OJP to ensure X X\\n controls, change controls, all weaknesses that impact\\n service continuity, and SLGCP\\xe2\\x80\\x99s reliance on the\\n system software.",
"OJP IT control environment\\n are mitigated and corrected.\\n\\n Continue to finalize the\\n Segregation of duties is policies and procedures that\\n not properly enforced. address segregation of\\n The SLGCP has not duties for SLGCP\\n formed a separate\\n information systems\\nSLGCP- Information Systems\\n department and has yet to\\n functions and create an X X\\n2005-12\\n develop policies or Information Systems\\n procedures outlining department that is\\n segregation of duties responsible for all security\\n controls or procedures. and network administration\\n of SLGCP systems.\\n Improve the process for\\n notifying the Security\\n Officer or Administrator of\\n employee or contractor\\n Application user accounts transfers/terminations so\\nSLGCP- are not removed in a that system access to the\\n timely manner after user\\n X X\\n2005-13 ---- - - --- - ----- -- - -- --- -----\\n separation.",
"------------ --------- ----- - - ---\\n -- - --------- -- - - -- --- -- ---\\n -------- ----------- and\\n -- - ---- ---s removed in a\\n more timely manner.\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 47\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\n Department of Homeland Security\\n FY2005 Information Technology\\nNotification of Findings and Recommendations \\xe2\\x80\\x93 Detail\\n\\n\\n Transportation Security Administration\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 48\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Department of Homeland Security\\n FY2005 Information Technology\\n Notification of Findings and Recommendations \\xe2\\x80\\x93 Detail\\n\\n Transportation Security Administration\\n\\n Significant IT NFRs Which Contributed to the Overall DHS Material Weakness for\\n Financial System Security\\n\\n Significant Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n -------- -- Unix change\\n control process supporting TSA management should\\n --- -- -- - -- ------ -- -------- work with-- --- ------\\n ------ ) and -- - - ------ management to ensure the\\n -- ----- --- -- --- - -- --- development and\\n ---- -- - have weaknesses enforcement of\\n including: procedures in configuration management\\nTSA-IT- support of the finalized procedures for developing\\n X X\\n 05-003 CM policy are not test plans, documenting test\\n developed, documentation results, implementing\\n supporting a risk software, management\\n assessment is not approval of system\\n maintained, formal change changes, and retention of\\n requests are not used, and risk assessment and testing\\n test plans and test results documentation.\\n are not documented.\\n TSA management should\\n Service continuity\\n work with - --- ------\\n weaknesses for -----------\\n management to ensure the\\n ----------- ------- including\\n periodic reassessment and,\\n outdated Business\\n as appropriate, revision of\\n Continuity Contingency\\n the ---------- BCCP,\\nTSA-IT- Plan (BCCP), lack of\\n development of disaster X X\\n 05-004 disaster recovery\\n recovery procedures for\\n procedure details, an off-\\n ------- - ----- -- completion\\n site storage location in\\n of the relocation of the off-\\n close proximity to the data\\n site storage location, and\\n center, and lack of BCCP\\n periodic testing of the\\n testing exist.\\n BCCP.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 49\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Significant Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n TSA management should\\n work with - --- ------\\n No documented\\n management to ensure the\\n procedures exist for\\n development of formal\\n controlling the processes\\n entity wide procedures for\\nTSA-IT- associated with the\\n granting, monitoring, and X X\\n 05-005 granting, monitoring, and\\n terminating ----- user\\n termination of user\\n accounts and periodic\\n accounts within------ have\\n revalidation of------ user\\n not been documented.\\n profiles by local security\\n administrators.\\n -------- -- has not\\n TSA management should\\n developed documented\\n work with - --- ------\\n policies and procedures to\\n management to ensure the\\n restrict access to the UNIX\\n development of policies and\\n operating system, for\\n procedures for restricting\\nTSA-IT monitoring access, and\\n and monitoring access to X X\\n05-006 periodic reviews are not\\n the UNIX operating system\\n performed to determine if\\n for ---- --- - --- - -- and\\n monitoring of the UNIX\\n performance of period\\n operating system for---- -\\n reviews of the monitoring\\n -- ------- is functioning as\\n process.\\n intended.\\n Certification and\\n Accreditations (C&A) for\\n TSA management should\\n the ---- -- --- -- -----------\\n work with - --- ------\\n ---- -- -- ----- --- -- ---- --- - -\\n management to ensure the\\n -------- - -------- were not\\n update and completion of\\nTSA-IT complete.",
"Specifically,\\n the C&A process for X X\\n05-007 security testing and\\n --- ---- ------ --- - ------ to\\n evaluations (ST&Es) were\\n include the completion of\\n incomplete and security\\n ST&Es, and the update of\\n plans had not been\\n security plans.\\n updated.\\n\\n TSA management should\\n -------- -- has not\\n work with-- --- ------\\n implemented formal\\n management to ensure the\\n procedures for the periodic\\n development of procedures\\n management review and\\nTSA-IT- for the regular and periodic\\n monitoring of activities of X X\\n 05-008 monitoring of high-level\\n ---- - database\\n ---- - database administrator\\n administrators and system\\n and system administrator\\n administrators or the\\n activities, and the --------\\n Oracle SYS accounts.\\n ----------------\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 50\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Significant Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n TSA management should\\n work with - --- ------\\n management to ensure the\\n The Enterprise Security implementation of the\\n Management tool individual fixes noted in the\\n identified world writeable NFR for vulnerabilities\\nTSA-IT-\\n directories without a sticky identified and the institution X X\\n 05-009\\n bit set, and account of a formal process for\\n management weaknesses performing periodic scans\\n over DART. of the -- ---- - -- network\\n environment, including the\\n financial processing\\n environment.\\n TSA management should\\n work with - --- ------\\n management to ensure the\\n implementation of the\\n AppDetective identified\\n individual fixes noted in the\\n vulnerabilities on the -----\\n NFR for vulnerabilities\\nTSA-IT- database including weak\\n identified and institution of X X\\n 05-010 passwords, excessive\\n a formal process for\\n access permissions and\\n performing periodic scans\\n missing patches.\\n of the -- ---- - -- network\\n environment, including the\\n financial processing\\n environment.\\n ------ - -- management\\n Internet Security Systems\\n implemented immediate\\nTSA-IT- Internet Scanner identified\\n corrective action by X X\\n 05-011 three hosts that were\\n removing the BrightStor\\n missing patches.\\n agent from the three hosts.\\n TSA management should\\n Inaccuracies exist within ensure that personnel errors\\n TSA personnel records regarding separated\\nTSA-IT which addresses both employees cited during the\\n X X\\n05-012 separated employee issue prior year audit are\\n and other erroneous corrected and\\n personnel records.",
"documentation of corrective\\n actions retained on file.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 51\\n\\x0c Appendix B\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Remaining IT NFRs Which Contributed to the Overall DHS Material Weakness for\\n Financial System Security\\n\\n Remaining Findings\\n Contributing to the\\n New Repeat Overall DHS\\nNFR # Condition Recommendation\\n Issue Issue Material Weakness for\\n Financial System\\n Security\\n TSA management should\\n work with - --- ------\\n Formal procedures management to ensure the\\n regarding access to the development and\\n --- --- -- - - -- --- ------- implementation of formal\\nTSA-IT\\n ---- ------------------ --- data center access\\n05-001 X X\\n ------ - have not been procedures and a\\n established and formalized method to track\\n implemented. information system-related\\n items entering and exiting\\n the facility.\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 52\\n\\x0c Appendix C\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\n Appendix C\\n\\nStatus of Prior Year Notices of Findings and Recommendations\\n And Comparison To\\n Current Year Notices of Findings and Recommendations\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 53\\n\\x0c Appendix C\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Disposition\\nComponent NFR No.",
"Description Closed Repeat\\n\\nUSCIS 04-09 Access control weaknesses were identified in the----- -- - -- -------- and 05-04\\n were not documented as part of the Certification and Accreditation\\n (C&A) package.\\nUSCIS 04-10 ------- - -- users at the Vermont Service Center have the ability to X\\n adjudicate applications as well as process payments, which are\\n considered incompatible duties.\\nUSCIS 04-18 USCIS does not have procedures in place to periodically review X\\n ------ -- ----- --- - ----------- - --- ----------------- - user access lists and\\n could not provide a list of all authorized---- -- -- users upon request.\\nUSCIS 04-19 ------- - -- -- - ---- at the Vermont Service Center have ability to adjudicate X\\n applications as well as process payments, which are considered\\n incompatible duties.\\nUSCIS 04-21 Interface controls to ensure that data transmitted by the lockbox X\\n operation is accurately uploaded into the National Business Center\\xe2\\x80\\x99s\\n -- ---- - --------- --- --- ---- -- -- - --- ---- - database need improvement.\\nUSCIS 04-27 The site C&A package for the California Service Center has expired.",
"05-02\\n\\n\\n\\nICE 04-17 Access control weaknesses were identified in the ---- - --- ----- - - --- X\\n -- - --------- -- -- - ----- .\\nICE 04-18 ICE does not have procedures in place to periodically review -------- 05-07\\n ------ ----- --- - ---- ------ - - - - ---- -- --- user access lists and could not\\n provide a list of all authorized-------- users upon request.\\n\\n\\nCBP 04-01 Nineteen individual user accounts on the ------ - --------- -------- 05-02\\n mainframe security software had excessive privileges assigned to them.\\nCBP 04-02 Weaknesses in the C&A process for the --- -- -- - -- ----------------- 05-23\\n --- ----- ----- - - lack of evaluation of the need for a separate C&As for\\n applications included in the Administrative Applications C&A, the and\\n improvements needed in risk assessment guidance.\\nCBP 04-03 Weaknesses in disaster recovery testing and continuity of critical X\\n operational functions for the ----- and the --------- -- --- ---- -\\n -- - --------- -- -- - ----- ------- - - at the alternate processing site.\\nCBP 04-04 Excessive sensitive functions and high-risk combinations have been 05-18\\n assigned to ACS users.\\nCBP 04-05 Certain controls can be overridden in ---- -- without supervisory 05-04\\n approval.\\nCBP 04-06 Excessive access has been granted to ------ ------- - --------- - - --- -- X\\n -- --------------- ---- -- - ----- --- -- ----- -- --- -------- ---- - ---- ----- ---------\\nCBP 04-07 Weaknesses in the C&A process at field sites. 05-31\\nCBP 04-08 Improvements are needed in system logical access controls over 05-09\\n network assets affecting headquarters and the----- - --- ------ -- - -- ---\\nCBP 04-09 Interconnection Security Agreements (ISA) are not documented for 92 05-11\\n partners that connect with ----- .\\nCBP 04-10 Access is not appropriately restricted to -- --- - vendor and bank tables.",
"05-29\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 54\\n\\x0c Appendix C\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Disposition\\nComponent NFR No. Description Closed Repeat\\n\\nCBP 04-11 X\\n Weaknesses with the ------ ----- ----------- Risk Assessment.\\nCBP 04-12 Improvements needed in restricting access to sensitive system level 05-28\\n transactions through the On-Line Transaction Processing System\\n Security ------- -\\nCBP 04-13 ----- -- ---- - - - - --- segregation of duties issues were identified with 05-01\\n several users.\\nCBP 04-14 The incident handling and response capability needs improvement 05-16\\n regarding incident detection and initiation, response, recovery, and\\n closure.\\nCBP 04-15 Audit logs are not appropriately monitored for the --- ---- - -- - ------- .",
"X\\nCBP 04-16 Weaknesses in the access control process for the------------ ------------ 05-05\\n Materials Management.\\nCBP 04-17 System access, user account management, and configuration 05-09\\n weaknesses identified with the ------ general controls environment for\\n materials management module.\\nCBP 04-18 Least privilege principles are not appropriately enforced for mainframe 05-30\\n user groups\\xe2\\x80\\x99 access to sensitive datasets/utilities.\\n\\n\\nCG 04-001 Excessive access privileges were granted to the ----- Financial 05-014\\n Reporting System.\\nCG 04-002 X\\n The ----- - - --------------- -- ------- --- ------- User Guide is outdated.\\nCG 04-003 Comprehensive policies for conducting personnel suitability 05-006\\n investigations or records to support the results of personnel suitability\\n investigations do not exist.\\nCG 04-004 No documented procedures exist requiring local site administrators to 05-011\\n control access to------- 17 user accounts have not been appropriately\\n removed for terminated employees, and local site administrators do not\\n periodically revalidate user accounts.\\nCG 04-005 No documented policies and procedures to restrict access to the UNIX 05-012\\n operating system and for monitoring access.",
"No periodic reviews to\\n determine if current monitoring is functioning as intended.\\nCG 04-006 Weaknesses associated with the UNIX system software change control 05-010\\n process.\\nCG 04-007 Outdated and incomplete security plans, and C&As not performed for 05-013\\n the ---- -- --- -- --- ------- ------ -- ----- ----- - ------- - ------ --- ---- - ---\\n -------- -- ---- ---- ------ - - --- -- -- -- .\\nCG 04-008 Service continuity weaknesses for the ----- ------------- ------------- 05-009\\n ---------- - - ------ including outdated Business Continuity Contingency\\n Plan (BCCP), lack of disaster recovery procedure details, an off-site\\n storage location in close proximity to the data center, and lack of\\n BCCP testing.\\nCG 04-009 --------------------------- ------- and CMPlus interface errors are not 05-026\\n automatically communicated back to the corresponding CMPlus\\n unit/user.\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 55\\n\\x0c Appendix C\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Disposition\\nComponent NFR No.",
"Description Closed Repeat\\n\\nCG 04-010 The security plans for the ------- -- --- -- -- --- --- --- - -- - ---- - --- ----- X\\n -------------- -- ----- are not in compliance with criteria.\\nCG 04-011 CMPlus passwords do not automatically expire, CMPlus accounts are 05-023\\n not locked out after successive invalid login attempts, and a\\n documented CMPlus system security plan does not exist.\\nCG 04-012 The Operations Service Center (OSC) has not implemented a disaster 05-022\\n recovery plan.\\nCG 04-013 Entity wide security program planning is not in place for the Personnel 05-005\\n Service Center (PSC).\\nCG 04-014 05-001\\n Weaknesses exist regarding PSC service continuity and resource\\n classifications.\\nCG 04-015 Weaknesses were identified at PSC relating to weak password settings, 05-003, 05-004,\\n lack of monitoring of access lists or changes to security profiles, and 05-008\\n lack of policies for monitoring operating system software.\\nCG 04-016 Documented procedures do not exist at PSC to enforce segregation of X\\n duties principles.\\nCG 04-017 Database Scanner identified vulnerabilities on the Supply Center 05-025\\n Computer Replacement (SCCR) database supporting---- --- - .\\nCG 04-018 The Enterprise Security Manager (ESM) tool identified high and 05-024\\n medium level vulnerabilities on three hosts supporting ---------\\nCG 04-019 Database Scanner identified vulnerabilities on the -------------------- 05-016\\n -- --- - --- ---- ---- -- - - --- - ----\\nCG 04-020 ESM identified high and medium level vulnerabilities on three hosts 05-017\\n supporting --- ----- -- -- ---- - -- --- ----\\nCG 04-021 Change control weaknesses exist at the PSC, including lack of 05-002\\n documented test plans, test results, and software modification audit\\n trails.\\nCG 04-022 Several network-based vulnerabilities were identified on the external X\\n Information Technology resources for Coast Guard.\\nCG 04-023 Weaknesses were self-identified by Coast Guard on two hosts X\\n supporting the ------- ----- - --- - ----- - --- - -- - - -- - -- --- -- --- -- ------ -----\\n ----- -- --- and were not subsequently addressed.\\nCG 04-024 Implementation and management oversight of Coast Guard\\xe2\\x80\\x99s 05-027\\n information security program remains fragmented.\\nCG 04-025 Interface controls do not ensure that record counts match as data is X\\n transferred from -------- into CheckFree.\\nCG 04-026 Three of the four Database Administrators at ------ ---- also have X\\n System Administrator rights and responsibilities.\\nCG 04-063 Undelivered Orders \\xe2\\x80\\x93 Transaction Codes: A report allowing users to 05-021\\n review and manually re-establish obligation was not implemented as\\n well as the manual review process.",
"(prior year Financial Notice of\\n Finding and Recommendation)\\n\\n\\nCONS 04-01 Excessive - --- ----- -- -- --- -------- - ---- --- ------ - - --------------- system 05-01\\n privileges were granted and a documented process does not exist to\\n notify -- - -- application administrators of user termination or transfer\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 56\\n\\x0c Appendix C\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Disposition\\nComponent NFR No.",
"Description Closed Repeat\\n\\n for timely removal of system access.\\n\\nCONS 04-02 The interagency agreement between DHS and -- ----- --- -- --- - - --- - -- X\\n -- ------- --- ---- ----- - - -- -- ---- ---- --- ---- -- ------ - - does not describe\\n the information security controls that need to be implemented and\\n managed by the data owner (DHS) or the system operator (Treasury).\\nCONS 04-03 Lack of compliance with FISMA in the areas of access controls, entity- 05-09\\n wide security program planning and management, system software,\\n segregation of duties, and service continuity.\\n\\n\\nEPR 04-11 Policies and procedures do not exist to perform period review of 05-01\\n --- - ---- -- --- -- --- - --- - -- -- -- - -- --- -- --- -- --- --- ----- ---- -- --- user\\n access lists.\\nEPR 04-16 -- -- ----- ---- --------- --- - -- -- -- - -- --- -- ---- - - -- - - - -- - ------ --- 05-02\\n access controls do not appropriately suspend a user\\xe2\\x80\\x99s session after ten\\n minutes of activity and user are not locked out after three unsuccessful\\n logon attempts.\\nEPR 04-17 The----- ------ ---- - -------- ---- had multiple weaknesses including lack 05-03\\n of raised floors, production and test servers in close proximity, lack of\\n review of physical user access lists, and no procedures to periodically\\n change keypad combinations.\\nEPR 04-18 Lack of consistent policies or processes for ensuring that all general 05-04\\n support system and application access, including --------- , is timely\\n removed for terminated employees.\\nEPR 04-19 05-05\\n Seven critical systems do not have a C&A.\\nEPR 04-20 No documented process for generating or communicating new or reset 05-06\\n ----- -- passwords to users.\\nEPR 04-21 X\\n -------- Table audit trail data is not reviewed periodically.\\nEPR 04-22 05-07\\n Insufficient documentation exists to fully explain -------- functions and\\n user access capabilities associated with those functions.\\nEPR 04-23 The ESM tool identified several high and medium level technical 05-10\\n vulnerabilities on the ----- --- ------\\nEPR 04-24 Oracle databases, including the ----- -- production and development 05-11\\n databases, contained weak or default passwords.\\nEPR 04-25 The ------- - tool identified 88 technical vulnerabilities on 13 different 05-12\\n FEMA hosts, the majority of which related to missing patches.\\nEPR 04-28 The Intra-governmental Payment and Collection System (IPAC) X\\n provides for interagency billings and payments for supplies and\\n services.",
"Of five IPAC User Request Forms selected for testing, we\\n noted one form on which the employee\\xe2\\x80\\x99s access was not specifically\\n indicated.\\nEPR 04-32 The Continuity of Operations Plans (COOP) for ----- -- -- -------- -- are 05-08\\n in draft.\\nEPR 04-35 ------- ------ - has not documented interagency agreements for alternate X\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 57\\n\\x0c Appendix C\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n Disposition\\nComponent NFR No. Description Closed Repeat\\n\\n data processing and telecommunication facilities in the event of a\\n disaster.\\nEPR 04-39 FEMA has not prioritized its critical data and operations, emergency 05-09\\n processing priorities and procedures have not been documented, and all\\n resources supporting critical operations have not been identified.\\n\\n\\nLTD 04-01 Incident response policies and procedures are not in place and/or X\\n finalized for the FLETC--- - -- - -- --- ------------------- -- -------- .\\n\\n\\nSLGCP 04-05 A system owner and security manager has not been identified to track X\\n background investigations and personnel clearances.\\n\\nSLGCP 04-06 A Service Level Agreement (SLA) is not in place with the third party X\\n hosting the Data Collection Toolkit (DCT).\\nSLGCP 04-07 A documented security awareness training program is not in place. X\\n\\n\\nSLGCP 04-08 Segregation of duties is not properly enforced and documented policies 2005-12\\n outlining segregation of duties controls or procedures do not exist.\\n\\nSLGCP 04-09 Access privileges and profiles for the --- - -- -- -------- --- - -- - --------- -- X\\n -- -- --- --------- ----- ---------- internal users are not properly\\n administered, resulting in an unnecessary number of users with the\\n ability to update the vendor table.\\nSLGCP 04-10 Application user accounts are not removed in a timely manner after 2005-13\\n user separation.\\n\\nSLGCP 04-22 A C&A does not exist for the ------------ --------- -- ----- X\\n\\n\\nSLGCP 04-25 The reconciliation process for financial transactions that occurred X\\n between ----- -- and the-- - - - - ---- -- ----- --- - ----- was not fully\\n implemented throughout the fiscal year.\\nSLGCP 04-26 The ----- - - --- ------- -- -- ----- captured transactions but did not capture X\\n user activity for three months of the fiscal year.\\n\\n\\nTSA 04-01 Segregation of duties is not properly enforced in the ------- X\\n ----- ------- - within---------\\nTSA 04-02 Weaknesses in -------- access controls, network security, and system X\\n security controls.\\nTSA 04-03 System financial integrity issues identified in the ------ application.",
"X\\nTSA 04-04 Inaccuracies exist within TSA personnel records which addresses both 05-12\\n separated employee issue and other erroneous personnel records\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 58\\n\\x0c Appendix D\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\n Appendix D\\n\\nManagement Response to Draft IT Management Letter\\n\\n\\n\\n\\n Information Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 59\\n\\x0c Appendix D\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 60\\n\\x0c Appendix D\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 61\\n\\x0c Appendix D\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 62\\n\\x0c Appendix D\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 63\\n\\x0c Appendix D\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 64\\n\\x0c Appendix D\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 65\\n\\x0c Appendix D\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 66\\n\\x0c Appendix D\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 67\\n\\x0c Appendix D\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 68\\n\\x0c Appendix D\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 69\\n\\x0c Appendix D\\n\\n Department of Homeland Security\\n Information Technology Management Letter\\n September 30, 2005\\n\\n\\n\\n\\nInformation Technology Management Letter for the DHS FY 2005 Financial Statement Audit\\n 70\\n\\x0c Report Distribution\\n\\n Department of Homeland Security\\n\\n Secretary\\n Deputy Secretary\\n General Counsel\\n Chief of Staff\\n Deputy Chief of Staff\\n Executive Secretary\\n Under Secretary, Management\\n Chief Information Officer\\n Chief Financial Officer\\n Chief Information Security Officer\\n Assistant Secretary, Public Affairs\\n Assistant Secretary, Legislative and Intergovernmental Affairs\\n Assistant Secretary, Policy\\n DHS Audit Liaison\\n Chief Information Officer, Audit Liaison\\n\\n Office of Management and Budget\\n\\n Chief, Homeland Security Branch\\n DHS OIG Budget Examiner\\n\\n Congress\\n\\n Congressional Oversight and Appropriations Committees, as appropriate\\n\\n\\n\\n\\nInformation Technology Management Letter for the FY 2005 DHS Financial Statement Audit\\n\\x0cAdditional Information and Copies\\n\\nTo obtain additional copies of this report, call the Office of Inspector General\\n(OIG) at (202) 254-4100, fax your request to (202) 254-4285, or visit the OIG\\nweb site at www.dhs.gov/oig.\\n\\nOIG Hotline\\n\\nTo report alleged fraud, waste, abuse or mismanagement, or any other kind\\nof criminal or noncriminal misconduct relative to department programs or\\noperations, call the OIG Hotline at 1-800-323-8603; write to DHS Office of\\nInspector General/MAIL STOP 2600, Attention: Office of Investigations \\xe2\\x80\\x93\\nHotline, 245 Murray Drive, SW, Building 410, Washington, DC 20528; fax\\nthe complaint to (202) 254-4292; or email DHSOIGHOTLINE@dhs.gov.",
"The\\nOIG seeks to protect the identity of each writer and caller.\\n\\x0c'"
]
| https://archive.org/download/us-inspectors-general.bulk/us-inspectors-general.bulk.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This is a first action on the merits of the application. Claims 1-21 are pending.
Specification The disclosure is objected to because of the following informalities: [0032]: In line 4 of p. 24, “Benulli’s” appears to be a misspelling of “Bernoulli's.” Appropriate correction is required.
Claim Objections Claims 1-2, 9, and 14-16 are objected to because of the following informalities: Claim 1: In the last paragraph, “wherein the gas detection module performs a computation processing to the gas detection data obtained by the gas detection module” appears to be a misstatement of “wherein the gas detection module performs a computation process the gas detection data obtained by the gas detection module” or similar. In line 3 of the same paragraph, Applicant is respectfully advised to provide the conjunction “and” to separate the two “wherein” clauses (i.e., and wherein when the gas-guiding unit is in operation). Applicant is also respectfully advised to begin a new paragraph with this clause to improve readability. Claim 2: In both instances, Applicant is respectfully advised to amend “a herbal” to “an herbal.” In line 4, Applicant is respectfully advised to amend “for efficiently performing anti-allergy function” to “for efficiently performing an anti-allergy function.” Claim 9: In line 6, “the dust-collecting plate” appears to be a misstatement of “the at least one dust-collecting plate.” See line 3. Claim 14: In lines 9-10, “the gas detection data to perform a computation processing to the gas detection data” appears to be a misstatement of “the gas detection data to perform a computation to process Claim 15: In line 10, “two lateral walls, wherein a light permissive window is opened on the lateral wall” appears to be a misstatement of “two lateral walls, wherein a light permissive window is opened on a lateral wall.” Line 15 ends with “and.” Since this “and” appears in the middle of a list of claim elements, it appears to be superfluous. Claim 16: In line 14, “reciprocatingly when the piezoelectric plate is applied with the voltage” appears to be a misstatement of “reciprocatingly when the actuation body is applied with the voltage.” See line 8: “reciprocatingly when the actuation body is applied with a voltage.” Appropriate correction is required.
Claim Interpretation The following is a quotation of 35 U.S.C. 112(f): (f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph: An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
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. Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function. 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. 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. Such claim limitation(s) is/are: gas-guiding unit in claim 1. Claim limitation “gas-guiding unit” has/have been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because it uses/they use a generic placeholder “unit” coupled with functional language “gas-guiding . . . guides the gas into the gas detection and purification device . . .” without reciting sufficient structure to achieve the function. Furthermore, the generic placeholder is not preceded by a structural modifier. A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitation: a fan or an actuation pump ([0015]). Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 5, 10 and 19 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claim 5: The term “efficiently” is a relative term which renders the claim indefinite. The term “efficiently” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. For the purposes of examination, any anti-allergy function will be interpreted as efficient. Claim 10: The term “high” in “the phrase “high voltage” (line 6) is a relative term which renders the claim indefinite. The term “high” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. In line 7, “the high-voltage plasma column” lacks sufficient antecedent basis. For the purposes of examination, “a high voltage” will be interpreted as met by any voltage, and “the high-voltage plasma column” will be interpreted as “a high-voltage plasma column.” Claim 19: In line 2, the claim recites, “a rectangular cylinder structure.” It is unclear what is meant by “a rectangular cylinder structure.” The online Cambridge dictionary defines a cylinder as “a solid or hollow tube with long straight sides and two circular ends the same size.” The term “rectangular” does not appear to be compatible with the definition of a cylinder. [0008] uses the term and refers to Fig. 1B, but this figure is two-dimensional, so it does not clarify the meaning of the term. For the purposes of examination, “a rectangular cylinder structure” will be interpreted as a rectangular structure.
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. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. Claims 1-3 and 7-14 are rejected under 35 U.S.C. 103 as being unpatentable over Sharma et al. (WO 2018/112507 A1, hereinafter “Sharma”) in view of Mou et al. (TWM567364U, hereinafter “Mou”). Regarding claim 1, Sharma discloses an apparatus 10 for the filtering and sanitizing of air (Figs. 5, 6; [0067]) comprising a particle sensor 57 (Fig. 9; [0084]) (i.e., a gas detection and purification device, noting that the gas detection module of the present application obtains gas detection data ([0021]) and includes a particulate sensor ([0022]) which obtains particle size and concentration data ([0024], last two sentences, so a particle sensor of Sharma is interpreted as a gas detection device) comprising: a housing assembly 12, an air inlet 14, and an air outlet 16 (Fig. 1; [0067]) (i.e., a housing having at least one gas inlet and at least one gas outlet), and an air passageway between the inlet and the outlet (Fig. 6; [0079], noting the arrows at the top and bottom of Fig. 6) (i.e., wherein a gas channel is disposed between the at least one gas inlet and the at least one gas outlet); a HEPA filter 20 ([0086]) (i.e., a purification module disposed in the gas channel so as to filter a gas guided into the gas channel); a fan 18 above the filter 20 (Fig. 5, noting that the fan is mislabeled in Fig. 6; [0081]) (i.e., a gas-guiding unit disposed in the gas channel and disposed at one side of the purification module, wherein the gas-guiding unit guides the gas into the gas detection and purification device from the at least one gas inlet, guides the gas to pass through the purification module for performing filtering and purifying, and discharges the gas from the at least one gas outlet into an environment outside the gas detection and purification device); and sensors 55 including the particle or dust sensor 57 (Fig. 9; [0084]) (i.e., a gas detection module disposed in the gas channel), wherein the sensors/gas detection module comprises a PCB 56 ([0084]) (a control circuit board), the housing of the sensors 55 (Fig. 9) (i.e., a gas detection main body), a controller 52 ([0084]) (i.e., a microprocessor), and a battery 54 ([0084]), and wherein the sensor provides a signal indicative of the air quality to the controller 52 ([0085]) (i.e., wherein the gas detection module is provided for detecting the gas guided into the housing to obtain gas detection data); and wherein the controller 52 may be configured to automatically activate the fan 18 of the apparatus if detects particles and the dew point exceeds a predetermined threshold ([0090]) (i.e., wherein the gas detection module performs a computation processing to the gas detection data obtained by the gas detection module so as to control the gas-guiding unit to start . . . operation), wherein the fan is arranged to urge air through the air passageway between the air inlet and the air outlet ([009]) (i.e., wherein when the gas-guiding unit is in operation, the gas-guiding unit guides the gas into the gas detection and purification device from the at least one gas inlet, guides the gas to pass through the purification module for performing filtering and purifying, and discharges the gas from the at least one gas outlet into the environment outside the gas detection and purification device to obtain a purified gas), releasing filtered air from the air outlet 16 ([0068]) (i.e., whereby the gas detection and purification device provides a user with the purified gas). However, Sharma does not explicitly disclose (i) a communication device, or (ii) a power unit. Regarding (i), Mou discloses a gas detecting device (p. 8, “Please refer to FIG. 1A”) comprising a purifying gas module 4(p. 11, last para.) (i.e., a gas detection and purification device) attached to a circuit board (Fig. 3A; p. 8, “Please refer to FIG. 3A”; Fig. 8, showing a circuit board at arrow 5), a particle monitoring module 3 (Fig. 8; p. 8, “Please refer to FIG. 1A”), a processor 51, and a battery 53 (Fig. 8; p. 13, “Referring to FIG. 8”) (i.e., a control circuit board, a gas detection main body, a microprocessor, and a battery). Mou teaches a communication component 52 (p. 13, “Referring to FIG. 8”) that can communicate with an external device 6 (p. 8, “The external device”) to provide monitoring information for immediate access to information to alert people in the environment of about exposure to gases (p. 8, “In summary”). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma by providing (i) a communication device as taught by Mou because a communication device can provide environmental information to an external device (Mou, “In Summary”). Regarding (ii), Mou shows a PCB-like structure connecting the battery 53 to the particle monitoring module 3 via structures on either side of the battery (Fig. 2), which the skilled practitioner would infer are for providing for the transmission of power from the battery, so Mou implicitly discloses a power unit, making the providing of a power unit prima facie obvious, noting that the instant application describes the power unit by its function ([0021]: “The power unit 4e is used to provide power for operating the gas detection main body 4b . . . and the power unit 4e is electrically connected to the battery 4f for obtaining the power.”). Furthermore, it would have been prima facie obvious in a battery-powered device to provide conductive and/or control structures for the transmission of power in the battery to subsystems requiring power.
Regarding claims 2 and 3, Sharma discloses a HEPA filter 20 ([0086]) (i.e., the purification module is a filtering unit; the filtering unit is a high-efficiency particulate air (HEPA) filter).
Regarding claim 7, Sharma discloses a HEPA filter 20 ([0086]) (i.e., the purification module consists of the filtering unit). However, Sharma in view of Mou does not explicitly disclose that the purification module also consists of a photocatalyst unit, wherein the photocatalyst unit comprises a photocatalyst and an ultraviolet light, and the photocatalyst is excited under illumination of the ultraviolet light so as to degrade the gas guided into the gas detection and purification device, thereby filtering and purifying the gas. Mou discloses a filter with a photocatalyst unit comprising a photocatalyst 45b and an ultraviolet lamp 45c (Fig. 12B; p. 11, bottom) (i.e., the purification module consists of a photocatalyst unit; the photocatalyst unit comprises a photocatalyst and an ultraviolet light), and that the photocatalyst 45b is irradiated by the ultraviolet lamp, light energy is converted into a chemical energy to decompose the gas and sterilize the gas to achieve the effect of purifying the gas (p. 11, bottom through p. 12, top) (i.e., the photocatalyst is excited under illumination of the ultraviolet light so as to degrade the gas guided into the gas detection and purification device, thereby filtering and purifying the gas). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing a purification module that consists of a photocatalyst unit, wherein the photocatalyst unit comprises a photocatalyst and an ultraviolet light, and the photocatalyst is excited under illumination of the ultraviolet light so as to degrade the gas guided into the gas detection and purification device, thereby filtering and purifying the gas as taught by Mou because this configuration can achieve the effect of purifying a gas (Mou, p. 11, bottom through p. 12, top).
Regarding claim 8, Sharma discloses a HEPA filter 20 ([0086]) (i.e., the purification module consists of the filtering unit). However, Sharma in view of Mou does not explicitly disclose that the purification module also consists of a photo plasma unit, wherein the photo plasma unit comprises a nanometer optical tube, and wherein the gas is illuminated by a light of the nanometer optical tube to degrade volatile organic gases in the gas, so that the gas guided into the gas detection and purification device is purified. Mou discloses a filter with a photoplasma unit that comprises a nanometer light tube 45d (p. 12, lines 3-8) (i.e., a nanometer optical tube) that irradiates molecules in the gas to decompose them into a highly oxidative photoplasma having an ion gas stream that destroys organic molecules to achieve the effect of purifying the gas of, for example, VOCs (p. 12, lines 3-8) (i.e., the gas is illuminated by a light of the nanometer optical tube to degrade volatile organic gases in the gas, so that the gas guided into the gas detection and purification device is purified). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing a purification module that also consists of a photo plasma unit, wherein the photo plasma unit comprises a nanometer optical tube, and wherein the gas is illuminated by a light of the nanometer optical tube to degrade volatile organic gases in the gas, so that the gas guided into the gas detection and purification device is purified as taught by Mou because this configuration can purify a gas of, for example, VOCs (Mou, p. 12, lines 3-8).
Regarding claim 9, Sharma discloses a HEPA filter 20 ([0086]) (i.e., the purification module consists of the filtering unit). However, Sharma in view of Mou does not explicitly disclose that the purification module also consists of a negative ion unit, wherein the negative ion unit comprises at least one electrode wire, at least one dust-collecting plate, and a boost power supply, wherein the at least one electrode wire discharges electricity under a high voltage so that particulates in the gas guided into the gas detection and purification device are adhered on the dust-collecting plate, and the gas is filtered and purified. Mou discloses a filter with an anion unit with dust collecting plates 45f having a negative electric charge onto which particles attach for purification (Fig. 12D, p. 12, lines 10-17) (i.e., a negative ion unit; at least one dust-collecting plate; particulates in the gas guided into the gas detection and purification device are adhered on the dust-collecting plate, and the gas is filtered and purified), and having electrode wires 45e (i.e., at least one electrode wire) and a boosting power supply 45g (i.e., a boost power supply) (p. 12, lines 10-17), wherein the electrode wires provide a high voltage discharge (p. 12, lines 10-17) (i.e., the at least one electrode wire discharges electricity under a high voltage). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing a negative ion unit, wherein the negative ion unit comprises at least one electrode wire, at least one dust-collecting plate, and a boost power supply, wherein the at least one electrode wire discharges electricity under a high voltage so that particulates in the gas guided into the gas detection and purification device are adhered on the dust-collecting plate, and the gas is filtered and purified as taught by Mou because this configuration can purifying gas of dust collected on the at least one plate (Mou, p. 12, lines 10-17).
Regarding claim 10, Sharma discloses a HEPA filter 20 ([0086]) (i.e., the purification module consists of the filtering unit). However, Sharma in view of Mou does not explicitly disclose that the purification module also consists of a plasma unit, wherein the plasma unit comprises an electric-field first protection mesh, an absorbing mesh, a high-voltage discharge electrode, an electric-field second protection mesh, and a boost power supply, and wherein the boost power supply provides the high-voltage discharge electrode with a high voltage so as to generate a high-voltage plasma column, and plasma in the high-voltage plasma column degrades viruses or bacteria in the gas guided into the gas detection and purification device. Mou discloses a filter with a plasma ion unit (Fig. 12E; p. 12, lines 19-29) (i.e., a plasma unit) including an electric field upper protection net 45h (i.e., an electric-field first protection mesh), an adsorption filter 45i (i.e., an absorbing mesh), a high voltage discharge electrode 45j (i.e., a high-voltage discharge electrode), an electric field lower protection net 45k (i.e., an electric-field second protection mesh), and a boost power supply 45g, wherein the boost power supply 45g provides the high-voltage discharge electrode 45j with a high-voltage discharge to generate a high-voltage plasma column (i.e., the boost power supply provides the high-voltage discharge electrode with a high voltage so as to generate a high-voltage plasma column) to take away the hydrogen of virus and bacterial surface proteins (p. 12, lines 19-29) (i.e., plasma in the high-voltage plasma column degrades viruses or bacteria in the gas guided into the gas detection and purification device). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing a plasma unit, wherein the plasma unit comprises an electric-field first protection mesh, an absorbing mesh, a high-voltage discharge electrode, an electric-field second protection mesh, and a boost power supply, and wherein the boost power supply provides the high-voltage discharge electrode with a high voltage so as to generate a high-voltage plasma column, and plasma in the high-voltage plasma column degrades viruses or bacteria in the gas guided into the gas detection and purification device as taught by Mou because this configuration can decompose viruses and bacteria surface proteins, purifying the gas (Mou, p. 12, lines 19-30).
Regarding claim 11, Sharma teaches a fan 18 (Fig. 5; [0081]) (i.e., the gas-guiding unit is a fan).
Regarding claim 12, Sharma in view of Mou does not explicitly disclose a gas-guiding unit that is an actuation pump. Mou teaches a gas pump that is an actuator 24 (Figs. 4A-5A) (p. 8, “Referring to FIG. 4A”) (i.e., an actuation pump). Mou teaches that such an actuator can quickly and stably introduce gas (p. 2, “The main purpose”). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing a gas-guiding unit that is an actuation pump as taught by Mou because an actuator can quickly and stably introduce gas (Mou, p. 2, “The main purpose”).
Regarding claim 13, Mou teaches that the actuator/actuation pump comprises an air inlet plate 241 with at least one air inlet hole 241a (Figs. 4A,B, 5A,B, p. 8, “Referring to FIG. 4A”) (i.e., an inlet plate having at least one inlet hole), bus bar holes 241b and a confluence chamber 241c (i.e., at least one convergence channel and a convergence chamber), wherein the air inlet holes 241a are for introducing air to the actuator (Fig. 5A, arrows at sides) (i.e., wherein the at least one inlet hole is used to guide the gas outside the actuation pump to flow therein), the four air inlet holes 241a respectively penetrate the four bus bar holes 241b (p. 8, “Referring to FIG. 4A”) (i.e., the at least one inlet hole correspondingly penetrates the at least one convergence channel), and the bus bar holes 241b merge to the confluence chamber 241c (i.e., the at least one convergence channel is converged at the convergence chamber, so that the gas guided from the at least one inlet hole is converged at the convergence chamber) (Fig. 5B, arrows at 241b; p. 8, “Referring to FIG. 4A”); a resonant/resonator plate/piece 242 combined with the air inlet plate 241 (p. 9, “Continuing to refer to FIG. 5A”) (i.e., a resonance sheet attached to the inlet plate) that has a hollow hole 242a at its center corresponding to the confluence chamber 241c, a movable portion 242b, and a fixing portion 242c (p. 8, “The resonator piece 242”) (i.e., wherein the resonance sheet has a perforation, a movable portion, and a fixed portion, wherein the perforation is located at a center portion of the resonance sheet and corresponds to the convergence chamber of the inlet plate), wherein the movable portion 242b is provided on the outer peripheral portion of the resonance piece 242 opposed to the confluence chamber 241c (p. 8, “The resonator piece 242”) (i.e., the movable portion is disposed at a periphery of the perforation and is disposed at a portion opposite to the convergence chamber), and the fixing portion 242c is disposed at an outer periphery of the resonator piece 242 (e.g., Fig. 5A) and is combined with the intake plate 241 (p. 9, “Continuing to refer to FIG. 5A,” first two lines) (i.e., the fixed portion is disposed at an outer periphery of the resonance sheet and attached to the inlet plate); a piezoelectric actuator 243 that is combined with the resonance piece 242 (p. 9, “Further”) (i.e., a piezoelectric actuator attached on the resonance sheet and disposed correspondingly to the resonance sheet), wherein the piezoelectric actuator 243 includes a suspension plate 243a that is a square, the suspension plate 243a being caused to bend and vibrate (Fig. 4B; p. 9, lines 1-2, “Further”) (i.e., wherein the piezoelectric actuator comprises: a suspension plate having a square shape, wherein the suspension plate is capable of bending and vibrating); an outer frame 243b disposed around the circumference of the suspension plate 243a (p. 9, line 3-4) (i.e., an outer frame disposed around a periphery of the suspension plate); at least one connecting portion 243c to provide a supporting force for elastically supporting the suspension plate 243a (p. 9, lines 5-6) (i.e., at least one supporting element connected between the suspension plate and the outer frame to provide a flexible support for the suspension plate); a piezoelectric element 243d (p. 9, lines 1-2) having a side length that is less than a side length of the suspension plate 243a (Fig. 5A) (i.e., a piezoelectric element having a side length, wherein the side length of the piezoelectric element is smaller than a suspension plate side length of the suspension plate) that is attached to the second surface 2432a of the suspension plate 243a (p. 9, “Further”) (i.e., the piezoelectric element is attached to a surface of the suspension plate), the piezoelectric actuator 243 is subjected to a driving voltage to generate a deformation to displaced downward the suspension plate 243a (p. 9, “5B to 5D”) so that it bends and vibrates (p. 9, “Further”) (i.e., so as to apply a voltage to drive the suspension plate to bend and vibrate); wherein a chamber spacing g is formed between a surface 2431a of the suspension plate 243a and the resonator piece 242 (p. 9, lines 1-3, “Continuing to refer”) (i.e., wherein a chamber space is formed between the resonance sheet and the piezoelectric actuator), wherein the chamber spacing g will affect the transmission effect of the first actuator 24 (p. 9, “Continuing) such that when the piezoelectric element is subjected to the voltage, air is sucked into the air inlet port 241a into the confluence chamber 241c via the bus bar hole 241b (p. 9, “5B to 5D”) (i.e., so that when the piezoelectric actuator is driven, the gas outside the actuation pump is guided into the actuation pump through the at least one inlet hole of the inlet plate, is converged at the convergence chamber via the at least one convergence channel), and flows through the hollow hole 242a/perforation of the resonance sheet (Fig. 5B, center arrow) so that the hollow hole flowing through the resonance piece generates a resonant transmission airflow by the piezoelectric actuator and the movable portion of the resonance piece (p. 14, 11 lines from the bottom) (i.e., by a resonance effect between the piezoelectric actuator and the movable portion of the resonance sheet).
Regarding claim 14, Sharma also teaches that the controller 52 may activate the apparatus 10 or the fan 18 based on the sampled air quality ([0085], [0090]), so Sharma teaches a microprocessor that controls the gas-guiding unit to start or to stop operation. Mou teaches an external device that is a cloud system, a portable device, or a computer system (p. 16, lines 5-6 from bottom) (i.e., the external device is one selected from the group consisting of a cloud processing device, a mobile device, and a computer system). However, Sharma in view of Mou does not explicitly disclose that the gas detection main body, the microprocessor, the communication device, and the power unit are packaged with the control circuit board, so that the gas detection main body, the microprocessor, the communication device, and the power unit are integrated with and electrically connected to the control circuit board, wherein the power unit is electrically connected to the battery for providing power for operating the gas detection main body, wherein the microprocessor receives the gas detection data to perform a computation processing to the gas detection data, and the microprocessor controls the gas-guiding unit to start or to stop operation, and wherein the communication device receives the gas detection data from the microprocessor for transmitting the gas detection data to an external device, so that the external device obtains information and a notification alert of the gas detection data. Mou illustrates the particle monitoring module 3, the processor 51, and the communication component 52 on a circuit board (Fig. 8), which are enclosed with a battery 53 and the structures that may be inferred to be equivalent to the claimed power unit, as discussed above (p. 13, “Referring to FIG. 8” and “The external device”) so it would have been prima facie obvious to provide the gas detection main body, the microprocessor, the communication device, and the power unit packaged with the control circuit board, so that the gas detection main body, the microprocessor, the communication device, and the power unit are integrated with and electrically connected to the control circuit board. The battery 53 is for providing stored energy and outputting electrical energy (p. 13, “The external device”) so it would have been prima facie obvious to provide a power unit that is electrically connected to the battery for providing power for operating the gas detection main body. Sharma teaches that the dust sensor 57 detects particulate matter ([0084]) (i.e., the gas detection main body detects the guided gas inside the housing so as to obtain the gas detection data), and Mou teaches that results of a gas sensor 23 (p. 10, “The sensor 23”) are converted into a monitoring data storage controlled by the processor 51, so it would have been prima facie obvious to provide a microprocessor that receives gas detection data to perform a computation to process the gas detection data. Mou teaches that the converted monitoring data can be sent by the communication component 52 (p. 13, “Referring to FIG. 8”), and the external device 6 receives the data and can display the data and an alarm indication (p. 13, “The external device”) (i.e., the communication device receives the gas detection data from the microprocessor for transmitting the gas detection data to an external device), so it would have been prima facie obvious to provide an external device that obtains information and a notification alert of the gas detection data.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Sharma in view of Mou, as applied to claim 2 above, and further in view of Yeung et al. (US 2017/0275472 A1, hereinafter “Yeung”). Sharma in view of Mou does not explicitly disclose that a purifying factor layer having chlorine dioxide is coated on the filtering unit for suppressing viruses and bacteria in the gas. Yeung discloses biocidal materials for incorporation into filtration systems ([0033]-[0034]). Yeung teaches that a HEPA filter coated with polymer-encapsulated chlorine dioxide capsules exhibit wide-spectrum antimicrobial activities against bacteria and viruses ([0063]). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing a purifying factor layer having chlorine dioxide is coated on the filtering unit for suppressing viruses and bacteria in the gas as taught by Yeung because a HEPA filter coated with polymer-encapsulated chlorine dioxide capsules exhibit wide-spectrum antimicrobial activities against bacteria and viruses (Yeung, [0063]).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Sharma in view of Mou, as applied to claim 2 above, and further in view of Kim et al. (US 2011/0086118 A1, hereinafter “Kim”). Sharma in view of Mou does not explicitly disclose an herbal protection coating layer consisting of Rhus chinensis Mill extracts from Japan and Ginkgo biloba extracts is coated on the filtering unit to form an herbal protection anti-allergy filter for efficiently performing anti-allergy function and destroying cell surface proteins of influenza viruses passing through the herbal protection anti-allergy filter. Kim discloses an air filter comprising the composition for the prophylaxis of influenza viral infection ([0069]), wherein the filter is coated with the composition (claim 15), and wherein the composition can include Rhus chimensis sumac ([0042]) and/or Ginkgo bioloba materials (claim 5; [0043]). Kim teaches that the composition may enable the capture and inactivation of airborne viruses and may lead to the effective prevention of influenza infection ([0020], [0030]). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing an herbal protection coating layer consisting of Rhus chinensis Mill extracts from Japan and Ginkgo biloba extracts is coated on the filtering unit as taught by Kim because a coating of Rhus chimensis sumac (Kim, [0042]) and/or Ginkgo bioloba materials (Kim, claim 5; [0043]) may enable the capture and inactivation of airborne viruses and may lead to the effective prevention of influenza infection (Kim, [0020], [0030]). Regarding the limitations of “to form an herbal protection anti-allergy filter for efficiently performing anti-allergy function and destroying cell surface proteins of influenza viruses passing through the herbal protection anti-allergy filter,” Kim does not explicitly disclose efficiently performing anti-allergy function and destroying cell surface proteins of influenza viruses passing through the herbal protection anti-allergy filter. However, since the coating of Kim is made by the same method and using the same ingredients as those claimed, absent evidence to the contrary, the skilled practitioner would expect that the coating of Kim would have the same properties as the coating of claim 5. Specifically, it is asserted that the coating of Kim is capable of efficiently performing anti-allergy function and destroying cell surface proteins of influenza viruses passing through the herbal protection anti-allergy filter. See MPEP 2112 (III). Furthermore, since the filter taught by Sharma in view of Mou and Kim is a HEPA filter, it is interpreted as being able to filter allergens to some extent, so it is considered to perform an anti-allergy function. Regarding the limitation of “extracts from Japan,” per MPEP, it is noted that Rhus chinensis Mill extracts from Japan in claim 5is a product-by-process claim which is not limited to the manipulations of the recited step (i.e., the sourcing from Japan), but the structure (i.e., physical and chemical properties) implied by the step. During the examination of the claimed invention, the Rhus chinensis Mill extracts recited in claim 5 is only limited (characterized) by its chemical composition and is not limited by the means by which it is supplied. See MPEP 2113. Regarding the suffix of Rhus chinensis “Mill,” the Rhus chinensis of Kim is interpreted as equivalent to the claimed substance, with the difference being a matter of preferred nomenclature.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Sharma in view of Mou, as applied to claim 2 above, and further in view of Sagula et al. (EP 3473941 A1, hereinafter “Sagula”). Sharma in view of Mou does not explicitly disclose a layer of silver ions that is coated on the filtering unit for suppressing viruses and bacteria in the gas. Sagula discloses an air purification unit comprising filters (Abstract). Sagula teaches the painting (i.e., coating) of silver ions via silver nitrate onto a filter ([0020], [0025], [0034]) can provide an antibacterial effect ([0031]). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing a layer of silver ions that is coated on the filtering unit for suppressing bacteria in the gas as taught by Sagula because the painting (i.e., coating) of silver ions via silver nitrate onto a filter (Sagula, [0020], [0025], [0034]) can provide an antibacterial effect (Sagula, [0031]). Regarding the limitation of “for suppressing viruses,” Sagula does not explicitly disclose a layer for suppressing viruses. However, since the coating of Sagula is made by the same method and using the same ingredients as those claimed, absent evidence to the contrary, the skilled practitioner would expect that the coating of Sagula would have the same properties as the coating of claim 6. Specifically, it is asserted that the coating of Sagula is capable of suppressing viruses. See MPEP 2112 (III).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Sharma in view of Mou, as applied to claim 1 above, and further in view of Huang (CN107310351A, hereinafter “Huang”) and Kanamori et al. (US 2011/0042481 A1, hereinafter “Kanamori”), and as evidenced by Deasy (US 2015/0238041 A1, hereinafter “Deasy”). Sharma discloses a housing bottom portion that is of a round cylinder structure (e.g., Fig. 5). However, Sharma in view of Mou does not explicitly disclose that (i) a diameter of the housing is in a range between 40 mm and 120 mm, or (ii) a height of the housing is in a range between 100 mm and 300 mm. Regarding (i), Huang discloses an air purifier comprising a fan, a filter, an air inlet, and an air outlet (Fig. 1; [0020]). Huang teaches that the air purifier can be installed in a cup holder space ([0007]) so that it can be mounted in a vehicle ([0002]). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing (i) a diameter of the housing is in a range between 40 mm and 120 mm as taught by Huang because (i) an air purifier can be sized to fit in a vehicle cup holder so that it is mountable in a vehicle (Huang, [0002], [0007]), (ii) a diameter of 75 mm was known in the art to fit in most cup holders, as evidenced by Deasy ([0221]), and (iii) it would have been prima facie obvious to size an air purifier to an optimal diameter in view of the teachings of Sharma in view of Mou and Huang. Regarding (ii), Kanamori discloses an atomizing apparatus for humidification ([0008]) to be used in a car cup holder ([0047]). Kanamori teaches that such an apparatus can be 10 cm in diameter and 20 cm in height ([0047]) (i.e., 100 mm and 200 mm, respectively). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou and Huang by providing (ii) a height of the housing is in a range between 100 mm and 300 mm as taught by Kanamori because (i) Huang teaches that an air purifier can be mounted in a cup holder but does not provide guidance for an appropriate height (Huang, [0007]), (ii) a suitable height for an air treatment device was known to be 200 mm (Kanamori, [0047]), and (iii) it would have been prima facie obvious to size an air purifier to an optimal height in view of the teachings of Sharma in view of Mou, Huang, and Kanamori.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Sharma in view of Mou, as applied to claim 1 above, and further in view of Huang. Sharma in view of Mou does not explicitly disclose that the housing is portable and is disposed in an in-car receiving space, and wherein the in-car receiving space is one of a cup holder, a central console box, a trim platform near a front windshield, and a trim platform near a rear windshield. Huang discloses an air purifier comprising a fan, a filter, an air inlet, and an air outlet (Fig. 1; [0020]). Huang teaches that the air purifier can be installed in a cup holder space or hung in the interior ([0007]) so that it can be mounted in a vehicle ([0002]). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing a housing that is portable and is disposed in an in-car receiving space, and wherein the in-car receiving space is a cup holder as taught by Huang because (i) an air purifier can be sized to fit in a vehicle cup holder so that it is mountable in a vehicle, or it can be hung in a vehicle (Huang, [0002], [0007]), (ii) a small air purifier that can be hung or place in a cup holder in a car can be regarded as portable, which is itself an advantageous quality.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Sharma in view of Mou, as applied to claim 1 above, and further in view of Lang et al. (DE102017001202A1, hereinafter “Lang”). Sharma in view of Mou does not explicitly disclose that the housing is embedded in an in-car space, and wherein the in-car space is one of a speaker, an air conditioner outlet, a car door trim, an in-car trim, a seat, a headlining, a steering wheel, a receiving box, a rearview mirror, a sun visor, and a central console box. Lang discloses an air cleaning device for cleaning the air in an interior of a motor vehicle ([0001]). Lang teaches that an air cleaning device can be integrated into a center console of a motor vehicle ([0012]). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing a housing that is embedded in an in-car space, and wherein the in-car space is a central console box as taught by Lang because (i) an air cleaning device can protect the occupants of a vehicle from external influences such as air pollution or unpleasant odors (Lang, [0002]) and (ii) such a device can be integrated into a center console (Lang, [0012]).
Double Patenting The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b). The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp. REJECTION 1 Claims 1-2, 12, and 15-19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5 and 18-19 of copending Application No. 17/360103 in view of Sharma et al. (WO 2018/112507 A1). Regarding claim 1, claim 1 of the copending application discloses a main body (i.e., a housing) with an inlet and an outlet, a purification unit (i.e., purification module), a gas guider (i.e., a gas-guiding unit), and a gas detection module. Claim 5 recites a gas detection module with a controlling circuit board, a gas detection main part, a microprocessor and a communicator (i.e., a control circuit board, a gas detection main body, a microprocessor, a communication device). The limitations of claim 1 relating to the function of the gas-guiding unit are obvious from the teaching of the gas guider along with the inlet and outlet. The copending application does not suggest a gas detection module that performs a computation processing to the gas detection data obtained by the gas detection module so as to control the gas-guiding unit to start or to stop operation. However, Sharma teaches a controller 52 that may be configured to automatically activate the fan 18 of the apparatus if detects particles and the dew point exceeds a predetermined threshold ([0090]), which would be obvious to provide to advantageously conserve battery power. Sharma also discloses a battery a battery 54 ([0084]), which would require a power unit to use the battery’s power, which would be obvious to advantageously provide operation without a power cord. Regarding claim 15, claims 18 and 19 of the copending application recite the claimed features of the gas detection module of claim 15. Furthermore, claims 2, 12, 16, and 17 are made obvious by the copending application’s claims 1, 14, 19, and 20 respectively. This is a provisional nonstatutory double patenting rejection. REJECTION 2 Claims 1, 2, 3, 7, 11, 12, 13, and 15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 3, 7, 8, 9, and 18, of copending Application No. 17/161019 in view of Sharma and Mou et al. (TWM567364U). Regarding claim 1, claim 1 of the copending application discloses a main body (i.e., a housing) with an inlet and an outlet, a purification module, a gas guider (i.e., a gas-guiding unit), and a gas detection module. The copending application does not claim a control circuit board, a gas detection main body, a microprocessor, a communication device, a power unit, and a battery, or a gas detection module that performs a computation processing to the gas detection data obtained by the gas detection module so as to control the gas-guiding unit to start or to stop operation. But Sharma teaches a PCB 56 ([0084]) (a control circuit board), the housing of the sensors 55 (Fig. 9) (i.e., a gas detection main body), a controller 52 ([0084]) (i.e., a microprocessor), and a battery 54 ([0084]), and a communication device and a power unit are made obvious by Mou, which teaches a communication component 52 (p. 13, “Referring to FIG. 8”) that can communicate with an external device 6 (p. 8, “The external device”), and which shows power unit-like features in Fig. 2. Sharma further teaches a controller 52 that may be configured to automatically activate the fan 18 of the apparatus if detects particles and the dew point exceeds a predetermined threshold ([0090]), which would be obvious to provide to advantageously conserve battery power. Furthermore, claims 2, 3, 7, 11, 12, 13, and 15 are made obvious by the copending application’s claims 1, 2, 3, 7, 8, 9, and 18, respectively. This is a provisional nonstatutory double patenting rejection. REJECTION 3 Claims 1, 2, 3, 4, 5, 6, 7, 9, 10, 12, 13, and 15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 3, 4, 5, 6, 7, 9, 8, 11, 11, and 15 of copending Application No. 17/165398 in view of Sharma and Mou. Regarding claim 1, the limitations of claim 1 are not patentable over claim 1 of the copending application in view of Sharma and Mou, as in rejection 2, above. Furthermore, claims 2, 3, 4, 5, 6, 7, 9, 10, 12, 13, and 15 are made obvious by the copending application’s claims 2, 3, 4, 5, 6, 7, 9, 8, 11, 11, and 15, respectively. This is a provisional nonstatutory double patenting rejection.
Additional Claim Objections Claims 15-17 and 19 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Allowable Subject Matter The following is a statement of reasons for the indication of allowable subject matter: A thorough search for pertinent prior art did not locate any prior art that discloses or suggests the invention recited in claims 15-17 and 19. The concept of a gas detection and purification device (claim 1) comprising a detection main body that comprises a gas inlet groove that has a gas inlet through hole and two lateral walls, wherein a light permissive window is opened on a lateral wall of the gas inlet groove, and is in communication with the laser configuration region, a gas-guiding component loading region has a positioning bump, and an outer cap a side plate that has a gas inlet opening and a gas outlet opening (claim 15); or having a housing of a rectangular structure, and wherein a length of the housing is in a range between 40 mm and 120 mm, a width of the housing is in a range between 40 mm and 120 mm, and a height of the housing is in a range between 100 mm and 300 mm (claim 19) is considered to define patentable subject matter over the prior art. The closest prior art is regarded to be Sharma et al. (WO 2018/112507 A1), which discloses an apparatus 10 for the filtering and sanitizing of air (Figs. 5, 6; [0067]) comprising a particle sensor 57 (Fig. 9; [0084]) (i.e., a gas detection and purification device). However, Sharma does not disclose a gas detection main body that comprises a gas inlet groove that has a gas inlet through hole and two lateral walls, wherein a light permissive window is opened on a lateral wall of the gas inlet groove, and is in communication with the laser configuration region, a gas-guiding component loading region has a positioning bump, and an outer cap a side plate that has a gas inlet opening and a gas outlet opening. Mou et al. (TWM567364U) discloses a particle monitoring module 3 that has a receiving slot 331 and a monitoring channel 332 (analogous to a gas inlet groove), a space in which a laser emitter 35 is disposed (analogous to a laser configuration region), and a second actuator 36 (analogous to a gas-guiding component) (Fig. 9; p. 10, “Referring to FIG. 1D”). However, Mou does not suggest a light permissive window is opened on a lateral wall of the gas inlet groove, and is in communication with the laser configuration region, a gas-guiding component loading region has a positioning bump, or an outer cap a side plate that has a gas inlet opening and a gas outlet opening. Regarding claim 19, Sharma does not suggest a rectangular structure or the dimensions claimed, and it would not have been obvious to the person skilled in the art to modify Sharma to provide the claimed structure and dimensions. Claim 19 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Citation of Pertinent Prior Art The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Hyun (KR 101895978 B1) discloses a device that provides a fine dust purifying function (Abstract), wherein when the fine dust concentration measured by a fine dust measuring sensor S1 reaches a value that meets a preset 'normal' or 'good' reference, the controller 50 stops the operation of a fan unit 60 (p. 7, “On the other hand”).
Conclusion Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Gabriel Gitman whose telephone number is (571) 272-7934. The Examiner can normally be reached on Monday-Thursday: 7:00 AM to 5:30 PM (EST). If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s supervisor, In Suk Bullock can be reached on 571-272-5954. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. Information regarding the status of an application may be obtained from Patent Center. Status information for published applications may be obtained from Patent Center. Status information for unpublished applications is available through Patent Center. For more information about Patent Center, see https://patentcenter.uspto.gov/. Should you have questions on access to Patent Center, 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. /GABRIEL E GITMAN/Examiner, Art Unit 1772 | 2022-09-10T10:53:25 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This is a first action on the merits of the application. Claims 1-21 are pending. Specification The disclosure is objected to because of the following informalities: [0032]: In line 4 of p. 24, “Benulli’s” appears to be a misspelling of “Bernoulli's.” Appropriate correction is required. Claim Objections Claims 1-2, 9, and 14-16 are objected to because of the following informalities: Claim 1: In the last paragraph, “wherein the gas detection module performs a computation processing to the gas detection data obtained by the gas detection module” appears to be a misstatement of “wherein the gas detection module performs a computation process the gas detection data obtained by the gas detection module” or similar. In line 3 of the same paragraph, Applicant is respectfully advised to provide the conjunction “and” to separate the two “wherein” clauses (i.e., and wherein when the gas-guiding unit is in operation). Applicant is also respectfully advised to begin a new paragraph with this clause to improve readability.",
"Claim 2: In both instances, Applicant is respectfully advised to amend “a herbal” to “an herbal.” In line 4, Applicant is respectfully advised to amend “for efficiently performing anti-allergy function” to “for efficiently performing an anti-allergy function.” Claim 9: In line 6, “the dust-collecting plate” appears to be a misstatement of “the at least one dust-collecting plate.” See line 3. Claim 14: In lines 9-10, “the gas detection data to perform a computation processing to the gas detection data” appears to be a misstatement of “the gas detection data to perform a computation to process Claim 15: In line 10, “two lateral walls, wherein a light permissive window is opened on the lateral wall” appears to be a misstatement of “two lateral walls, wherein a light permissive window is opened on a lateral wall.” Line 15 ends with “and.” Since this “and” appears in the middle of a list of claim elements, it appears to be superfluous. Claim 16: In line 14, “reciprocatingly when the piezoelectric plate is applied with the voltage” appears to be a misstatement of “reciprocatingly when the actuation body is applied with the voltage.” See line 8: “reciprocatingly when the actuation body is applied with a voltage.” Appropriate correction is required.",
"Claim Interpretation The following is a quotation of 35 U.S.C. 112(f): (f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph: An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.",
"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.",
"Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function. 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. 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. Such claim limitation(s) is/are: gas-guiding unit in claim 1. Claim limitation “gas-guiding unit” has/have been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because it uses/they use a generic placeholder “unit” coupled with functional language “gas-guiding . . . guides the gas into the gas detection and purification device . . .” without reciting sufficient structure to achieve the function. Furthermore, the generic placeholder is not preceded by a structural modifier. A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C.",
"112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitation: a fan or an actuation pump ([0015]). Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C.",
"112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. 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 5, 10 and 19 are rejected under 35 U.S.C.",
"112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claim 5: The term “efficiently” is a relative term which renders the claim indefinite. The term “efficiently” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. For the purposes of examination, any anti-allergy function will be interpreted as efficient. Claim 10: The term “high” in “the phrase “high voltage” (line 6) is a relative term which renders the claim indefinite. The term “high” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.",
"In line 7, “the high-voltage plasma column” lacks sufficient antecedent basis. For the purposes of examination, “a high voltage” will be interpreted as met by any voltage, and “the high-voltage plasma column” will be interpreted as “a high-voltage plasma column.” Claim 19: In line 2, the claim recites, “a rectangular cylinder structure.” It is unclear what is meant by “a rectangular cylinder structure.” The online Cambridge dictionary defines a cylinder as “a solid or hollow tube with long straight sides and two circular ends the same size.” The term “rectangular” does not appear to be compatible with the definition of a cylinder.",
"[0008] uses the term and refers to Fig. 1B, but this figure is two-dimensional, so it does not clarify the meaning of the term. For the purposes of examination, “a rectangular cylinder structure” will be interpreted as a rectangular structure. 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. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. Claims 1-3 and 7-14 are rejected under 35 U.S.C. 103 as being unpatentable over Sharma et al. (WO 2018/112507 A1, hereinafter “Sharma”) in view of Mou et al. (TWM567364U, hereinafter “Mou”). Regarding claim 1, Sharma discloses an apparatus 10 for the filtering and sanitizing of air (Figs. 5, 6; [0067]) comprising a particle sensor 57 (Fig. 9; [0084]) (i.e., a gas detection and purification device, noting that the gas detection module of the present application obtains gas detection data ([0021]) and includes a particulate sensor ([0022]) which obtains particle size and concentration data ([0024], last two sentences, so a particle sensor of Sharma is interpreted as a gas detection device) comprising: a housing assembly 12, an air inlet 14, and an air outlet 16 (Fig.",
"1; [0067]) (i.e., a housing having at least one gas inlet and at least one gas outlet), and an air passageway between the inlet and the outlet (Fig. 6; [0079], noting the arrows at the top and bottom of Fig. 6) (i.e., wherein a gas channel is disposed between the at least one gas inlet and the at least one gas outlet); a HEPA filter 20 ([0086]) (i.e., a purification module disposed in the gas channel so as to filter a gas guided into the gas channel); a fan 18 above the filter 20 (Fig. 5, noting that the fan is mislabeled in Fig. 6; [0081]) (i.e., a gas-guiding unit disposed in the gas channel and disposed at one side of the purification module, wherein the gas-guiding unit guides the gas into the gas detection and purification device from the at least one gas inlet, guides the gas to pass through the purification module for performing filtering and purifying, and discharges the gas from the at least one gas outlet into an environment outside the gas detection and purification device); and sensors 55 including the particle or dust sensor 57 (Fig.",
"9; [0084]) (i.e., a gas detection module disposed in the gas channel), wherein the sensors/gas detection module comprises a PCB 56 ([0084]) (a control circuit board), the housing of the sensors 55 (Fig. 9) (i.e., a gas detection main body), a controller 52 ([0084]) (i.e., a microprocessor), and a battery 54 ([0084]), and wherein the sensor provides a signal indicative of the air quality to the controller 52 ([0085]) (i.e., wherein the gas detection module is provided for detecting the gas guided into the housing to obtain gas detection data); and wherein the controller 52 may be configured to automatically activate the fan 18 of the apparatus if detects particles and the dew point exceeds a predetermined threshold ([0090]) (i.e., wherein the gas detection module performs a computation processing to the gas detection data obtained by the gas detection module so as to control the gas-guiding unit to start . . . operation), wherein the fan is arranged to urge air through the air passageway between the air inlet and the air outlet ([009]) (i.e., wherein when the gas-guiding unit is in operation, the gas-guiding unit guides the gas into the gas detection and purification device from the at least one gas inlet, guides the gas to pass through the purification module for performing filtering and purifying, and discharges the gas from the at least one gas outlet into the environment outside the gas detection and purification device to obtain a purified gas), releasing filtered air from the air outlet 16 ([0068]) (i.e., whereby the gas detection and purification device provides a user with the purified gas).",
"However, Sharma does not explicitly disclose (i) a communication device, or (ii) a power unit. Regarding (i), Mou discloses a gas detecting device (p. 8, “Please refer to FIG. 1A”) comprising a purifying gas module 4(p. 11, last para.) (i.e., a gas detection and purification device) attached to a circuit board (Fig. 3A; p. 8, “Please refer to FIG. 3A”; Fig. 8, showing a circuit board at arrow 5), a particle monitoring module 3 (Fig. 8; p. 8, “Please refer to FIG.",
"1A”), a processor 51, and a battery 53 (Fig. 8; p. 13, “Referring to FIG. 8”) (i.e., a control circuit board, a gas detection main body, a microprocessor, and a battery). Mou teaches a communication component 52 (p. 13, “Referring to FIG. 8”) that can communicate with an external device 6 (p. 8, “The external device”) to provide monitoring information for immediate access to information to alert people in the environment of about exposure to gases (p. 8, “In summary”).",
"Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma by providing (i) a communication device as taught by Mou because a communication device can provide environmental information to an external device (Mou, “In Summary”). Regarding (ii), Mou shows a PCB-like structure connecting the battery 53 to the particle monitoring module 3 via structures on either side of the battery (Fig. 2), which the skilled practitioner would infer are for providing for the transmission of power from the battery, so Mou implicitly discloses a power unit, making the providing of a power unit prima facie obvious, noting that the instant application describes the power unit by its function ([0021]: “The power unit 4e is used to provide power for operating the gas detection main body 4b .",
". . and the power unit 4e is electrically connected to the battery 4f for obtaining the power.”). Furthermore, it would have been prima facie obvious in a battery-powered device to provide conductive and/or control structures for the transmission of power in the battery to subsystems requiring power. Regarding claims 2 and 3, Sharma discloses a HEPA filter 20 ([0086]) (i.e., the purification module is a filtering unit; the filtering unit is a high-efficiency particulate air (HEPA) filter). Regarding claim 7, Sharma discloses a HEPA filter 20 ([0086]) (i.e., the purification module consists of the filtering unit).",
"However, Sharma in view of Mou does not explicitly disclose that the purification module also consists of a photocatalyst unit, wherein the photocatalyst unit comprises a photocatalyst and an ultraviolet light, and the photocatalyst is excited under illumination of the ultraviolet light so as to degrade the gas guided into the gas detection and purification device, thereby filtering and purifying the gas. Mou discloses a filter with a photocatalyst unit comprising a photocatalyst 45b and an ultraviolet lamp 45c (Fig. 12B; p. 11, bottom) (i.e., the purification module consists of a photocatalyst unit; the photocatalyst unit comprises a photocatalyst and an ultraviolet light), and that the photocatalyst 45b is irradiated by the ultraviolet lamp, light energy is converted into a chemical energy to decompose the gas and sterilize the gas to achieve the effect of purifying the gas (p. 11, bottom through p. 12, top) (i.e., the photocatalyst is excited under illumination of the ultraviolet light so as to degrade the gas guided into the gas detection and purification device, thereby filtering and purifying the gas). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing a purification module that consists of a photocatalyst unit, wherein the photocatalyst unit comprises a photocatalyst and an ultraviolet light, and the photocatalyst is excited under illumination of the ultraviolet light so as to degrade the gas guided into the gas detection and purification device, thereby filtering and purifying the gas as taught by Mou because this configuration can achieve the effect of purifying a gas (Mou, p. 11, bottom through p. 12, top).",
"Regarding claim 8, Sharma discloses a HEPA filter 20 ([0086]) (i.e., the purification module consists of the filtering unit). However, Sharma in view of Mou does not explicitly disclose that the purification module also consists of a photo plasma unit, wherein the photo plasma unit comprises a nanometer optical tube, and wherein the gas is illuminated by a light of the nanometer optical tube to degrade volatile organic gases in the gas, so that the gas guided into the gas detection and purification device is purified.",
"Mou discloses a filter with a photoplasma unit that comprises a nanometer light tube 45d (p. 12, lines 3-8) (i.e., a nanometer optical tube) that irradiates molecules in the gas to decompose them into a highly oxidative photoplasma having an ion gas stream that destroys organic molecules to achieve the effect of purifying the gas of, for example, VOCs (p. 12, lines 3-8) (i.e., the gas is illuminated by a light of the nanometer optical tube to degrade volatile organic gases in the gas, so that the gas guided into the gas detection and purification device is purified).",
"Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing a purification module that also consists of a photo plasma unit, wherein the photo plasma unit comprises a nanometer optical tube, and wherein the gas is illuminated by a light of the nanometer optical tube to degrade volatile organic gases in the gas, so that the gas guided into the gas detection and purification device is purified as taught by Mou because this configuration can purify a gas of, for example, VOCs (Mou, p. 12, lines 3-8). Regarding claim 9, Sharma discloses a HEPA filter 20 ([0086]) (i.e., the purification module consists of the filtering unit).",
"However, Sharma in view of Mou does not explicitly disclose that the purification module also consists of a negative ion unit, wherein the negative ion unit comprises at least one electrode wire, at least one dust-collecting plate, and a boost power supply, wherein the at least one electrode wire discharges electricity under a high voltage so that particulates in the gas guided into the gas detection and purification device are adhered on the dust-collecting plate, and the gas is filtered and purified. Mou discloses a filter with an anion unit with dust collecting plates 45f having a negative electric charge onto which particles attach for purification (Fig. 12D, p. 12, lines 10-17) (i.e., a negative ion unit; at least one dust-collecting plate; particulates in the gas guided into the gas detection and purification device are adhered on the dust-collecting plate, and the gas is filtered and purified), and having electrode wires 45e (i.e., at least one electrode wire) and a boosting power supply 45g (i.e., a boost power supply) (p. 12, lines 10-17), wherein the electrode wires provide a high voltage discharge (p. 12, lines 10-17) (i.e., the at least one electrode wire discharges electricity under a high voltage).",
"Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing a negative ion unit, wherein the negative ion unit comprises at least one electrode wire, at least one dust-collecting plate, and a boost power supply, wherein the at least one electrode wire discharges electricity under a high voltage so that particulates in the gas guided into the gas detection and purification device are adhered on the dust-collecting plate, and the gas is filtered and purified as taught by Mou because this configuration can purifying gas of dust collected on the at least one plate (Mou, p. 12, lines 10-17). Regarding claim 10, Sharma discloses a HEPA filter 20 ([0086]) (i.e., the purification module consists of the filtering unit). However, Sharma in view of Mou does not explicitly disclose that the purification module also consists of a plasma unit, wherein the plasma unit comprises an electric-field first protection mesh, an absorbing mesh, a high-voltage discharge electrode, an electric-field second protection mesh, and a boost power supply, and wherein the boost power supply provides the high-voltage discharge electrode with a high voltage so as to generate a high-voltage plasma column, and plasma in the high-voltage plasma column degrades viruses or bacteria in the gas guided into the gas detection and purification device.",
"Mou discloses a filter with a plasma ion unit (Fig. 12E; p. 12, lines 19-29) (i.e., a plasma unit) including an electric field upper protection net 45h (i.e., an electric-field first protection mesh), an adsorption filter 45i (i.e., an absorbing mesh), a high voltage discharge electrode 45j (i.e., a high-voltage discharge electrode), an electric field lower protection net 45k (i.e., an electric-field second protection mesh), and a boost power supply 45g, wherein the boost power supply 45g provides the high-voltage discharge electrode 45j with a high-voltage discharge to generate a high-voltage plasma column (i.e., the boost power supply provides the high-voltage discharge electrode with a high voltage so as to generate a high-voltage plasma column) to take away the hydrogen of virus and bacterial surface proteins (p. 12, lines 19-29) (i.e., plasma in the high-voltage plasma column degrades viruses or bacteria in the gas guided into the gas detection and purification device).",
"Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing a plasma unit, wherein the plasma unit comprises an electric-field first protection mesh, an absorbing mesh, a high-voltage discharge electrode, an electric-field second protection mesh, and a boost power supply, and wherein the boost power supply provides the high-voltage discharge electrode with a high voltage so as to generate a high-voltage plasma column, and plasma in the high-voltage plasma column degrades viruses or bacteria in the gas guided into the gas detection and purification device as taught by Mou because this configuration can decompose viruses and bacteria surface proteins, purifying the gas (Mou, p. 12, lines 19-30). Regarding claim 11, Sharma teaches a fan 18 (Fig.",
"5; [0081]) (i.e., the gas-guiding unit is a fan). Regarding claim 12, Sharma in view of Mou does not explicitly disclose a gas-guiding unit that is an actuation pump. Mou teaches a gas pump that is an actuator 24 (Figs. 4A-5A) (p. 8, “Referring to FIG. 4A”) (i.e., an actuation pump). Mou teaches that such an actuator can quickly and stably introduce gas (p. 2, “The main purpose”). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing a gas-guiding unit that is an actuation pump as taught by Mou because an actuator can quickly and stably introduce gas (Mou, p. 2, “The main purpose”). Regarding claim 13, Mou teaches that the actuator/actuation pump comprises an air inlet plate 241 with at least one air inlet hole 241a (Figs. 4A,B, 5A,B, p. 8, “Referring to FIG.",
"4A”) (i.e., an inlet plate having at least one inlet hole), bus bar holes 241b and a confluence chamber 241c (i.e., at least one convergence channel and a convergence chamber), wherein the air inlet holes 241a are for introducing air to the actuator (Fig. 5A, arrows at sides) (i.e., wherein the at least one inlet hole is used to guide the gas outside the actuation pump to flow therein), the four air inlet holes 241a respectively penetrate the four bus bar holes 241b (p. 8, “Referring to FIG.",
"4A”) (i.e., the at least one inlet hole correspondingly penetrates the at least one convergence channel), and the bus bar holes 241b merge to the confluence chamber 241c (i.e., the at least one convergence channel is converged at the convergence chamber, so that the gas guided from the at least one inlet hole is converged at the convergence chamber) (Fig. 5B, arrows at 241b; p. 8, “Referring to FIG. 4A”); a resonant/resonator plate/piece 242 combined with the air inlet plate 241 (p. 9, “Continuing to refer to FIG. 5A”) (i.e., a resonance sheet attached to the inlet plate) that has a hollow hole 242a at its center corresponding to the confluence chamber 241c, a movable portion 242b, and a fixing portion 242c (p. 8, “The resonator piece 242”) (i.e., wherein the resonance sheet has a perforation, a movable portion, and a fixed portion, wherein the perforation is located at a center portion of the resonance sheet and corresponds to the convergence chamber of the inlet plate), wherein the movable portion 242b is provided on the outer peripheral portion of the resonance piece 242 opposed to the confluence chamber 241c (p. 8, “The resonator piece 242”) (i.e., the movable portion is disposed at a periphery of the perforation and is disposed at a portion opposite to the convergence chamber), and the fixing portion 242c is disposed at an outer periphery of the resonator piece 242 (e.g., Fig.",
"5A) and is combined with the intake plate 241 (p. 9, “Continuing to refer to FIG. 5A,” first two lines) (i.e., the fixed portion is disposed at an outer periphery of the resonance sheet and attached to the inlet plate); a piezoelectric actuator 243 that is combined with the resonance piece 242 (p. 9, “Further”) (i.e., a piezoelectric actuator attached on the resonance sheet and disposed correspondingly to the resonance sheet), wherein the piezoelectric actuator 243 includes a suspension plate 243a that is a square, the suspension plate 243a being caused to bend and vibrate (Fig. 4B; p. 9, lines 1-2, “Further”) (i.e., wherein the piezoelectric actuator comprises: a suspension plate having a square shape, wherein the suspension plate is capable of bending and vibrating); an outer frame 243b disposed around the circumference of the suspension plate 243a (p. 9, line 3-4) (i.e., an outer frame disposed around a periphery of the suspension plate); at least one connecting portion 243c to provide a supporting force for elastically supporting the suspension plate 243a (p. 9, lines 5-6) (i.e., at least one supporting element connected between the suspension plate and the outer frame to provide a flexible support for the suspension plate); a piezoelectric element 243d (p. 9, lines 1-2) having a side length that is less than a side length of the suspension plate 243a (Fig.",
"5A) (i.e., a piezoelectric element having a side length, wherein the side length of the piezoelectric element is smaller than a suspension plate side length of the suspension plate) that is attached to the second surface 2432a of the suspension plate 243a (p. 9, “Further”) (i.e., the piezoelectric element is attached to a surface of the suspension plate), the piezoelectric actuator 243 is subjected to a driving voltage to generate a deformation to displaced downward the suspension plate 243a (p. 9, “5B to 5D”) so that it bends and vibrates (p. 9, “Further”) (i.e., so as to apply a voltage to drive the suspension plate to bend and vibrate); wherein a chamber spacing g is formed between a surface 2431a of the suspension plate 243a and the resonator piece 242 (p. 9, lines 1-3, “Continuing to refer”) (i.e., wherein a chamber space is formed between the resonance sheet and the piezoelectric actuator), wherein the chamber spacing g will affect the transmission effect of the first actuator 24 (p. 9, “Continuing) such that when the piezoelectric element is subjected to the voltage, air is sucked into the air inlet port 241a into the confluence chamber 241c via the bus bar hole 241b (p. 9, “5B to 5D”) (i.e., so that when the piezoelectric actuator is driven, the gas outside the actuation pump is guided into the actuation pump through the at least one inlet hole of the inlet plate, is converged at the convergence chamber via the at least one convergence channel), and flows through the hollow hole 242a/perforation of the resonance sheet (Fig.",
"5B, center arrow) so that the hollow hole flowing through the resonance piece generates a resonant transmission airflow by the piezoelectric actuator and the movable portion of the resonance piece (p. 14, 11 lines from the bottom) (i.e., by a resonance effect between the piezoelectric actuator and the movable portion of the resonance sheet). Regarding claim 14, Sharma also teaches that the controller 52 may activate the apparatus 10 or the fan 18 based on the sampled air quality ([0085], [0090]), so Sharma teaches a microprocessor that controls the gas-guiding unit to start or to stop operation. Mou teaches an external device that is a cloud system, a portable device, or a computer system (p. 16, lines 5-6 from bottom) (i.e., the external device is one selected from the group consisting of a cloud processing device, a mobile device, and a computer system). However, Sharma in view of Mou does not explicitly disclose that the gas detection main body, the microprocessor, the communication device, and the power unit are packaged with the control circuit board, so that the gas detection main body, the microprocessor, the communication device, and the power unit are integrated with and electrically connected to the control circuit board, wherein the power unit is electrically connected to the battery for providing power for operating the gas detection main body, wherein the microprocessor receives the gas detection data to perform a computation processing to the gas detection data, and the microprocessor controls the gas-guiding unit to start or to stop operation, and wherein the communication device receives the gas detection data from the microprocessor for transmitting the gas detection data to an external device, so that the external device obtains information and a notification alert of the gas detection data.",
"Mou illustrates the particle monitoring module 3, the processor 51, and the communication component 52 on a circuit board (Fig. 8), which are enclosed with a battery 53 and the structures that may be inferred to be equivalent to the claimed power unit, as discussed above (p. 13, “Referring to FIG. 8” and “The external device”) so it would have been prima facie obvious to provide the gas detection main body, the microprocessor, the communication device, and the power unit packaged with the control circuit board, so that the gas detection main body, the microprocessor, the communication device, and the power unit are integrated with and electrically connected to the control circuit board.",
"The battery 53 is for providing stored energy and outputting electrical energy (p. 13, “The external device”) so it would have been prima facie obvious to provide a power unit that is electrically connected to the battery for providing power for operating the gas detection main body. Sharma teaches that the dust sensor 57 detects particulate matter ([0084]) (i.e., the gas detection main body detects the guided gas inside the housing so as to obtain the gas detection data), and Mou teaches that results of a gas sensor 23 (p. 10, “The sensor 23”) are converted into a monitoring data storage controlled by the processor 51, so it would have been prima facie obvious to provide a microprocessor that receives gas detection data to perform a computation to process the gas detection data.",
"Mou teaches that the converted monitoring data can be sent by the communication component 52 (p. 13, “Referring to FIG. 8”), and the external device 6 receives the data and can display the data and an alarm indication (p. 13, “The external device”) (i.e., the communication device receives the gas detection data from the microprocessor for transmitting the gas detection data to an external device), so it would have been prima facie obvious to provide an external device that obtains information and a notification alert of the gas detection data. Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Sharma in view of Mou, as applied to claim 2 above, and further in view of Yeung et al.",
"(US 2017/0275472 A1, hereinafter “Yeung”). Sharma in view of Mou does not explicitly disclose that a purifying factor layer having chlorine dioxide is coated on the filtering unit for suppressing viruses and bacteria in the gas. Yeung discloses biocidal materials for incorporation into filtration systems ([0033]-[0034]). Yeung teaches that a HEPA filter coated with polymer-encapsulated chlorine dioxide capsules exhibit wide-spectrum antimicrobial activities against bacteria and viruses ([0063]). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing a purifying factor layer having chlorine dioxide is coated on the filtering unit for suppressing viruses and bacteria in the gas as taught by Yeung because a HEPA filter coated with polymer-encapsulated chlorine dioxide capsules exhibit wide-spectrum antimicrobial activities against bacteria and viruses (Yeung, [0063]). Claim 5 is rejected under 35 U.S.C.",
"103 as being unpatentable over Sharma in view of Mou, as applied to claim 2 above, and further in view of Kim et al. (US 2011/0086118 A1, hereinafter “Kim”). Sharma in view of Mou does not explicitly disclose an herbal protection coating layer consisting of Rhus chinensis Mill extracts from Japan and Ginkgo biloba extracts is coated on the filtering unit to form an herbal protection anti-allergy filter for efficiently performing anti-allergy function and destroying cell surface proteins of influenza viruses passing through the herbal protection anti-allergy filter. Kim discloses an air filter comprising the composition for the prophylaxis of influenza viral infection ([0069]), wherein the filter is coated with the composition (claim 15), and wherein the composition can include Rhus chimensis sumac ([0042]) and/or Ginkgo bioloba materials (claim 5; [0043]). Kim teaches that the composition may enable the capture and inactivation of airborne viruses and may lead to the effective prevention of influenza infection ([0020], [0030]).",
"Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing an herbal protection coating layer consisting of Rhus chinensis Mill extracts from Japan and Ginkgo biloba extracts is coated on the filtering unit as taught by Kim because a coating of Rhus chimensis sumac (Kim, [0042]) and/or Ginkgo bioloba materials (Kim, claim 5; [0043]) may enable the capture and inactivation of airborne viruses and may lead to the effective prevention of influenza infection (Kim, [0020], [0030]).",
"Regarding the limitations of “to form an herbal protection anti-allergy filter for efficiently performing anti-allergy function and destroying cell surface proteins of influenza viruses passing through the herbal protection anti-allergy filter,” Kim does not explicitly disclose efficiently performing anti-allergy function and destroying cell surface proteins of influenza viruses passing through the herbal protection anti-allergy filter. However, since the coating of Kim is made by the same method and using the same ingredients as those claimed, absent evidence to the contrary, the skilled practitioner would expect that the coating of Kim would have the same properties as the coating of claim 5. Specifically, it is asserted that the coating of Kim is capable of efficiently performing anti-allergy function and destroying cell surface proteins of influenza viruses passing through the herbal protection anti-allergy filter. See MPEP 2112 (III).",
"Furthermore, since the filter taught by Sharma in view of Mou and Kim is a HEPA filter, it is interpreted as being able to filter allergens to some extent, so it is considered to perform an anti-allergy function. Regarding the limitation of “extracts from Japan,” per MPEP, it is noted that Rhus chinensis Mill extracts from Japan in claim 5is a product-by-process claim which is not limited to the manipulations of the recited step (i.e., the sourcing from Japan), but the structure (i.e., physical and chemical properties) implied by the step. During the examination of the claimed invention, the Rhus chinensis Mill extracts recited in claim 5 is only limited (characterized) by its chemical composition and is not limited by the means by which it is supplied.",
"See MPEP 2113. Regarding the suffix of Rhus chinensis “Mill,” the Rhus chinensis of Kim is interpreted as equivalent to the claimed substance, with the difference being a matter of preferred nomenclature. Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Sharma in view of Mou, as applied to claim 2 above, and further in view of Sagula et al. (EP 3473941 A1, hereinafter “Sagula”). Sharma in view of Mou does not explicitly disclose a layer of silver ions that is coated on the filtering unit for suppressing viruses and bacteria in the gas. Sagula discloses an air purification unit comprising filters (Abstract). Sagula teaches the painting (i.e., coating) of silver ions via silver nitrate onto a filter ([0020], [0025], [0034]) can provide an antibacterial effect ([0031]). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing a layer of silver ions that is coated on the filtering unit for suppressing bacteria in the gas as taught by Sagula because the painting (i.e., coating) of silver ions via silver nitrate onto a filter (Sagula, [0020], [0025], [0034]) can provide an antibacterial effect (Sagula, [0031]).",
"Regarding the limitation of “for suppressing viruses,” Sagula does not explicitly disclose a layer for suppressing viruses. However, since the coating of Sagula is made by the same method and using the same ingredients as those claimed, absent evidence to the contrary, the skilled practitioner would expect that the coating of Sagula would have the same properties as the coating of claim 6.",
"Specifically, it is asserted that the coating of Sagula is capable of suppressing viruses. See MPEP 2112 (III). Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Sharma in view of Mou, as applied to claim 1 above, and further in view of Huang (CN107310351A, hereinafter “Huang”) and Kanamori et al. (US 2011/0042481 A1, hereinafter “Kanamori”), and as evidenced by Deasy (US 2015/0238041 A1, hereinafter “Deasy”). Sharma discloses a housing bottom portion that is of a round cylinder structure (e.g., Fig. 5). However, Sharma in view of Mou does not explicitly disclose that (i) a diameter of the housing is in a range between 40 mm and 120 mm, or (ii) a height of the housing is in a range between 100 mm and 300 mm. Regarding (i), Huang discloses an air purifier comprising a fan, a filter, an air inlet, and an air outlet (Fig.",
"1; [0020]). Huang teaches that the air purifier can be installed in a cup holder space ([0007]) so that it can be mounted in a vehicle ([0002]). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing (i) a diameter of the housing is in a range between 40 mm and 120 mm as taught by Huang because (i) an air purifier can be sized to fit in a vehicle cup holder so that it is mountable in a vehicle (Huang, [0002], [0007]), (ii) a diameter of 75 mm was known in the art to fit in most cup holders, as evidenced by Deasy ([0221]), and (iii) it would have been prima facie obvious to size an air purifier to an optimal diameter in view of the teachings of Sharma in view of Mou and Huang. Regarding (ii), Kanamori discloses an atomizing apparatus for humidification ([0008]) to be used in a car cup holder ([0047]). Kanamori teaches that such an apparatus can be 10 cm in diameter and 20 cm in height ([0047]) (i.e., 100 mm and 200 mm, respectively).",
"Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou and Huang by providing (ii) a height of the housing is in a range between 100 mm and 300 mm as taught by Kanamori because (i) Huang teaches that an air purifier can be mounted in a cup holder but does not provide guidance for an appropriate height (Huang, [0007]), (ii) a suitable height for an air treatment device was known to be 200 mm (Kanamori, [0047]), and (iii) it would have been prima facie obvious to size an air purifier to an optimal height in view of the teachings of Sharma in view of Mou, Huang, and Kanamori. Claim 20 is rejected under 35 U.S.C.",
"103 as being unpatentable over Sharma in view of Mou, as applied to claim 1 above, and further in view of Huang. Sharma in view of Mou does not explicitly disclose that the housing is portable and is disposed in an in-car receiving space, and wherein the in-car receiving space is one of a cup holder, a central console box, a trim platform near a front windshield, and a trim platform near a rear windshield. Huang discloses an air purifier comprising a fan, a filter, an air inlet, and an air outlet (Fig. 1; [0020]). Huang teaches that the air purifier can be installed in a cup holder space or hung in the interior ([0007]) so that it can be mounted in a vehicle ([0002]). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing a housing that is portable and is disposed in an in-car receiving space, and wherein the in-car receiving space is a cup holder as taught by Huang because (i) an air purifier can be sized to fit in a vehicle cup holder so that it is mountable in a vehicle, or it can be hung in a vehicle (Huang, [0002], [0007]), (ii) a small air purifier that can be hung or place in a cup holder in a car can be regarded as portable, which is itself an advantageous quality.",
"Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Sharma in view of Mou, as applied to claim 1 above, and further in view of Lang et al. (DE102017001202A1, hereinafter “Lang”). Sharma in view of Mou does not explicitly disclose that the housing is embedded in an in-car space, and wherein the in-car space is one of a speaker, an air conditioner outlet, a car door trim, an in-car trim, a seat, a headlining, a steering wheel, a receiving box, a rearview mirror, a sun visor, and a central console box. Lang discloses an air cleaning device for cleaning the air in an interior of a motor vehicle ([0001]). Lang teaches that an air cleaning device can be integrated into a center console of a motor vehicle ([0012]). Therefore, before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to modify the apparatus of Sharma in view of Mou by providing a housing that is embedded in an in-car space, and wherein the in-car space is a central console box as taught by Lang because (i) an air cleaning device can protect the occupants of a vehicle from external influences such as air pollution or unpleasant odors (Lang, [0002]) and (ii) such a device can be integrated into a center console (Lang, [0012]).",
"Double Patenting The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir.",
"1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b). The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens.",
"An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp. REJECTION 1 Claims 1-2, 12, and 15-19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5 and 18-19 of copending Application No. 17/360103 in view of Sharma et al. (WO 2018/112507 A1). Regarding claim 1, claim 1 of the copending application discloses a main body (i.e., a housing) with an inlet and an outlet, a purification unit (i.e., purification module), a gas guider (i.e., a gas-guiding unit), and a gas detection module. Claim 5 recites a gas detection module with a controlling circuit board, a gas detection main part, a microprocessor and a communicator (i.e., a control circuit board, a gas detection main body, a microprocessor, a communication device). The limitations of claim 1 relating to the function of the gas-guiding unit are obvious from the teaching of the gas guider along with the inlet and outlet. The copending application does not suggest a gas detection module that performs a computation processing to the gas detection data obtained by the gas detection module so as to control the gas-guiding unit to start or to stop operation.",
"However, Sharma teaches a controller 52 that may be configured to automatically activate the fan 18 of the apparatus if detects particles and the dew point exceeds a predetermined threshold ([0090]), which would be obvious to provide to advantageously conserve battery power. Sharma also discloses a battery a battery 54 ([0084]), which would require a power unit to use the battery’s power, which would be obvious to advantageously provide operation without a power cord. Regarding claim 15, claims 18 and 19 of the copending application recite the claimed features of the gas detection module of claim 15. Furthermore, claims 2, 12, 16, and 17 are made obvious by the copending application’s claims 1, 14, 19, and 20 respectively. This is a provisional nonstatutory double patenting rejection. REJECTION 2 Claims 1, 2, 3, 7, 11, 12, 13, and 15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 3, 7, 8, 9, and 18, of copending Application No. 17/161019 in view of Sharma and Mou et al. (TWM567364U).",
"Regarding claim 1, claim 1 of the copending application discloses a main body (i.e., a housing) with an inlet and an outlet, a purification module, a gas guider (i.e., a gas-guiding unit), and a gas detection module. The copending application does not claim a control circuit board, a gas detection main body, a microprocessor, a communication device, a power unit, and a battery, or a gas detection module that performs a computation processing to the gas detection data obtained by the gas detection module so as to control the gas-guiding unit to start or to stop operation. But Sharma teaches a PCB 56 ([0084]) (a control circuit board), the housing of the sensors 55 (Fig.",
"9) (i.e., a gas detection main body), a controller 52 ([0084]) (i.e., a microprocessor), and a battery 54 ([0084]), and a communication device and a power unit are made obvious by Mou, which teaches a communication component 52 (p. 13, “Referring to FIG. 8”) that can communicate with an external device 6 (p. 8, “The external device”), and which shows power unit-like features in Fig. 2. Sharma further teaches a controller 52 that may be configured to automatically activate the fan 18 of the apparatus if detects particles and the dew point exceeds a predetermined threshold ([0090]), which would be obvious to provide to advantageously conserve battery power. Furthermore, claims 2, 3, 7, 11, 12, 13, and 15 are made obvious by the copending application’s claims 1, 2, 3, 7, 8, 9, and 18, respectively. This is a provisional nonstatutory double patenting rejection. REJECTION 3 Claims 1, 2, 3, 4, 5, 6, 7, 9, 10, 12, 13, and 15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 3, 4, 5, 6, 7, 9, 8, 11, 11, and 15 of copending Application No. 17/165398 in view of Sharma and Mou.",
"Regarding claim 1, the limitations of claim 1 are not patentable over claim 1 of the copending application in view of Sharma and Mou, as in rejection 2, above. Furthermore, claims 2, 3, 4, 5, 6, 7, 9, 10, 12, 13, and 15 are made obvious by the copending application’s claims 2, 3, 4, 5, 6, 7, 9, 8, 11, 11, and 15, respectively. This is a provisional nonstatutory double patenting rejection. Additional Claim Objections Claims 15-17 and 19 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. Allowable Subject Matter The following is a statement of reasons for the indication of allowable subject matter: A thorough search for pertinent prior art did not locate any prior art that discloses or suggests the invention recited in claims 15-17 and 19. The concept of a gas detection and purification device (claim 1) comprising a detection main body that comprises a gas inlet groove that has a gas inlet through hole and two lateral walls, wherein a light permissive window is opened on a lateral wall of the gas inlet groove, and is in communication with the laser configuration region, a gas-guiding component loading region has a positioning bump, and an outer cap a side plate that has a gas inlet opening and a gas outlet opening (claim 15); or having a housing of a rectangular structure, and wherein a length of the housing is in a range between 40 mm and 120 mm, a width of the housing is in a range between 40 mm and 120 mm, and a height of the housing is in a range between 100 mm and 300 mm (claim 19) is considered to define patentable subject matter over the prior art.",
"The closest prior art is regarded to be Sharma et al. (WO 2018/112507 A1), which discloses an apparatus 10 for the filtering and sanitizing of air (Figs. 5, 6; [0067]) comprising a particle sensor 57 (Fig. 9; [0084]) (i.e., a gas detection and purification device). However, Sharma does not disclose a gas detection main body that comprises a gas inlet groove that has a gas inlet through hole and two lateral walls, wherein a light permissive window is opened on a lateral wall of the gas inlet groove, and is in communication with the laser configuration region, a gas-guiding component loading region has a positioning bump, and an outer cap a side plate that has a gas inlet opening and a gas outlet opening. Mou et al. (TWM567364U) discloses a particle monitoring module 3 that has a receiving slot 331 and a monitoring channel 332 (analogous to a gas inlet groove), a space in which a laser emitter 35 is disposed (analogous to a laser configuration region), and a second actuator 36 (analogous to a gas-guiding component) (Fig.",
"9; p. 10, “Referring to FIG. 1D”). However, Mou does not suggest a light permissive window is opened on a lateral wall of the gas inlet groove, and is in communication with the laser configuration region, a gas-guiding component loading region has a positioning bump, or an outer cap a side plate that has a gas inlet opening and a gas outlet opening. Regarding claim 19, Sharma does not suggest a rectangular structure or the dimensions claimed, and it would not have been obvious to the person skilled in the art to modify Sharma to provide the claimed structure and dimensions.",
"Claim 19 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims. Citation of Pertinent Prior Art The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Hyun (KR 101895978 B1) discloses a device that provides a fine dust purifying function (Abstract), wherein when the fine dust concentration measured by a fine dust measuring sensor S1 reaches a value that meets a preset 'normal' or 'good' reference, the controller 50 stops the operation of a fan unit 60 (p. 7, “On the other hand”). Conclusion Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Gabriel Gitman whose telephone number is (571) 272-7934. The Examiner can normally be reached on Monday-Thursday: 7:00 AM to 5:30 PM (EST). If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s supervisor, In Suk Bullock can be reached on 571-272-5954. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.",
"Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. Information regarding the status of an application may be obtained from Patent Center. Status information for published applications may be obtained from Patent Center. Status information for unpublished applications is available through Patent Center. For more information about Patent Center, see https://patentcenter.uspto.gov/. Should you have questions on access to Patent Center, 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. /GABRIEL E GITMAN/Examiner, Art Unit 1772"
]
| 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 |
Name: Commission Regulation (EEC) No 2575/89 of 24 August 1989 fixing the import levies on frozen beef and veal Type: Regulation Subject Matter: character(0) Date Published: nan
No L 249/44 Official Journal of the European Communities 25. 8 . 89 COMMISSION REGULATION (EEC) No 2575/89 of 24 August 1989 fixing the import levies on frozen beef and veal tions and other information known to the Commission that the levies should be altered to the amounts set out in the Annex hereto, HAS ADOPTED THIS REGULATION : THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to the Act of Accession of Spain and Portugal, Having regard to Regulation (EEC) No 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal 0. as last amended by Regula tion (EEC) No 571 /89 (2), and in particular Article 12 (8) thereof, Whereas the import levies on frozen beef and veal were fixed by Commission Regulation (EEC) No 1831 /89 (3), as amended by Regulation (EEC) No 2253/89 (4) ; Whereas it follows from applying the detailed rules contained in Regulation (EEC) No 1831 /89 to the quota Article 1 The import levies on frozen beef and veal shall be as set out in the Annex hereto. Article 2 This Regulation shall enter into force on 4 September 1989 . This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 24 August 1989 . For the Commission Ray MAC SHARRY Member of the Commission (') OJ No L 148, 28 . 6. 1968, p. 24. (2) OJ No L 61 , 4. 3 . 1989, p. 43. (3) OJ No L 177, 24. 6. 1989, p. 55, (j OJ No L 216, 27. 7. 1989, p. 20. 25. 8 . 89 Official Journal of the European Communities No L 249/45 ANNEX to the Commission Regulation of 24 August 1989 fixing the import levies on frozen beef and veal (') (ECU/ 100 kg) CN code Levy Net weight 0202 10 00 193,155 0202 20 10 193,155 0202 20 30 154,524 0202 20 50 241,444 0202 20 90 289,732 0202 30 10 241,444 0202 30 50 241,444 0202 30 90 332,226 0206 29 91 332,226 (') In accordance with Regulation (EEC) No 486/85, levies are not applied to imports into the French overseas departments of products originating in the African, Caribbean and Pacific States or in the overseas countries and territories. | nan | [
"Name: Commission Regulation (EEC) No 2575/89 of 24 August 1989 fixing the import levies on frozen beef and veal Type: Regulation Subject Matter: character(0) Date Published: nan No L 249/44 Official Journal of the European Communities 25. 8 . 89 COMMISSION REGULATION (EEC) No 2575/89 of 24 August 1989 fixing the import levies on frozen beef and veal tions and other information known to the Commission that the levies should be altered to the amounts set out in the Annex hereto, HAS ADOPTED THIS REGULATION : THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to the Act of Accession of Spain and Portugal, Having regard to Regulation (EEC) No 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal 0. as last amended by Regula tion (EEC) No 571 /89 (2), and in particular Article 12 (8) thereof, Whereas the import levies on frozen beef and veal were fixed by Commission Regulation (EEC) No 1831 /89 (3), as amended by Regulation (EEC) No 2253/89 (4) ; Whereas it follows from applying the detailed rules contained in Regulation (EEC) No 1831 /89 to the quota Article 1 The import levies on frozen beef and veal shall be as set out in the Annex hereto.",
"Article 2 This Regulation shall enter into force on 4 September 1989 . This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 24 August 1989 . For the Commission Ray MAC SHARRY Member of the Commission (') OJ No L 148, 28 . 6. 1968, p. 24. (2) OJ No L 61 , 4. 3 . 1989, p. 43. (3) OJ No L 177, 24.",
"6. 1989, p. 55, (j OJ No L 216, 27. 7. 1989, p. 20. 25. 8 . 89 Official Journal of the European Communities No L 249/45 ANNEX to the Commission Regulation of 24 August 1989 fixing the import levies on frozen beef and veal (') (ECU/ 100 kg) CN code Levy Net weight 0202 10 00 193,155 0202 20 10 193,155 0202 20 30 154,524 0202 20 50 241,444 0202 20 90 289,732 0202 30 10 241,444 0202 30 50 241,444 0202 30 90 332,226 0206 29 91 332,226 (') In accordance with Regulation (EEC) No 486/85, levies are not applied to imports into the French overseas departments of products originating in the African, Caribbean and Pacific States or in the overseas countries and territories."
]
| https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/DVN/0EGYWY | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 2:21-cv-02516-CCC-MF Document 8 Filed 03/17/21 Page 1 of 4 PageID: 55
Mark R. Rosen (N.J. Identification 003411980) Barrack, Rodos & Bacine One Gateway Center, Suite 2600 Newark, NJ 07102 Telephone: (973) 297-1484 Facsimile: (973) 297-1485 Email: mrosen@barrack.com Attorney for Plaintiff Jessica Moore and the Proposed Classes [Additional Counsel on Signature Page]
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
MELANIE SHEPARD, et al., individually and on behalf of all others similarly situated, Case No.: 2:21-cv-01977-CCC-MF Plaintiffs,
v.
GERBER PRODUCTS COMPANY,
Defendant. JESSICA MOORE, individually and on behalf of all others similarly situated, Case No.: 2:21-cv-02516-CCC-MF Plaintiff,
v.
GERBER PRODUCTS COMPANY,
Defendant. MICHELE WALLACE, et al., individually and on behalf of all others similarly situated, Case No.: 2:21-cv-02531-CCC-MF Plaintiffs,
v. Case 2:21-cv-02516-CCC-MF Document 8 Filed 03/17/21 Page 2 of 4 PageID: 56
GERBER PRODUCTS COMPANY, BEECH-NUT NUTRITION COMPANY, NURTURE, INC. AND HAIN CELESTIAL GROUP, INC.,
Defendants.
MUSLIN PIERRE-LOUIS, individually and on behalf of all others similarly situated, Case No.: 2:21-cv-04791 Plaintiff,
v.
GERBER PRODUCTS COMPANY,
Defendant.
JEREMY CANTOR, et al, individually and on behalf of all others similarly situated, Case No.: 2:21-cv-03402-CCC-ESK Plaintiffs,
v.
GERBER PRODUCTS COMPANY,
Defendant. Case 2:21-cv-02516-CCC-MF Document 8 Filed 03/17/21 Page 3 of 4 PageID: 57
To: All Counsel on the ECF Service List.
COUNSEL:
PLEASE TAKE NOTICE that on Monday, April 5, 2021, the undersigned counsel for
Plaintiff Jessica Moore cross-moves for an order transferring all actions to the extent that they
assert claims against Defendant Gerber Products Company to the United States District Court for
the Eastern District of Virginia and requests that the consolidation motion and cross-motion to
transfer be considered in the same hearing. In support thereof, Plaintiff Jessica Moore relies on
their accompanying brief.
Dated: March 17, 2021 Respectfully submitted,
/s/ Mark R. Rosen Mark R. Rosen Barrack, Rodos & Bacine One Gateway Center, Suite 2600 Newark, NJ 07102 T: (973) 297-1484 F: (973) 297-1485 mrosen@barrack.com
and
Julie B. Palley Barrack, Rodos & Bacine 3300 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 T: (215) 963-0600 F: (205) 963-0838 jpalley@barrack.com
Attorneys for the Plaintiff Jessica Moore and the Proposed Classes Case 2:21-cv-02516-CCC-MF Document 8 Filed 03/17/21 Page 4 of 4 PageID: 58
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Notice, Brief of Plaintiff Jessica Moore in Response to
Motion of Other Plaintiffs to Consolidate District of New Jersey Actions and in Support of Cross-
Motion to Transfer All Gerber Claims to the Eastern District of Virginia and Proposed Order
were electronically served through ECF to all counsel of record on this date.
Dated: March 17, 2021 /s/ Mark R. Rosen Mark R. Rosen Attorney for Plaintiff Jessica Moore and Proposed Classes | 2021-03-17 | [
"Case 2:21-cv-02516-CCC-MF Document 8 Filed 03/17/21 Page 1 of 4 PageID: 55 Mark R. Rosen (N.J. Identification 003411980) Barrack, Rodos & Bacine One Gateway Center, Suite 2600 Newark, NJ 07102 Telephone: (973) 297-1484 Facsimile: (973) 297-1485 Email: mrosen@barrack.com Attorney for Plaintiff Jessica Moore and the Proposed Classes [Additional Counsel on Signature Page] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY MELANIE SHEPARD, et al., individually and on behalf of all others similarly situated, Case No. : 2:21-cv-01977-CCC-MF Plaintiffs, v. GERBER PRODUCTS COMPANY, Defendant. JESSICA MOORE, individually and on behalf of all others similarly situated, Case No.",
": 2:21-cv-02516-CCC-MF Plaintiff, v. GERBER PRODUCTS COMPANY, Defendant. MICHELE WALLACE, et al., individually and on behalf of all others similarly situated, Case No. : 2:21-cv-02531-CCC-MF Plaintiffs, v. Case 2:21-cv-02516-CCC-MF Document 8 Filed 03/17/21 Page 2 of 4 PageID: 56 GERBER PRODUCTS COMPANY, BEECH-NUT NUTRITION COMPANY, NURTURE, INC. AND HAIN CELESTIAL GROUP, INC., Defendants. MUSLIN PIERRE-LOUIS, individually and on behalf of all others similarly situated, Case No. : 2:21-cv-04791 Plaintiff, v. GERBER PRODUCTS COMPANY, Defendant. JEREMY CANTOR, et al, individually and on behalf of all others similarly situated, Case No. : 2:21-cv-03402-CCC-ESK Plaintiffs, v. GERBER PRODUCTS COMPANY, Defendant. Case 2:21-cv-02516-CCC-MF Document 8 Filed 03/17/21 Page 3 of 4 PageID: 57 To: All Counsel on the ECF Service List. COUNSEL: PLEASE TAKE NOTICE that on Monday, April 5, 2021, the undersigned counsel for Plaintiff Jessica Moore cross-moves for an order transferring all actions to the extent that they assert claims against Defendant Gerber Products Company to the United States District Court for the Eastern District of Virginia and requests that the consolidation motion and cross-motion to transfer be considered in the same hearing. In support thereof, Plaintiff Jessica Moore relies on their accompanying brief. Dated: March 17, 2021 Respectfully submitted, /s/ Mark R. Rosen Mark R. Rosen Barrack, Rodos & Bacine One Gateway Center, Suite 2600 Newark, NJ 07102 T: (973) 297-1484 F: (973) 297-1485 mrosen@barrack.com and Julie B. Palley Barrack, Rodos & Bacine 3300 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 T: (215) 963-0600 F: (205) 963-0838 jpalley@barrack.com Attorneys for the Plaintiff Jessica Moore and the Proposed Classes Case 2:21-cv-02516-CCC-MF Document 8 Filed 03/17/21 Page 4 of 4 PageID: 58 CERTIFICATE OF SERVICE I hereby certify that the foregoing Notice, Brief of Plaintiff Jessica Moore in Response to Motion of Other Plaintiffs to Consolidate District of New Jersey Actions and in Support of Cross- Motion to Transfer All Gerber Claims to the Eastern District of Virginia and Proposed Order were electronically served through ECF to all counsel of record on this date.",
"Dated: March 17, 2021 /s/ Mark R. Rosen Mark R. Rosen Attorney for Plaintiff Jessica Moore and Proposed Classes"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/164278635/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 4-5, 8, 11-12, and 21-28 are rejected under 35 U.S.C. 103 as being unpatentable over MURRAY et al. (US 2020/0404617 Al - provisional application No. 62/564,476, filed on Sep. 28, 2017) in view of LIU (US 2020/0280955 A1 – PCT filed on Sep. 8, 2017). Regarding claims 1 and 8, MURRAY et al. teach a paging method/A terminal device, comprising: an input interface, an output interface, a memory, a processor, and a computer program stored on the memory and operable on the processor wherein the processor, when running the computer program, is configured to/comprising: determining, by a terminal device, a first paging bandwidth, wherein the first paging bandwidth is one of a plurality of MURRAY et al. does not mention wherein the plurality of paging bandwidths are configured by a network device through configuration information, and the configuration information comprises configuration of a plurality of bandwidth parts (BWP), wherein each BWP comprises one paging bandwidth. LIU teaches the plurality of paging bandwidths are configured by a network device through configuration information, and the configuration information comprises configuration of a plurality of bandwidth parts (BWP), wherein each BWP comprises one paging bandwidth (see fig. 2 and pars. 0015-0018: generating paging configuration information, the paging configuration information including a BWP identifier of a BWP for receiving, by the UE, a paging message, and the paging message being configured on a minimum band width supported Therefore, it would have been obvious to one of ordinary skill in the art before the effective the filling date of claimed invention (AIA ) to modify the above teaching of LIU to the method of MURRAY et al. in order to prevent a UE from searching for synchronization signals for too long, a high frequency may be defined as a plurality of Band Width Parts (BWPs). Each BWP may be configured with a synchronization signal or a synchronization signal set. Some UEs only support a minimum band width in one BWP, that is, a band narrower than one BWP, while some UEs may support a plurality of BWPs. Regarding claims 4 and 11, MURRAY et al. also teach wherein the configuration information comprises frequency domain position information of each of the plurality of paging bandwidths (see par. 0364). Regarding claims 5 and 12, MURRAY et al. also teach wherein the configuration information comprises a system message (see par. 0005, par. 0012, and par. 0485 and figs. 80A-80B). Regarding claims 21 and 25, LIU also teaches and shows wherein each of the plurality of paging bandwidths is respectively located in a different BWP (see fig. 2 and pars. 0015-0018). Regarding claims 22 and 26, LIU also teaches and shows wherein the determining a first paging bandwidth comprising: obtaining paging instruction information (see fig. 2 and pars. 0015-0018); and determining the first paging bandwidth according to the paging instruction information (see fig. 2 and pars. 0015-0018).
Regarding claims 24 and 28, MURRAY et al. also teach wherein each of the plurality of paging bandwidths is no larger than a minimum bandwidth capability of the terminal device (see par. 0495). Regarding claim 25, LIU also teaches and shows wherein each of the plurality of paging bandwidths is respectively located in a different BWP (see fig. 2 and pars. 0015-0018).
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID Q NGUYEN whose telephone number is (571)272-7844. The examiner can normally be reached on Monday-Friday 7:00 AM - 3:00 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, Jinsong Hu can be reached on 5712723965. 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
/DAVID Q NGUYEN/Primary Examiner, Art Unit 2643 | 2021-06-09T14:53:44 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.",
"Patentability shall not be negated by the manner in which the invention was made. Claims 1, 4-5, 8, 11-12, and 21-28 are rejected under 35 U.S.C. 103 as being unpatentable over MURRAY et al. (US 2020/0404617 Al - provisional application No. 62/564,476, filed on Sep. 28, 2017) in view of LIU (US 2020/0280955 A1 – PCT filed on Sep. 8, 2017). Regarding claims 1 and 8, MURRAY et al. teach a paging method/A terminal device, comprising: an input interface, an output interface, a memory, a processor, and a computer program stored on the memory and operable on the processor wherein the processor, when running the computer program, is configured to/comprising: determining, by a terminal device, a first paging bandwidth, wherein the first paging bandwidth is one of a plurality of MURRAY et al.",
"does not mention wherein the plurality of paging bandwidths are configured by a network device through configuration information, and the configuration information comprises configuration of a plurality of bandwidth parts (BWP), wherein each BWP comprises one paging bandwidth. LIU teaches the plurality of paging bandwidths are configured by a network device through configuration information, and the configuration information comprises configuration of a plurality of bandwidth parts (BWP), wherein each BWP comprises one paging bandwidth (see fig. 2 and pars. 0015-0018: generating paging configuration information, the paging configuration information including a BWP identifier of a BWP for receiving, by the UE, a paging message, and the paging message being configured on a minimum band width supported Therefore, it would have been obvious to one of ordinary skill in the art before the effective the filling date of claimed invention (AIA ) to modify the above teaching of LIU to the method of MURRAY et al. in order to prevent a UE from searching for synchronization signals for too long, a high frequency may be defined as a plurality of Band Width Parts (BWPs).",
"Each BWP may be configured with a synchronization signal or a synchronization signal set. Some UEs only support a minimum band width in one BWP, that is, a band narrower than one BWP, while some UEs may support a plurality of BWPs. Regarding claims 4 and 11, MURRAY et al. also teach wherein the configuration information comprises frequency domain position information of each of the plurality of paging bandwidths (see par. 0364). Regarding claims 5 and 12, MURRAY et al. also teach wherein the configuration information comprises a system message (see par. 0005, par. 0012, and par. 0485 and figs. 80A-80B). Regarding claims 21 and 25, LIU also teaches and shows wherein each of the plurality of paging bandwidths is respectively located in a different BWP (see fig.",
"2 and pars. 0015-0018). Regarding claims 22 and 26, LIU also teaches and shows wherein the determining a first paging bandwidth comprising: obtaining paging instruction information (see fig. 2 and pars. 0015-0018); and determining the first paging bandwidth according to the paging instruction information (see fig. 2 and pars. 0015-0018). Regarding claims 24 and 28, MURRAY et al. also teach wherein each of the plurality of paging bandwidths is no larger than a minimum bandwidth capability of the terminal device (see par. 0495). Regarding claim 25, LIU also teaches and shows wherein each of the plurality of paging bandwidths is respectively located in a different BWP (see fig.",
"2 and pars. 0015-0018). Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID Q NGUYEN whose telephone number is (571)272-7844. The examiner can normally be reached on Monday-Friday 7:00 AM - 3:00 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, Jinsong Hu can be reached on 5712723965. 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 /DAVID Q NGUYEN/Primary Examiner, Art Unit 2643"
]
| 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 |
421 N.W.2d 41 (1988) 228 Neb. 69 STATE of Nebraska, Appellant, v. Robert R. NASH, Appellee. No. 88-108. Supreme Court of Nebraska. March 25, 1988. Charles A. Kandt, Lincoln County Atty., for appellant. P. Stephen Potter, Gothenburg, for appellee. *42 BOSLAUGH, Justice. This is an interlocutory appeal by the State under Neb.Rev.Stat. § 29-116 (Reissue 1985) to review the order of the district court sustaining the defendant's motion to suppress statements made by him to state patrolmen on February 17, 1987. The record shows that on February 16, 1987, a search warrant was served on the defendant, Robert R. Nash, at his residence in North Platte, Nebraska. As a result of the search a number of items were seized from his residence and a vehicle. Nash was present during the search, but was not placed under arrest. According to the defendant, Sgt. James J. Parish of the Nebraska State Patrol told Nash at that time that he was in a great deal of trouble and that it would be to his benefit to talk to the State Patrol. Later that day, Nash contacted his attorney, P. Stephen Potter, and requested that Potter contact the State Patrol. Potter then spoke with Sergeant Parish, who briefed Potter on the search warrant and the background of the investigation. Sergeant Parish said that it would perhaps be to Nash's benefit to talk to them and provide his side of the story. According to Parish, he did not indicate in any way that such meeting would be confidential. Potter called Lt. Terry Dowling of the State Patrol the following day and arranged for his client to meet with the State Patrol that afternoon. Lieutenant Dowling testified that during the conversation, Potter stated that he would like to bring Nash in for a "clear-the-air type meeting" and give the State Patrol an idea of Nash's involvement in the case. According to Lieutenant Dowling, he did not in any way indicate that such a statement would be confidential or in lieu of prosecution. Nash and Potter arrived at the State Patrol office around 4 or 5 p.m. that day and met with Sergeant Parish and Investigator Teddy D. Mashek. During the interview Nash was not under arrest, no charges had been filed against him, he was free to leave at any time, and his attorney was present with him at all times. No Miranda warnings were given. During the interview Nash made certain admissions, shortly after which Potter ended the interview. Nash testified that, prior to his admissions, Sergeant Parish told him that the conversation would be confined to the State Patrol building and that the conversation would be confidential. Nash stated that Potter was with him at all times, including the time at which Sergeant Parish told him his statements would be in confidence. Potter did not testify that he heard this promise of confidentiality. The closest his testimony came to this matter was during the following: THE COURT: Mr. Potter, you said that you felt the conversation with the State Patrol was to have been off the record and confidential in the form of seeking a negotiated settlement. Could you point out any specific statements made by anyone with the State Patrol that gave you that feeling or impression? MR. POTTER: My conversationsit was my understanding that was the purpose of the meeting, to see if there was any possibility. If there was no possibility, then there was no need to proceed with a formal contract with the State Patrol; that there was certain information that they needed or wanted to talk to Mr. Nash about, and that this was the best way in which to do it. Sergeant Parish testified that he remembered some discussion during the interview regarding Potter's concern for his client's safety and of Nash's fear of physical retribution, but that he remembered no agreement that the conversation would be confidential. Investigator Mashek remembered discussing Nash's concern for his personal safety, but did not believe there were any conditions placed on what use would be made of the statements. He stated that the interview was conducted as he would conduct any interrogation of a witness or criminal suspect. Potter testified:
*43 I agreed to meet with the Nebraska State Patrol and to talk with the investigators and have my client visit with them. I felt that the conversation was one in negotiations in that through my works with the State Patrol, I find that the State Patrol is of the highest integrity. .... It disturbs me because I feel that the meeting was one arranged in confidentiality, off the record, to try to facilitate the best interests of my client and try to work out something with the State Patrol that would be beneficial to the State Patrol. He further testified, on cross-examination, that no offers of negotiation were discussed or made by the State Patrol in regard to potential charges, potential immunity, potential reduction of charges, potential testimony, or anything else, but that he believed they were in the process of exchanging information to determine whether there was a possibility that negotiations could be made. He further admitted that nothing was said to the effect that they were in the process of negotiations. Potter knew that only the county attorney's office had the authority to enter into plea agreements and that only the county attorney's office or the court could grant immunity. The trial court found there was no improper inducement, threat, or promise by the Nebraska State Patrol in eliciting the statements from Nash during the interview, but that it appeared there was a misunderstanding or lack of communication between Potter and Nash, and the State Patrol. The court stated on the record that it would sustain the motion and suppress the statements for two reasons. The court began by noting that Nash had previously requested the court to allow Potter to withdraw from the case, which the court had refused to do until Nash secured other counsel at the time of the hearing, and the trial was set for the next day. The court stated: [E]ven if the motion to suppress is overruled, Mr. Potter is placed in the situation of deciding with his client whether Mr. Potter should testify during the course of the trial to attempt to show the jury that the statement made by Mr. Nash was not made voluntarily.... ... Mr. Potter would be placed on the horns of a dilemma and would not be in a position to properly represent Mr. Nash if he did not testify and would be in an unethical position if he chose to testify with Mr. Nash having no alternate counsel to continue with the remainder of the trial. So for that reason and for the second reason that it does appear to be a misunderstanding whether this conference was to be confidential or off the record, the Court is going to sustain the motion to suppress.... The findings of fact made by a trial court on a motion to suppress will not be overturned on appeal unless clearly wrong. State v. Vrtiska, 225 Neb. 454, 406 N.W.2d 114 (1987), cert. denied ___ U.S. ___, 108 S. Ct. 180, 98 L. Ed. 2d 133 (1987); State v. Bodtke, 219 Neb. 504, 363 N.W.2d 917 (1985). Although the trial court stated, "I'm not suggesting in any way that there was any improper inducement or threat or promise by the Nebraska State Patrol in eliciting the comment or comments from Mr. Nash during the February 17, 1987, interview," the court sustained the motion to suppress, at least in part, upon the basis that there was a misunderstanding between Nash and the patrol as to whether Nash's statements were to remain confidential. Nash testified positively that Sergeant Parish had said to Nash that "the conversation we had in the Nebraska State Patrol building would be confined to the Nebraska State Patrol building." Although the reason appeared to be that Nash and Potter feared for the safety of Nash if his accomplice learned that he had become an informer, the statement, if made, had broader implications. If the testimony of Nash is accepted as true, then a reasonable man in the situation of Nash could believe that any statement he made would remain confidential and, thus, would not be used against him. That would be a *44 substantial inducement to make a statement and would prevent a finding that the statement was voluntarily made. In State v. Smith, 203 Neb. 64, 66-67, 277 N.W.2d 441, 443 (1979), we said: Before taking the statement the police officer stated that if the defendant cooperated with the police he would attempt to have the matter transferred to juvenile court. This was an inducement which under the circumstances of this case rendered the statement involuntary. In State v. McDonald, 195 Neb. 625, 240 N.W.2d 8 (1976), we stated: "To be admissible, a statement or confession must be free and voluntary. It must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." The record does not show clearly that the trial court accepted the testimony of Nash as true. On the other hand, a finding that a misunderstanding sufficient to require that the statements be suppressed would have to be based on a finding that the defendant's belief that he had been promised confidentiality was reasonable. That, in turn, depends upon his statement that Sergeant Parish said the statements would be confined to the patrol building. In view of the conflicts in the evidence, and the finding of the trial court, I conclude that the order sustaining the motion to suppress must be affirmed. AFFIRMED. | 10-30-2013 | [
"421 N.W.2d 41 (1988) 228 Neb. 69 STATE of Nebraska, Appellant, v. Robert R. NASH, Appellee. No. 88-108. Supreme Court of Nebraska. March 25, 1988. Charles A. Kandt, Lincoln County Atty., for appellant. P. Stephen Potter, Gothenburg, for appellee. *42 BOSLAUGH, Justice. This is an interlocutory appeal by the State under Neb.Rev.Stat. § 29-116 (Reissue 1985) to review the order of the district court sustaining the defendant's motion to suppress statements made by him to state patrolmen on February 17, 1987.",
"The record shows that on February 16, 1987, a search warrant was served on the defendant, Robert R. Nash, at his residence in North Platte, Nebraska. As a result of the search a number of items were seized from his residence and a vehicle. Nash was present during the search, but was not placed under arrest. According to the defendant, Sgt. James J. Parish of the Nebraska State Patrol told Nash at that time that he was in a great deal of trouble and that it would be to his benefit to talk to the State Patrol. Later that day, Nash contacted his attorney, P. Stephen Potter, and requested that Potter contact the State Patrol. Potter then spoke with Sergeant Parish, who briefed Potter on the search warrant and the background of the investigation.",
"Sergeant Parish said that it would perhaps be to Nash's benefit to talk to them and provide his side of the story. According to Parish, he did not indicate in any way that such meeting would be confidential. Potter called Lt. Terry Dowling of the State Patrol the following day and arranged for his client to meet with the State Patrol that afternoon. Lieutenant Dowling testified that during the conversation, Potter stated that he would like to bring Nash in for a \"clear-the-air type meeting\" and give the State Patrol an idea of Nash's involvement in the case. According to Lieutenant Dowling, he did not in any way indicate that such a statement would be confidential or in lieu of prosecution.",
"Nash and Potter arrived at the State Patrol office around 4 or 5 p.m. that day and met with Sergeant Parish and Investigator Teddy D. Mashek. During the interview Nash was not under arrest, no charges had been filed against him, he was free to leave at any time, and his attorney was present with him at all times. No Miranda warnings were given. During the interview Nash made certain admissions, shortly after which Potter ended the interview. Nash testified that, prior to his admissions, Sergeant Parish told him that the conversation would be confined to the State Patrol building and that the conversation would be confidential. Nash stated that Potter was with him at all times, including the time at which Sergeant Parish told him his statements would be in confidence.",
"Potter did not testify that he heard this promise of confidentiality. The closest his testimony came to this matter was during the following: THE COURT: Mr. Potter, you said that you felt the conversation with the State Patrol was to have been off the record and confidential in the form of seeking a negotiated settlement. Could you point out any specific statements made by anyone with the State Patrol that gave you that feeling or impression? MR. POTTER: My conversationsit was my understanding that was the purpose of the meeting, to see if there was any possibility. If there was no possibility, then there was no need to proceed with a formal contract with the State Patrol; that there was certain information that they needed or wanted to talk to Mr. Nash about, and that this was the best way in which to do it. Sergeant Parish testified that he remembered some discussion during the interview regarding Potter's concern for his client's safety and of Nash's fear of physical retribution, but that he remembered no agreement that the conversation would be confidential. Investigator Mashek remembered discussing Nash's concern for his personal safety, but did not believe there were any conditions placed on what use would be made of the statements.",
"He stated that the interview was conducted as he would conduct any interrogation of a witness or criminal suspect. Potter testified: *43 I agreed to meet with the Nebraska State Patrol and to talk with the investigators and have my client visit with them. I felt that the conversation was one in negotiations in that through my works with the State Patrol, I find that the State Patrol is of the highest integrity.",
".... It disturbs me because I feel that the meeting was one arranged in confidentiality, off the record, to try to facilitate the best interests of my client and try to work out something with the State Patrol that would be beneficial to the State Patrol. He further testified, on cross-examination, that no offers of negotiation were discussed or made by the State Patrol in regard to potential charges, potential immunity, potential reduction of charges, potential testimony, or anything else, but that he believed they were in the process of exchanging information to determine whether there was a possibility that negotiations could be made. He further admitted that nothing was said to the effect that they were in the process of negotiations.",
"Potter knew that only the county attorney's office had the authority to enter into plea agreements and that only the county attorney's office or the court could grant immunity. The trial court found there was no improper inducement, threat, or promise by the Nebraska State Patrol in eliciting the statements from Nash during the interview, but that it appeared there was a misunderstanding or lack of communication between Potter and Nash, and the State Patrol. The court stated on the record that it would sustain the motion and suppress the statements for two reasons. The court began by noting that Nash had previously requested the court to allow Potter to withdraw from the case, which the court had refused to do until Nash secured other counsel at the time of the hearing, and the trial was set for the next day. The court stated: [E]ven if the motion to suppress is overruled, Mr. Potter is placed in the situation of deciding with his client whether Mr. Potter should testify during the course of the trial to attempt to show the jury that the statement made by Mr. Nash was not made voluntarily.... ... Mr. Potter would be placed on the horns of a dilemma and would not be in a position to properly represent Mr. Nash if he did not testify and would be in an unethical position if he chose to testify with Mr. Nash having no alternate counsel to continue with the remainder of the trial. So for that reason and for the second reason that it does appear to be a misunderstanding whether this conference was to be confidential or off the record, the Court is going to sustain the motion to suppress....",
"The findings of fact made by a trial court on a motion to suppress will not be overturned on appeal unless clearly wrong. State v. Vrtiska, 225 Neb. 454, 406 N.W.2d 114 (1987), cert. denied ___ U.S. ___, 108 S. Ct. 180, 98 L. Ed. 2d 133 (1987); State v. Bodtke, 219 Neb. 504, 363 N.W.2d 917 (1985). Although the trial court stated, \"I'm not suggesting in any way that there was any improper inducement or threat or promise by the Nebraska State Patrol in eliciting the comment or comments from Mr. Nash during the February 17, 1987, interview,\" the court sustained the motion to suppress, at least in part, upon the basis that there was a misunderstanding between Nash and the patrol as to whether Nash's statements were to remain confidential.",
"Nash testified positively that Sergeant Parish had said to Nash that \"the conversation we had in the Nebraska State Patrol building would be confined to the Nebraska State Patrol building.\" Although the reason appeared to be that Nash and Potter feared for the safety of Nash if his accomplice learned that he had become an informer, the statement, if made, had broader implications. If the testimony of Nash is accepted as true, then a reasonable man in the situation of Nash could believe that any statement he made would remain confidential and, thus, would not be used against him.",
"That would be a *44 substantial inducement to make a statement and would prevent a finding that the statement was voluntarily made. In State v. Smith, 203 Neb. 64, 66-67, 277 N.W.2d 441, 443 (1979), we said: Before taking the statement the police officer stated that if the defendant cooperated with the police he would attempt to have the matter transferred to juvenile court. This was an inducement which under the circumstances of this case rendered the statement involuntary. In State v. McDonald, 195 Neb. 625, 240 N.W.2d 8 (1976), we stated: \"To be admissible, a statement or confession must be free and voluntary. It must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.\" The record does not show clearly that the trial court accepted the testimony of Nash as true.",
"On the other hand, a finding that a misunderstanding sufficient to require that the statements be suppressed would have to be based on a finding that the defendant's belief that he had been promised confidentiality was reasonable. That, in turn, depends upon his statement that Sergeant Parish said the statements would be confined to the patrol building. In view of the conflicts in the evidence, and the finding of the trial court, I conclude that the order sustaining the motion to suppress must be affirmed. AFFIRMED."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2031558/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
PNG media_image1.png 172 172 media_image1.png Greyscale United States Patent and Trademark Office
Commissioner for Patents United States Patent and Trademark Office P.O. Box 1450 Alexandria, VA 22313-1450 www.uspto.gov
In re Application of Murray et al. Application No. 16/689,223 Filed: 20 Nov 2019 For: SEMICONDUCTOR DEVICE WITH REDUCED VIA RESISTANCE : : : : DECISION ON PETITION : : :
This is a decision on the renewed petition under 37 CFR 1.78(e) filed November 4, 2021, requesting acceptance of an unintentionally delayed claim under 35 U.S.C. 120 for the benefit of prior-filed nonprovisional applications, as set forth in the corrected application data sheet (ADS) filed November 1, 2021.
The petition is GRANTED.
If the reference required by 35 U.S.C. 120 and 37 CFR 1.78(d)(2) is presented after the time period provided by 37 CFR 1.78(d)(3), the claim under 35 U.S.C. 120 for the benefit of a prior-filed nonprovisional application may be accepted if the reference required by 37 CFR 1.78(d)(2) was unintentionally delayed. A petition to accept an unintentionally delayed claim under 35 U.S.C. 120 for the benefit of a prior-filed application must be accompanied by:
(1) The reference required by 35 U.S.C. 120 and 37 CFR 1.78(d)(2) to the prior-filed application, unless previously submitted. The reference must be included in an application data sheet (§ 1.76(b)(5));
(2) The petition fee as set forth in § 1.17(m); and
(3) A statement that the entire delay between the date the benefit claim was due under 37 CFR 1.78(d)(3) and the date the benefit claim was filed was unintentional. The Director may require additional information where there is a question whether the delay was unintentional.
As the present petition satisfies all the above requirements, the claim under 35 U.S.C. 120 for the benefit of the prior-filed nonprovisional application is accepted as being unintentionally delayed.
see MPEP 211.01 et. seq.) have been met. This acceptance should not be construed as meaning that this application is entitled to the benefit of the prior-filed application. Whether a claimed invention in a nonprovisional application is entitled to the benefit of the filing date of a prior-filed application on the basis of the disclosure thereof is determined during examination if it becomes necessary to do so (e.g., intervening reference and interference proceeding). See MPEP 211.05.
A corrected Filing Receipt, which includes the benefit claim to the prior-filed application, accompanies this decision on petition.
This application is being forwarded to Technology Center Art Unit 2813 for further processing and examination.
Questions concerning this matter may be directed to the undersigned at (571) 272-3231.
/DOUGLAS I WOOD/Attorney Advisor, OPET
Enclosure: Corrected Filing Receipt | 2021-11-27T12:38:06 | [
"PNG media_image1.png 172 172 media_image1.png Greyscale United States Patent and Trademark Office Commissioner for Patents United States Patent and Trademark Office P.O. Box 1450 Alexandria, VA 22313-1450 www.uspto.gov In re Application of Murray et al. Application No. 16/689,223 Filed: 20 Nov 2019 For: SEMICONDUCTOR DEVICE WITH REDUCED VIA RESISTANCE : : : : DECISION ON PETITION : : : This is a decision on the renewed petition under 37 CFR 1.78(e) filed November 4, 2021, requesting acceptance of an unintentionally delayed claim under 35 U.S.C.",
"120 for the benefit of prior-filed nonprovisional applications, as set forth in the corrected application data sheet (ADS) filed November 1, 2021. The petition is GRANTED. If the reference required by 35 U.S.C. 120 and 37 CFR 1.78(d)(2) is presented after the time period provided by 37 CFR 1.78(d)(3), the claim under 35 U.S.C. 120 for the benefit of a prior-filed nonprovisional application may be accepted if the reference required by 37 CFR 1.78(d)(2) was unintentionally delayed. A petition to accept an unintentionally delayed claim under 35 U.S.C. 120 for the benefit of a prior-filed application must be accompanied by: (1) The reference required by 35 U.S.C. 120 and 37 CFR 1.78(d)(2) to the prior-filed application, unless previously submitted. The reference must be included in an application data sheet (§ 1.76(b)(5)); (2) The petition fee as set forth in § 1.17(m); and (3) A statement that the entire delay between the date the benefit claim was due under 37 CFR 1.78(d)(3) and the date the benefit claim was filed was unintentional. The Director may require additional information where there is a question whether the delay was unintentional.",
"As the present petition satisfies all the above requirements, the claim under 35 U.S.C. 120 for the benefit of the prior-filed nonprovisional application is accepted as being unintentionally delayed. see MPEP 211.01 et. seq.) have been met. This acceptance should not be construed as meaning that this application is entitled to the benefit of the prior-filed application. Whether a claimed invention in a nonprovisional application is entitled to the benefit of the filing date of a prior-filed application on the basis of the disclosure thereof is determined during examination if it becomes necessary to do so (e.g., intervening reference and interference proceeding). See MPEP 211.05. A corrected Filing Receipt, which includes the benefit claim to the prior-filed application, accompanies this decision on petition. This application is being forwarded to Technology Center Art Unit 2813 for further processing and examination. Questions concerning this matter may be directed to the undersigned at (571) 272-3231. /DOUGLAS I WOOD/Attorney Advisor, OPET Enclosure: Corrected Filing Receipt"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-11-21.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Name: Commission Implementing Regulation (EU) 2015/662 of 28 April 2015 concerning the authorisation of L-carnitine and L-carnitine L-tartrate as feed additives for all animal species (Text with EEA relevance) Type: Implementing Regulation Subject Matter: agricultural activity; health; marketing; EU institutions and European civil service; foodstuff Date Published: nan
29.4.2015 EN Official Journal of the European Union L 110/5 COMMISSION IMPLEMENTING REGULATION (EU) 2015/662 of 28 April 2015 concerning the authorisation of L-carnitine and L-carnitine L-tartrate as feed additives for all animal species (Text with EEA relevance) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Regulation (EC) No 1831/2003 of the European Parliament and of the Council of 22 September 2003 on additives for use in animal nutrition (1), and in particular Article 9(2) thereof, Whereas: (1) Regulation (EC) No 1831/2003 provides for the authorisation of additives for use in animal nutrition and for the grounds and procedures for granting such authorisation. Article 10 of that Regulation provides for the re-evaluation of additives authorised pursuant to Council Directive 70/524/EEC (2). (2) L-carnitine and L-carnitine L-tartrate were authorised without a time limit in accordance with Directive 70/524/EEC as feed additives for all animal species. Those products were subsequently entered in the Register of feed additives as existing products, in accordance with Article 10(1) of Regulation (EC) No 1831/2003. (3) In accordance with Article 10(2) of Regulation (EC) No 1831/2003, in conjunction with Article 7 thereof, two applications were submitted for the re-evaluation of L-carnitine and its preparations and L-carnitine L-tartrate for all animal species and, in accordance with Article 7 of that Regulation, for a new use in water for drinking. The applicants requested these additives to be classified in the additive category nutritional additives. Those applications were accompanied by the particulars and documents required under Article 7(3) of Regulation (EC) No 1831/2003. (4) The European Food Safety Authority (the Authority) concluded in its opinions of 24 April 2012 (3) that, under the proposed conditions of use in feed and in water for drinking, L-carnitine and L-carnitine L-tartrate do not have adverse effects on animal or human health or the environment. The Authority concluded that L-carnitine and L-carnitine L-tartrate are regarded as effective sources of L-carnitine. The Authority further concluded that no safety concerns would arise for users. The Authority does not consider that there is a need for specific requirements of post-market monitoring. It also verified the report on the method of analysis of the feed additives in feed and in water submitted by the Reference Laboratory set up by Regulation (EC) No 1831/2003. (5) The assessment of L-carnitine and L-carnitine L-tartrate shows that the conditions for authorisation, as provided for in Article 5 of Regulation (EC) No 1831/2003, are satisfied. Accordingly, the use of these substances should be authorised as specified in the Annex to this Regulation. (6) Since safety reasons do not require the immediate application of the modifications to the conditions of authorisation, it is appropriate to allow a transitional period for interested parties to prepare themselves to meet the new requirements resulting from the authorisation. (7) The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed, HAS ADOPTED THIS REGULATION: Article 1 The substances specified in the Annex, belonging to the additive category nutritional additives and to the functional group vitamins, pro-vitamins and chemically well-defined substances having similar effect, are authorised as additives in animal nutrition subject to the conditions laid down in that Annex. Article 2 1. The substances specified in the Annex and premixtures containing those substances which are produced and labelled before 19 November 2015 in accordance with the rules applicable before 19 May 2015 may continue to be placed on the market and used until the existing stocks are exhausted. 2. Compound feed and feed materials containing the substances specified in the Annex which are produced and labelled before 19 November 2015 in accordance with the rules applicable before 19 May 2015 may continue to be placed on the market and used until the existing stocks are exhausted if they are intended for food producing animals. 3. Compound feed and feed materials containing the substances specified in the Annex which are produced and labelled before 19 May 2017 in accordance with the rules applicable before 19 May 2015 may continue to be placed on the market and used until the existing stocks are exhausted if they are intended for non-food producing animals. Article 3 This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 28 April 2015. For the Commission The President Jean-Claude JUNCKER (1) OJ L 268, 18.10.2003, p. 29. (2) Council Directive 70/524/EEC of 23 November 1970 concerning additives in feedingstuffs (OJ L 270, 14.12.1970, p. 1). (3) EFSA Journal 2012;10(5):2676 and EFSA Journal 2012;10(5):2677. ANNEX Identification number of the additive Name of the holder of authorisation Additive Composition, chemical formula, description, analytical method Species or category of animal Maximum age Minimum content Maximum content Other provisions End of period of authorisation mg of active substance/kg of complete feedingstuff with a moisture content of 12 % or mg of the active substance/l of water Category of nutritional additives. Functional group: vitamins, provitamins and chemically well-defined substances having a similar effect 3a910 L-carnitine Additive composition L-carnitine Active substance L-carnitine C7H15NO3 CAS No: 541-15-1 L-carnitine solid form produced by chemical synthesis: min. 97 %. Method of Analysis (1) For the determination of L-carnitine in the feed additive: titration with perchloric acid (Ph Eur 6th edition, monograph 1339) For the determination of L-carnitine in premixtures: ion chromatography method with electrical conductivity detection (IC-ECD) or Spectrophotometric method after enzymatic reaction with carnitine-acetyl-transferase. For the determination of L-carnitine in feedingstuffs: Reversed Phase High Performance Liquid Chromatography (RP-HPLC) with fluorimetric detector or Spectrophotometric method after enzymatic reaction with carnitine-acetyl-transferase. For the determination of L-carnitine in water: potentiometric titration or Spectrophotometric method after enzymatic reaction with carnitine-acetyl-transferase. All animal species 1. L-carnitine may be placed on the market and used as an additive consisting of a preparation. 2. In the directions for use of the additive and premixture, indicate the storage and stability conditions. 3. For safety: breathing protection, safety glasses and gloves shall be worn during handling. 4. The additive may be used in water for drinking. 19 May 2025 3a911 L-carnitine L-tartrate Additive composition L-carnitine L-tartrate Active substance L-carnitine L-tartrate C18H36N2O12 CAS No: 36687-82-8 L-carnitine L-tartrate solid form produced by chemical synthesis: min. 97 %. Method of Analysis (1) For the determination of L-carnitine L-tartrate in the feed additive: potentiometric back-titration. For the determination of L-carnitine L-tartrate (expressed as L-carnitine) in premixtures: ion chromatography method with electrical conductivity detection (IC-ECD) or Spectrophotometric method after enzymatic reaction with carnitine-acetyl-transferase. For the determination of L-carnitine L-tartrate (expressed as L-carnitine) in feedingstuffs: Reversed Phase High Performance Liquid Chromatography (RP-HPLC) with fluorimetric detector or Spectrophotometric method after enzymatic reaction with carnitine-acetyl-transferase. For the determination of L-carnitine L-tartrate (expressed as L-carnitine) in water: potentiometric titration or Spectrophotometric method after enzymatic reaction with carnitine-acetyl-transferase. All animal species 1. In the directions for use of the additive and premixture, indicate the storage and stability conditions. 2. For safety: breathing protection, safety glasses and gloves shall be worn during handling. 3. The additive may be used in water for drinking. 19 May 2025 (1) Details of the analytical methods are available at the following address of the European Union Reference Laboratory for Feed Additives: https://ec.europa.eu/jrc/en/eurl/feed-additives/evaluation-reports | nan | [
"Name: Commission Implementing Regulation (EU) 2015/662 of 28 April 2015 concerning the authorisation of L-carnitine and L-carnitine L-tartrate as feed additives for all animal species (Text with EEA relevance) Type: Implementing Regulation Subject Matter: agricultural activity; health; marketing; EU institutions and European civil service; foodstuff Date Published: nan 29.4.2015 EN Official Journal of the European Union L 110/5 COMMISSION IMPLEMENTING REGULATION (EU) 2015/662 of 28 April 2015 concerning the authorisation of L-carnitine and L-carnitine L-tartrate as feed additives for all animal species (Text with EEA relevance) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Regulation (EC) No 1831/2003 of the European Parliament and of the Council of 22 September 2003 on additives for use in animal nutrition (1), and in particular Article 9(2) thereof, Whereas: (1) Regulation (EC) No 1831/2003 provides for the authorisation of additives for use in animal nutrition and for the grounds and procedures for granting such authorisation. Article 10 of that Regulation provides for the re-evaluation of additives authorised pursuant to Council Directive 70/524/EEC (2).",
"(2) L-carnitine and L-carnitine L-tartrate were authorised without a time limit in accordance with Directive 70/524/EEC as feed additives for all animal species. Those products were subsequently entered in the Register of feed additives as existing products, in accordance with Article 10(1) of Regulation (EC) No 1831/2003. (3) In accordance with Article 10(2) of Regulation (EC) No 1831/2003, in conjunction with Article 7 thereof, two applications were submitted for the re-evaluation of L-carnitine and its preparations and L-carnitine L-tartrate for all animal species and, in accordance with Article 7 of that Regulation, for a new use in water for drinking. The applicants requested these additives to be classified in the additive category nutritional additives. Those applications were accompanied by the particulars and documents required under Article 7(3) of Regulation (EC) No 1831/2003.",
"(4) The European Food Safety Authority (the Authority) concluded in its opinions of 24 April 2012 (3) that, under the proposed conditions of use in feed and in water for drinking, L-carnitine and L-carnitine L-tartrate do not have adverse effects on animal or human health or the environment. The Authority concluded that L-carnitine and L-carnitine L-tartrate are regarded as effective sources of L-carnitine. The Authority further concluded that no safety concerns would arise for users.",
"The Authority does not consider that there is a need for specific requirements of post-market monitoring. It also verified the report on the method of analysis of the feed additives in feed and in water submitted by the Reference Laboratory set up by Regulation (EC) No 1831/2003. (5) The assessment of L-carnitine and L-carnitine L-tartrate shows that the conditions for authorisation, as provided for in Article 5 of Regulation (EC) No 1831/2003, are satisfied. Accordingly, the use of these substances should be authorised as specified in the Annex to this Regulation. (6) Since safety reasons do not require the immediate application of the modifications to the conditions of authorisation, it is appropriate to allow a transitional period for interested parties to prepare themselves to meet the new requirements resulting from the authorisation.",
"(7) The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed, HAS ADOPTED THIS REGULATION: Article 1 The substances specified in the Annex, belonging to the additive category nutritional additives and to the functional group vitamins, pro-vitamins and chemically well-defined substances having similar effect, are authorised as additives in animal nutrition subject to the conditions laid down in that Annex. Article 2 1. The substances specified in the Annex and premixtures containing those substances which are produced and labelled before 19 November 2015 in accordance with the rules applicable before 19 May 2015 may continue to be placed on the market and used until the existing stocks are exhausted. 2. Compound feed and feed materials containing the substances specified in the Annex which are produced and labelled before 19 November 2015 in accordance with the rules applicable before 19 May 2015 may continue to be placed on the market and used until the existing stocks are exhausted if they are intended for food producing animals. 3.",
"Compound feed and feed materials containing the substances specified in the Annex which are produced and labelled before 19 May 2017 in accordance with the rules applicable before 19 May 2015 may continue to be placed on the market and used until the existing stocks are exhausted if they are intended for non-food producing animals. Article 3 This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.",
"This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 28 April 2015. For the Commission The President Jean-Claude JUNCKER (1) OJ L 268, 18.10.2003, p. 29. (2) Council Directive 70/524/EEC of 23 November 1970 concerning additives in feedingstuffs (OJ L 270, 14.12.1970, p. 1). (3) EFSA Journal 2012;10(5):2676 and EFSA Journal 2012;10(5):2677. ANNEX Identification number of the additive Name of the holder of authorisation Additive Composition, chemical formula, description, analytical method Species or category of animal Maximum age Minimum content Maximum content Other provisions End of period of authorisation mg of active substance/kg of complete feedingstuff with a moisture content of 12 % or mg of the active substance/l of water Category of nutritional additives. Functional group: vitamins, provitamins and chemically well-defined substances having a similar effect 3a910 L-carnitine Additive composition L-carnitine Active substance L-carnitine C7H15NO3 CAS No: 541-15-1 L-carnitine solid form produced by chemical synthesis: min. 97 %.",
"Method of Analysis (1) For the determination of L-carnitine in the feed additive: titration with perchloric acid (Ph Eur 6th edition, monograph 1339) For the determination of L-carnitine in premixtures: ion chromatography method with electrical conductivity detection (IC-ECD) or Spectrophotometric method after enzymatic reaction with carnitine-acetyl-transferase. For the determination of L-carnitine in feedingstuffs: Reversed Phase High Performance Liquid Chromatography (RP-HPLC) with fluorimetric detector or Spectrophotometric method after enzymatic reaction with carnitine-acetyl-transferase. For the determination of L-carnitine in water: potentiometric titration or Spectrophotometric method after enzymatic reaction with carnitine-acetyl-transferase. All animal species 1. L-carnitine may be placed on the market and used as an additive consisting of a preparation. 2.",
"In the directions for use of the additive and premixture, indicate the storage and stability conditions. 3. For safety: breathing protection, safety glasses and gloves shall be worn during handling. 4. The additive may be used in water for drinking. 19 May 2025 3a911 L-carnitine L-tartrate Additive composition L-carnitine L-tartrate Active substance L-carnitine L-tartrate C18H36N2O12 CAS No: 36687-82-8 L-carnitine L-tartrate solid form produced by chemical synthesis: min. 97 %. Method of Analysis (1) For the determination of L-carnitine L-tartrate in the feed additive: potentiometric back-titration. For the determination of L-carnitine L-tartrate (expressed as L-carnitine) in premixtures: ion chromatography method with electrical conductivity detection (IC-ECD) or Spectrophotometric method after enzymatic reaction with carnitine-acetyl-transferase. For the determination of L-carnitine L-tartrate (expressed as L-carnitine) in feedingstuffs: Reversed Phase High Performance Liquid Chromatography (RP-HPLC) with fluorimetric detector or Spectrophotometric method after enzymatic reaction with carnitine-acetyl-transferase.",
"For the determination of L-carnitine L-tartrate (expressed as L-carnitine) in water: potentiometric titration or Spectrophotometric method after enzymatic reaction with carnitine-acetyl-transferase. All animal species 1. In the directions for use of the additive and premixture, indicate the storage and stability conditions. 2. For safety: breathing protection, safety glasses and gloves shall be worn during handling. 3. The additive may be used in water for drinking. 19 May 2025 (1) Details of the analytical methods are available at the following address of the European Union Reference Laboratory for Feed Additives: https://ec.europa.eu/jrc/en/eurl/feed-additives/evaluation-reports"
]
| https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/DVN/0EGYWY | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DAVIS, Circuit Judge. This is an appeal from a decree of the District Court holding that John H. Walker, defendant, was the original and sole inventor of the device in question and ordering the Commissioner of Patents to issue a patent to Walker for the invention and the plaintiff to assign all its right, title, and interest therein to Walker. The case is here on appeal from this decree. The evidence shows that in the spring of 1914 John II. Walker conceived the invention here in question, which is a device for automatically furnishing emergency electric lights for exits for theaters and other places of public gathering when the regular source of electric current supply is interrupted, in order to prevent panics which might occur if such places were unexpectedly plunged into total darkness. In March of 1914 Walker made a sketch of his device, described and explained it to one Maxwell II. Hite and to his own brother, Edward A. Walker. In the following year he described and explained it to one Chester Labarre. In 1918 Walker explained his invention to Harry S. Echternach, an electrical engineer and mechanic, and employed him to develop and perfect the invention into an operative, practical device for the purpose for which it was intended. Mr. Echternach during 1918 and 1919 worked on the device and constructed a model which partially functioned and produced some light, but he was unable to devote much time to the work and consequently made slow progress. In the year 1918 Joseph L. Dunn introduced Walker to Franklin C. Joutras, who was represented to be an honorable man of good repute and a mechanical engineer who had ample facilities to develop and perfect the invention quickly. Thereupon Walker entered into an oral contract with Joutras wherein it was agreed, in the presence of Dunn, by and between Walker and Joutras, that Joutras at his own expense would develop, build, and perfect the invention until it became a practical device for the purposes for which it was intended. When it was thus fully developed, Joutras, at his own expense, was to have the invention patented in the name of Walker, who was to assign to Joutras an interest in the profits to be derived from the sale of the units embodying the invention. Walker was to deliver to Joutras all data, drawings, and details of the invention so that Joutras could immediately begin the work of developing the invention. Accordingly, on December 18, 1919, Walker and Echternach explained and described the invention in detail (so far as it then could be done) to Joutras and delivered to him all drawings, sketches, data, and descriptions of the invention. The following day Joutras wrote to his friend, Dunn, telling him of the receipt of these things. At that time there was no intimation whatever of any kind indicating that Joutras had the slightest previous conception of the invention. He began the work of developing the invention, and continued until September 11, 1921, when he advised Walker that the solenoid was overloaded and that he was having trouble with it and also with the water turbine because of the backlash or pressure. Joutras then made requests of Walker for further drawings and suggestions as to how these troubles could be overcome. Walker, on September 21, 1921, *20pursuant to che request, went to Hoboken, took two more drawings, and fully explained them to Joutras, who seemed to work slowly and indifferently to perfect the device. ' In 1924 and 1925, however, he built about eight of the devices, and installed them in various places in Pennsylvania, for experimental purposes only, but not one of them worked properly. It required time, patience, and skill to perfect this device. The reasons for this are set forth in Walker’s brief as follows: “A device to automatically furnish emergency electric exit lights for places of public gathering, when the regular source of electric current supply might be interrupted, and .thereby prevent panics which would occur if such places were unexpectedly plunged into total darkness, which panics usually result in loss of human life and much injury to persons, and due .also to the variable conditions under which such invention would have to be installed in various places, such as the variable water pressure at various places; the variable temperatures at different places and times; the variable differences of care and lack of care given to the device at different places ánd times; the variable lengths of time when such devices would remain non-operating or not functioning, by reason of the outside or main source of electric current supply not being interrupted, sometimes lasting for years, in which time the device would not be called upon to function and would remain idle and subject to corrosion and other deleterious effects and lack of care and attention; required that such device be developed to the highest possible state of efficiency. “It was necessary that long and varied experimental use and tests under variable conditions and at various places be made of said invention, which tests and experiments could not be made in a laboratory, as all of the various conditions could not be duplicated, before it could, with any reasonable degree of moral certainty or good conscience, be claimed to be a useful or practical device for the purpose for which it was intended and invented. Any failure of the invention to function, if the outside source óf electric current supply should be interrupted, would probably result in a panic, death of persons and much injury to human beings. Therefore, in good conscience, no one could or should apply for a patent on such an invention until it was fully perfected and proved by long and varied experimental and actual use and tests to be efficient and wholly dependable, regardless of the various conditions under which it was installed.” In 1926 the invention as conceived by Walker was fully developed and perfected by Joutras, his employees and assistants, without any substantial changes or the addition of other elements. Without the knowledge of Walker and in violation of his agreement with him, Joutras and his business associate, James Landers, on or about April 1, 1922, secretly made application in their own names to the United States • Patent Office for a patent for Walker’s invention. This application they assigned to the Central Station Equipment Company, o,f which Joutras was vice president and Landers secretary, on October 25, 1925. On May 14, 1926, the Central Company sold the exclusive right to the invention to the Utilities Service, Inc., plaintiff .herein. On October 21, 1927, within two years of the time when Walker claimed the invention had become perfected, he made application for a patent for the invention as the sole and original inventor of the “Hydro-Electric Emergency Lighting Device,” or as designated in the application as an “Emergency Lighting and Power Unit,” which was substantially the invention for which Joutras and Landers had made application. Thereupon the Commissioner of Patents declared an interference. The interference examiner and the law examiner found that Walker was the sole and original inventor, but that he was not entitled to letters patent because the invention had been in public use for more than two years before he filed his application. The plaintiff, who claims to own the invention, filed a bill in the District Court, ■under section 4915 of the Revised Statutes (35 USCA § 63), in which he prayed that Walker be directed to defend the suit; that Joutras and Landers be decreed to be the true,- original, and first inventors; and that the Commissioner of Patents be “authorized” to issue a patent to it. Walker filed an answer and counterclaim wherein he prayed that he be decreed to be the sole and original inventor and that Joutras, Landers, et al. be directed to assign to him all their right, title, and interest in and to their application and that letters patent be issued to him for the invention. *21The case was referred by the court to a special master to take the testimony and report his findings of fact and conclusion of law to the court. The master found that Walker was the first and original inventor, and that the invention “was not mechanically developed or perfected or proved efficient or practical for the purposes for which it was intended until the year 1926,” which was contrary to the finding of the interference examiner and the law examiner. He recommended that letters patent should issue to Walker for the invention. Exceptions were filed to the special master’s report, but the learned trial judge dismissed them and entered a decree to the effect that Walker was the first and original inventor; that the invention was not in public use two years before he filed his application on October 25, 1927, and ordered the plaintiff to assign all its right, title, and interest in and to the patent application to Walker. He further directed the Commissioner of Patents to issue a patent to Walker, and the plaintiff to pay to Walker his. expenses incurred of $18,371. From this decree the plaintiff appealed. No question has been raised by any one as to the patentability of the invention provided the application was made in time. The Commissioner of Patents did not refuse a patent to Walker because of the lack of merit or patentability of the invention, but solely on the ground that he did not make his application within two years after the invention had been reduced to public use. If Joutras and Landers were the original and sole inventors, the plaintiff as owner of their application is entitled to a patent; but if Walker was the first and original inventor, he is entitled to a patent if he made his application within two years after it was reduced to public use. The court specifically found that beginning with December 18, 1919, and continuing until the beginning of the year 1926, Walker, Joutras, and Landers conferred and worked together for the development and perfection of the invention. During this period, from 1919 to 1926, the court found that many units embodying the emergency lighting equipment of the invention were installed in many places in Pennsylvania, but in no instance did the units develop that perfection which was necessary to make the same a firm, stable, and lasting piece of machinery for furnishing electric light in buildings of various kinds and uses, where people were congregated, to take the place of the regular electric lighting and current. The special master and court expressly found that: “37. The application for letters patent by said John H. Walker, the defendant, was made and filed within two years from the date when said invention, the invention in question, was developed, tested and made into a useful, practical and operative device as an emergency lighting device to take the place of the regular lighting device in any building where the same failed to operate. The said development and reduction to practice did not take place until after the beginning of the year 1926. “38. The invention in question prior to the first of the year 1926 was never sold nor put on sale to the general public or to any other. “39. The invention in question was never abandoned either actually or constructively, by the defendant, John H. Walker, or by any one else with his knowledge and consent, nor openly by him or any one else. “40. The invention in question never became, prior to the year 1926, nor since, subject to public use, or sale made of the invention or any units embodying the invention, by John H. Walker, the defendant, Franklin C. Joutras or James Landers, or any of their associates, or the Central Station Equipment Company or the Utilities Service, Inc., plaintiff in this suit. “41. The invention in question is the sole invention of John H. Walker, the defendant, and the said John H. Walker, the defendant, is the original first inventor of said invention.” Joutras, who would naturally not be too friendly to Walker, came up from Miami for the trial, and testified as follows : “While I felt that the decision of the patent office awarding this patent to John H. Walker may not have met with my approval, I would naturally abide by their decision, but when it comes to th'e point of declaring this item one of public use the decision is absolutely unfair in my opinion, and I decided regardless of the situation generally to come north and offer what little service I could to prevent this injustice.” “Q. Did you and your associate in the development of the device in question, ever at any time prior to the beginning of the year 1926, succeed in developing or improving the device in question to a point *22of efficiency where it was useful for the purpose for which it was intended, or such as would be finally approved by the Department of Labor and Industry of the State of Pennsylvania? A. No, sir, we did not. “Q. You did, under the certificate of approval which has been marked defendant’s exhibit No. 2, place or install a number of the units or devices in various places in the State of Pennsylvania, did you not? A. Yes, sir, we did. “Q. Were any of those devices so placed, as referred to in the last question and answer ever sold or placed or installed as positively approved equipment in _ any place, or were they only placed for the purpose of experimentation, development and improvement? A. They were only placed for experimentation, development and improvement and so that the Department of Labor and Industry could watch and check their operation. “Q. Prior to the year 1926,1 understand you had entire control and supervision of placing and installation of the device in question, is that correct? A. That is correct. “Q. Did either you or the Central Station Equipment Company or’ the Utilities Service, Inc., ever sell to anybody one of the devices in question, prior to the year 1926 ? - A. I did not and we did not, and by ‘we’ I mean the Central Station Equipment Company and Utilities Service, Inc'. “Q. Is it or is it not true that every device, that is the hydroelectric emergency lighting device which we are discussing, which were installed prior to the beginning of the year 1926, was installed only for the purpose of experimentation, testing and development of said device, and that the Department of Labor and Industry of the State of Pennsylvania, and each of the respective owners and managers of the places in which said device was installed, and the respective contractors who installed such devices, were fully informed and knew and agreed that such devices were installed only for the purpose of experimentation, testing and development, with the understanding that it was the desire of all the parties concerned and mentioned and referred to in this question that such device should be perfected for the purpose for which it was intended, if possible? A-That is absolutely true.” The evidence rather clearly shows that the invention was not perfected and reduced to public use until in the year 1920. Many tests had been made under changing conditions and at various places before the inventor could truthfully say with any degree of certainty that the invention was useful or that the device by which it was carried out was practical. While several devices were constructed, set up, and tried out in a few places and establishments in Pennsylvania under the supervision of Joutras, none were paid for, and they were purely for experiment and development of the patent. Under such facts the cases of ■ which Elizabeth v. American Nicholson Pavement Company, 97 U. S. 126, 133-137, 24 L. Ed. 1000, is typical, hold that such experimental use in order to perfect the invention does not constitute reduction to public use within the meaning of the statute. The plaintiff says that there is “no jurisdiction of counterclaim alleging fraud under section 4915, R. S.,” and if the patent is denied to it, the court did not have jurisdiction to award it to Walker. This section (35 USCA § 63) provides: “Whenever a patent on application is refused, either by the Commissioner of Patents or by the Court of Appeals of the District of Columbia upon appeal from the commissioner, the applicant may have remedy by bill in equity; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or for any part thereof, as the facts in the case may appear. And such adjudication, if it be in'favor of the right of the applicant, shall authorize the commissioner to issue such patent on the applicant filing in the Patent Office a copy of the adjudication, and otherwise complying with the requirements of law.” Appellant says that jurisdiction under this section is limited to adjudging that the plaintiff who is “the applicant” is entitled “to receive a patent for his invention.” The statute so provides and, plaintiff says, the court cannot go outside the statute, which is the foundation of the action, to assume to itself powers and authority not found in the statute. In support of its contention plaintiff quotes the following from Illingworth v. Atha (C. C. N. J. 1890) 42 F. 141, 144: “This is purely a statutory proceeding, and the court cannot go outside the statute which is the founda*23tion of the action to assume to itself powers not found in the purview of the act. The section under consideration has but a single object, — to provide a way by which an unsuccessful applicant for letters patent, notwithstanding the rejection of his claim by the commissioner of patents, may obtain them through an adjudication, in favor of his right thereto, by a court of equity having cognizance of the subject-matter; and, as the object of the section is single, so is the power of the court plainly limited under it to the accomplishment of that obj ect.” The case of Illingworth v. Atha, supra, was decided in 1890, long before the Supreme Court promulgated Equity Rule 30 (28 USCA following section 723), on November 4, 1912, and under section 4915 of the Revised Statutes, standing alone, as it did in 1890, Walker might not be entitled to the relief which he is seeking. The second paragraph of rule 30 provides that: “The answer must state in short and simple form any counterclaim arising out of the transaction which is the subject-matter of the suit, and may, without cross-bill, set up any set-off or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counterclaim, so set up, shall have the same effect as a cross-suit, so as to enable the court to pronounce a final decree in the same suit on both the original and the cross-claims.” This rule has been the subject of two lines of conflicting decisions. The one line holds that the rule authorizes the defendant to set up in his answer any counterclaim arising out of the transaction, which is the subject-matter of the suit and which, prior to the adoption of the rule, might have been set up in a cross-bill. The other line holds that the defendant in his answer must set up such a counterclaim. He has no option in the matter. But he may, though he is not required to, set up any set-off or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him, even though such cause of action is wholly unconnected with the subject of the plaintiff’s suit. The following cases are typical of the second line of decisions: Electric Boat Company v. Lake Torpedo Boat Company (D. C. N. J. 1914) 215 F. 377; Paramount Hosiery Form Drying Company v. Walter Snyder Co. (D. C. Pa. 1917) 244 F. 192; Champion Spark Plug Company v. Champion Ignition Company (D. C. Mich. 1917) 247 F. 200; Victor Talking Machine Co. v. Brunswick-Balke-Collender Co. (D. C. Del. 1922) 279 F. 758. Equity Rule 30 was taken from or suggested by Order XIX, Rule 3, of the English Supreme Court of Judicature. It has always been held by the English courts construing that order that ■ independent causes of action in equity wholly unconnected with the claim of the plaintiff may be counterclaimed. It was the purpose of the new equity rules to simplify equity pleading and practice by limiting the pleadings to a statement of ultimate facts without evidence and by uniting in one action as many issues as could conveniently be disposed of therein. That the cases cited above declare the correct rule was settled by the Supreme Court in the case of American Mills Company v. American Surety Company of New York, 260 U. S. 360, 43 S. Ct. 149, 151, 67 L. Ed. 306. In that case the surety company filed a suit in a state court in New York against the mills company for the purpose of canceling and enjoining the enforcement of a certain guaranty made by the surety company upon which the mills company had sued it in the state courts in Georgia and Illinois on the ground that the guaranty of the surety company had been secured by fraud. Upon final hearing the court entered a decree canceling the guaranty. This was affirmed by the Circuit Court of Appeals, 273 F. 67, and on appeal the Supreme Court affirmed the decree. As to the right to file the counterclaim the Supreme Court said, in construing Rule 30: “Petitioner’s construction of rule No. 30 would deny the successful defendant in the equity action this right. Petitioner seeks to avoid the dilemma by the suggestion that the rule would be satisfied by merely pleading the action at law without proving it, but this would be futile. The counterclaim referred to in the first part of the paragraph must therefore be an equitable counterclaim, one which like the set-off or counterclaim referred to in the next clause could be made the subject of an independent bill in equity. The counterclaim and the set-off and counterclaim in the two clauses are in pari materia except that the first grows out of the subject-matter of the bill and the other does not. That which grows out of the subject-matter of *24the bill must be set up in the interest of an end of litigation. That which does not may be set up if the defendant wishes in one proceeding in equity quickly to settle all equitable issues capable of trial between them in such a proceeding, even though they are not related. Buffalo Specialty Co. v. Vancleef (D. C.) 217 F. 91. The formality of cross-bills is not required, and the rule goes as far as possible to facilitate the prompt disposition of equitable controversies between the same litigants. The rule should be liberally construed to carry out its evident purpose of shortening litigation, but the limitation of counterclaims to those which are equitable is imperative.” In the case at bar the' issue in a broad sense was: Who was the true, original, and first inventor of the subject-matter of the interference and in consequence entitled to the patent? Did that issue arise out of the transaction which was the subject-matter of the suit? The plaintiff contended that Joutras and Landers were; Walker contended that he was. In the original bill plaintiff as assignee of the application for the patent prayed that the Commissioner of Patents be authorized to issue the patent to it. In the answer and counterclaim Walker alleged that Joutras and Landers were not the first, true, and original inventors but that he was, and prayed that ¿he Commissioner of Patents be authorized to issue the patent to him. “Transaction” is a word of flexible meaning and may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship. Moore v. New York Cotton Exchange, 270 U. S. 593, 610, 46 S. Ct. 367, 70 L. Ed. 750, 45 A. L. R. 1370. The issue, in our judgment, in this case arose out of the transaction which was the subject-matter of the suit. But if it did not, it was an issue which might be the subject of an independent suit in equity against the plaintiff in which the court could enter' a decree authorizing the Commissioner of Patents to grant a patent to Walker. Consequently Walker properly set up this issue in the counterclaim. In his counterclaim Walker alleged that he “had suffered great loss and damages by reason of the great delay in withholding the issue by the United States Patent Office of Letters Patent covering his said improvement and invention,” and prayed that the plaintiff be ordered and directed to pay to him the sum or amount of money which he had been compelled to pay and expend in protecting his rights and ownership of the invention by reason of the conspiracy and fraud by the plaintiff and its assignees. The special master found as a fact that Joseph L. Dunn for and on account of Walker, and upon the agreement of Walker to reimburse 'him, paid out in the defense of the interference proceedings and the expenses thereof the sum of $75,000, but that he was only able to produce checks and receipts for the sum of $18,371. He accordingly found that Walker was “damaged financially to the extent of $18,371.” The learned trial judge entered judgment against the plaintiff for that amount, $18,-371. The new equity rules did not change in any respect the line between law and equity as made by the federal statutes and the practice and decisions of the courts when the rules were promulgated. While rule 30 should be liberally construed to carry out its evident purpbse of shortening litigation, “the limitation of counterclaims to those which are equitable is imperative.” American Mills Company v. American Surety Company, 260 U. S. 360, 364, 365, 43 S. Ct. 149, 151, 67 L. Ed. 306. It follows that the decree of the District Court is affirmed in so far as it authorizes the Commissioner of Patents to issue the patent for the invention in question to Walker, and the affirmance carries with it the ordinary taxable costs usual to the prevailing party in suits in equity. But in so far as the decree awards “damages” which are properly the subject of a suit at law, the decree is reversed, and the counterclaim to that extent dismissed. | 07-23-2022 | [
"DAVIS, Circuit Judge. This is an appeal from a decree of the District Court holding that John H. Walker, defendant, was the original and sole inventor of the device in question and ordering the Commissioner of Patents to issue a patent to Walker for the invention and the plaintiff to assign all its right, title, and interest therein to Walker. The case is here on appeal from this decree. The evidence shows that in the spring of 1914 John II. Walker conceived the invention here in question, which is a device for automatically furnishing emergency electric lights for exits for theaters and other places of public gathering when the regular source of electric current supply is interrupted, in order to prevent panics which might occur if such places were unexpectedly plunged into total darkness.",
"In March of 1914 Walker made a sketch of his device, described and explained it to one Maxwell II. Hite and to his own brother, Edward A. Walker. In the following year he described and explained it to one Chester Labarre. In 1918 Walker explained his invention to Harry S. Echternach, an electrical engineer and mechanic, and employed him to develop and perfect the invention into an operative, practical device for the purpose for which it was intended. Mr. Echternach during 1918 and 1919 worked on the device and constructed a model which partially functioned and produced some light, but he was unable to devote much time to the work and consequently made slow progress.",
"In the year 1918 Joseph L. Dunn introduced Walker to Franklin C. Joutras, who was represented to be an honorable man of good repute and a mechanical engineer who had ample facilities to develop and perfect the invention quickly. Thereupon Walker entered into an oral contract with Joutras wherein it was agreed, in the presence of Dunn, by and between Walker and Joutras, that Joutras at his own expense would develop, build, and perfect the invention until it became a practical device for the purposes for which it was intended. When it was thus fully developed, Joutras, at his own expense, was to have the invention patented in the name of Walker, who was to assign to Joutras an interest in the profits to be derived from the sale of the units embodying the invention. Walker was to deliver to Joutras all data, drawings, and details of the invention so that Joutras could immediately begin the work of developing the invention. Accordingly, on December 18, 1919, Walker and Echternach explained and described the invention in detail (so far as it then could be done) to Joutras and delivered to him all drawings, sketches, data, and descriptions of the invention. The following day Joutras wrote to his friend, Dunn, telling him of the receipt of these things.",
"At that time there was no intimation whatever of any kind indicating that Joutras had the slightest previous conception of the invention. He began the work of developing the invention, and continued until September 11, 1921, when he advised Walker that the solenoid was overloaded and that he was having trouble with it and also with the water turbine because of the backlash or pressure. Joutras then made requests of Walker for further drawings and suggestions as to how these troubles could be overcome. Walker, on September 21, 1921, *20pursuant to che request, went to Hoboken, took two more drawings, and fully explained them to Joutras, who seemed to work slowly and indifferently to perfect the device. ' In 1924 and 1925, however, he built about eight of the devices, and installed them in various places in Pennsylvania, for experimental purposes only, but not one of them worked properly.",
"It required time, patience, and skill to perfect this device. The reasons for this are set forth in Walker’s brief as follows: “A device to automatically furnish emergency electric exit lights for places of public gathering, when the regular source of electric current supply might be interrupted, and .thereby prevent panics which would occur if such places were unexpectedly plunged into total darkness, which panics usually result in loss of human life and much injury to persons, and due .also to the variable conditions under which such invention would have to be installed in various places, such as the variable water pressure at various places; the variable temperatures at different places and times; the variable differences of care and lack of care given to the device at different places ánd times; the variable lengths of time when such devices would remain non-operating or not functioning, by reason of the outside or main source of electric current supply not being interrupted, sometimes lasting for years, in which time the device would not be called upon to function and would remain idle and subject to corrosion and other deleterious effects and lack of care and attention; required that such device be developed to the highest possible state of efficiency.",
"“It was necessary that long and varied experimental use and tests under variable conditions and at various places be made of said invention, which tests and experiments could not be made in a laboratory, as all of the various conditions could not be duplicated, before it could, with any reasonable degree of moral certainty or good conscience, be claimed to be a useful or practical device for the purpose for which it was intended and invented. Any failure of the invention to function, if the outside source óf electric current supply should be interrupted, would probably result in a panic, death of persons and much injury to human beings. Therefore, in good conscience, no one could or should apply for a patent on such an invention until it was fully perfected and proved by long and varied experimental and actual use and tests to be efficient and wholly dependable, regardless of the various conditions under which it was installed.” In 1926 the invention as conceived by Walker was fully developed and perfected by Joutras, his employees and assistants, without any substantial changes or the addition of other elements.",
"Without the knowledge of Walker and in violation of his agreement with him, Joutras and his business associate, James Landers, on or about April 1, 1922, secretly made application in their own names to the United States • Patent Office for a patent for Walker’s invention. This application they assigned to the Central Station Equipment Company, o,f which Joutras was vice president and Landers secretary, on October 25, 1925. On May 14, 1926, the Central Company sold the exclusive right to the invention to the Utilities Service, Inc., plaintiff .herein. On October 21, 1927, within two years of the time when Walker claimed the invention had become perfected, he made application for a patent for the invention as the sole and original inventor of the “Hydro-Electric Emergency Lighting Device,” or as designated in the application as an “Emergency Lighting and Power Unit,” which was substantially the invention for which Joutras and Landers had made application. Thereupon the Commissioner of Patents declared an interference. The interference examiner and the law examiner found that Walker was the sole and original inventor, but that he was not entitled to letters patent because the invention had been in public use for more than two years before he filed his application. The plaintiff, who claims to own the invention, filed a bill in the District Court, ■under section 4915 of the Revised Statutes (35 USCA § 63), in which he prayed that Walker be directed to defend the suit; that Joutras and Landers be decreed to be the true,- original, and first inventors; and that the Commissioner of Patents be “authorized” to issue a patent to it.",
"Walker filed an answer and counterclaim wherein he prayed that he be decreed to be the sole and original inventor and that Joutras, Landers, et al. be directed to assign to him all their right, title, and interest in and to their application and that letters patent be issued to him for the invention. *21The case was referred by the court to a special master to take the testimony and report his findings of fact and conclusion of law to the court.",
"The master found that Walker was the first and original inventor, and that the invention “was not mechanically developed or perfected or proved efficient or practical for the purposes for which it was intended until the year 1926,” which was contrary to the finding of the interference examiner and the law examiner. He recommended that letters patent should issue to Walker for the invention. Exceptions were filed to the special master’s report, but the learned trial judge dismissed them and entered a decree to the effect that Walker was the first and original inventor; that the invention was not in public use two years before he filed his application on October 25, 1927, and ordered the plaintiff to assign all its right, title, and interest in and to the patent application to Walker. He further directed the Commissioner of Patents to issue a patent to Walker, and the plaintiff to pay to Walker his. expenses incurred of $18,371. From this decree the plaintiff appealed.",
"No question has been raised by any one as to the patentability of the invention provided the application was made in time. The Commissioner of Patents did not refuse a patent to Walker because of the lack of merit or patentability of the invention, but solely on the ground that he did not make his application within two years after the invention had been reduced to public use. If Joutras and Landers were the original and sole inventors, the plaintiff as owner of their application is entitled to a patent; but if Walker was the first and original inventor, he is entitled to a patent if he made his application within two years after it was reduced to public use. The court specifically found that beginning with December 18, 1919, and continuing until the beginning of the year 1926, Walker, Joutras, and Landers conferred and worked together for the development and perfection of the invention.",
"During this period, from 1919 to 1926, the court found that many units embodying the emergency lighting equipment of the invention were installed in many places in Pennsylvania, but in no instance did the units develop that perfection which was necessary to make the same a firm, stable, and lasting piece of machinery for furnishing electric light in buildings of various kinds and uses, where people were congregated, to take the place of the regular electric lighting and current. The special master and court expressly found that: “37.",
"The application for letters patent by said John H. Walker, the defendant, was made and filed within two years from the date when said invention, the invention in question, was developed, tested and made into a useful, practical and operative device as an emergency lighting device to take the place of the regular lighting device in any building where the same failed to operate. The said development and reduction to practice did not take place until after the beginning of the year 1926. “38.",
"The invention in question prior to the first of the year 1926 was never sold nor put on sale to the general public or to any other. “39. The invention in question was never abandoned either actually or constructively, by the defendant, John H. Walker, or by any one else with his knowledge and consent, nor openly by him or any one else. “40. The invention in question never became, prior to the year 1926, nor since, subject to public use, or sale made of the invention or any units embodying the invention, by John H. Walker, the defendant, Franklin C. Joutras or James Landers, or any of their associates, or the Central Station Equipment Company or the Utilities Service, Inc., plaintiff in this suit. “41. The invention in question is the sole invention of John H. Walker, the defendant, and the said John H. Walker, the defendant, is the original first inventor of said invention.” Joutras, who would naturally not be too friendly to Walker, came up from Miami for the trial, and testified as follows : “While I felt that the decision of the patent office awarding this patent to John H. Walker may not have met with my approval, I would naturally abide by their decision, but when it comes to th'e point of declaring this item one of public use the decision is absolutely unfair in my opinion, and I decided regardless of the situation generally to come north and offer what little service I could to prevent this injustice.” “Q.",
"Did you and your associate in the development of the device in question, ever at any time prior to the beginning of the year 1926, succeed in developing or improving the device in question to a point *22of efficiency where it was useful for the purpose for which it was intended, or such as would be finally approved by the Department of Labor and Industry of the State of Pennsylvania? A. No, sir, we did not. “Q. You did, under the certificate of approval which has been marked defendant’s exhibit No. 2, place or install a number of the units or devices in various places in the State of Pennsylvania, did you not? A. Yes, sir, we did. “Q. Were any of those devices so placed, as referred to in the last question and answer ever sold or placed or installed as positively approved equipment in _ any place, or were they only placed for the purpose of experimentation, development and improvement?",
"A. They were only placed for experimentation, development and improvement and so that the Department of Labor and Industry could watch and check their operation. “Q. Prior to the year 1926,1 understand you had entire control and supervision of placing and installation of the device in question, is that correct? A. That is correct. “Q. Did either you or the Central Station Equipment Company or’ the Utilities Service, Inc., ever sell to anybody one of the devices in question, prior to the year 1926 ? - A. I did not and we did not, and by ‘we’ I mean the Central Station Equipment Company and Utilities Service, Inc'. “Q. Is it or is it not true that every device, that is the hydroelectric emergency lighting device which we are discussing, which were installed prior to the beginning of the year 1926, was installed only for the purpose of experimentation, testing and development of said device, and that the Department of Labor and Industry of the State of Pennsylvania, and each of the respective owners and managers of the places in which said device was installed, and the respective contractors who installed such devices, were fully informed and knew and agreed that such devices were installed only for the purpose of experimentation, testing and development, with the understanding that it was the desire of all the parties concerned and mentioned and referred to in this question that such device should be perfected for the purpose for which it was intended, if possible?",
"A-That is absolutely true.” The evidence rather clearly shows that the invention was not perfected and reduced to public use until in the year 1920. Many tests had been made under changing conditions and at various places before the inventor could truthfully say with any degree of certainty that the invention was useful or that the device by which it was carried out was practical. While several devices were constructed, set up, and tried out in a few places and establishments in Pennsylvania under the supervision of Joutras, none were paid for, and they were purely for experiment and development of the patent. Under such facts the cases of ■ which Elizabeth v. American Nicholson Pavement Company, 97 U. S. 126, 133-137, 24 L. Ed. 1000, is typical, hold that such experimental use in order to perfect the invention does not constitute reduction to public use within the meaning of the statute. The plaintiff says that there is “no jurisdiction of counterclaim alleging fraud under section 4915, R. S.,” and if the patent is denied to it, the court did not have jurisdiction to award it to Walker.",
"This section (35 USCA § 63) provides: “Whenever a patent on application is refused, either by the Commissioner of Patents or by the Court of Appeals of the District of Columbia upon appeal from the commissioner, the applicant may have remedy by bill in equity; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or for any part thereof, as the facts in the case may appear. And such adjudication, if it be in'favor of the right of the applicant, shall authorize the commissioner to issue such patent on the applicant filing in the Patent Office a copy of the adjudication, and otherwise complying with the requirements of law.” Appellant says that jurisdiction under this section is limited to adjudging that the plaintiff who is “the applicant” is entitled “to receive a patent for his invention.” The statute so provides and, plaintiff says, the court cannot go outside the statute, which is the foundation of the action, to assume to itself powers and authority not found in the statute.",
"In support of its contention plaintiff quotes the following from Illingworth v. Atha (C. C. N. J. 1890) 42 F. 141, 144: “This is purely a statutory proceeding, and the court cannot go outside the statute which is the founda*23tion of the action to assume to itself powers not found in the purview of the act. The section under consideration has but a single object, — to provide a way by which an unsuccessful applicant for letters patent, notwithstanding the rejection of his claim by the commissioner of patents, may obtain them through an adjudication, in favor of his right thereto, by a court of equity having cognizance of the subject-matter; and, as the object of the section is single, so is the power of the court plainly limited under it to the accomplishment of that obj ect.” The case of Illingworth v. Atha, supra, was decided in 1890, long before the Supreme Court promulgated Equity Rule 30 (28 USCA following section 723), on November 4, 1912, and under section 4915 of the Revised Statutes, standing alone, as it did in 1890, Walker might not be entitled to the relief which he is seeking.",
"The second paragraph of rule 30 provides that: “The answer must state in short and simple form any counterclaim arising out of the transaction which is the subject-matter of the suit, and may, without cross-bill, set up any set-off or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counterclaim, so set up, shall have the same effect as a cross-suit, so as to enable the court to pronounce a final decree in the same suit on both the original and the cross-claims.” This rule has been the subject of two lines of conflicting decisions. The one line holds that the rule authorizes the defendant to set up in his answer any counterclaim arising out of the transaction, which is the subject-matter of the suit and which, prior to the adoption of the rule, might have been set up in a cross-bill.",
"The other line holds that the defendant in his answer must set up such a counterclaim. He has no option in the matter. But he may, though he is not required to, set up any set-off or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him, even though such cause of action is wholly unconnected with the subject of the plaintiff’s suit. The following cases are typical of the second line of decisions: Electric Boat Company v. Lake Torpedo Boat Company (D. C. N. J. 1914) 215 F. 377; Paramount Hosiery Form Drying Company v. Walter Snyder Co. (D. C. Pa. 1917) 244 F. 192; Champion Spark Plug Company v. Champion Ignition Company (D. C. Mich. 1917) 247 F. 200; Victor Talking Machine Co. v. Brunswick-Balke-Collender Co. (D. C. Del. 1922) 279 F. 758. Equity Rule 30 was taken from or suggested by Order XIX, Rule 3, of the English Supreme Court of Judicature. It has always been held by the English courts construing that order that ■ independent causes of action in equity wholly unconnected with the claim of the plaintiff may be counterclaimed. It was the purpose of the new equity rules to simplify equity pleading and practice by limiting the pleadings to a statement of ultimate facts without evidence and by uniting in one action as many issues as could conveniently be disposed of therein.",
"That the cases cited above declare the correct rule was settled by the Supreme Court in the case of American Mills Company v. American Surety Company of New York, 260 U. S. 360, 43 S. Ct. 149, 151, 67 L. Ed. 306. In that case the surety company filed a suit in a state court in New York against the mills company for the purpose of canceling and enjoining the enforcement of a certain guaranty made by the surety company upon which the mills company had sued it in the state courts in Georgia and Illinois on the ground that the guaranty of the surety company had been secured by fraud.",
"Upon final hearing the court entered a decree canceling the guaranty. This was affirmed by the Circuit Court of Appeals, 273 F. 67, and on appeal the Supreme Court affirmed the decree. As to the right to file the counterclaim the Supreme Court said, in construing Rule 30: “Petitioner’s construction of rule No. 30 would deny the successful defendant in the equity action this right. Petitioner seeks to avoid the dilemma by the suggestion that the rule would be satisfied by merely pleading the action at law without proving it, but this would be futile. The counterclaim referred to in the first part of the paragraph must therefore be an equitable counterclaim, one which like the set-off or counterclaim referred to in the next clause could be made the subject of an independent bill in equity.",
"The counterclaim and the set-off and counterclaim in the two clauses are in pari materia except that the first grows out of the subject-matter of the bill and the other does not. That which grows out of the subject-matter of *24the bill must be set up in the interest of an end of litigation. That which does not may be set up if the defendant wishes in one proceeding in equity quickly to settle all equitable issues capable of trial between them in such a proceeding, even though they are not related.",
"Buffalo Specialty Co. v. Vancleef (D. C.) 217 F. 91. The formality of cross-bills is not required, and the rule goes as far as possible to facilitate the prompt disposition of equitable controversies between the same litigants. The rule should be liberally construed to carry out its evident purpose of shortening litigation, but the limitation of counterclaims to those which are equitable is imperative.” In the case at bar the' issue in a broad sense was: Who was the true, original, and first inventor of the subject-matter of the interference and in consequence entitled to the patent?",
"Did that issue arise out of the transaction which was the subject-matter of the suit? The plaintiff contended that Joutras and Landers were; Walker contended that he was. In the original bill plaintiff as assignee of the application for the patent prayed that the Commissioner of Patents be authorized to issue the patent to it. In the answer and counterclaim Walker alleged that Joutras and Landers were not the first, true, and original inventors but that he was, and prayed that ¿he Commissioner of Patents be authorized to issue the patent to him. “Transaction” is a word of flexible meaning and may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship. Moore v. New York Cotton Exchange, 270 U. S. 593, 610, 46 S. Ct. 367, 70 L. Ed. 750, 45 A. L. R. 1370. The issue, in our judgment, in this case arose out of the transaction which was the subject-matter of the suit.",
"But if it did not, it was an issue which might be the subject of an independent suit in equity against the plaintiff in which the court could enter' a decree authorizing the Commissioner of Patents to grant a patent to Walker. Consequently Walker properly set up this issue in the counterclaim. In his counterclaim Walker alleged that he “had suffered great loss and damages by reason of the great delay in withholding the issue by the United States Patent Office of Letters Patent covering his said improvement and invention,” and prayed that the plaintiff be ordered and directed to pay to him the sum or amount of money which he had been compelled to pay and expend in protecting his rights and ownership of the invention by reason of the conspiracy and fraud by the plaintiff and its assignees. The special master found as a fact that Joseph L. Dunn for and on account of Walker, and upon the agreement of Walker to reimburse 'him, paid out in the defense of the interference proceedings and the expenses thereof the sum of $75,000, but that he was only able to produce checks and receipts for the sum of $18,371.",
"He accordingly found that Walker was “damaged financially to the extent of $18,371.” The learned trial judge entered judgment against the plaintiff for that amount, $18,-371. The new equity rules did not change in any respect the line between law and equity as made by the federal statutes and the practice and decisions of the courts when the rules were promulgated. While rule 30 should be liberally construed to carry out its evident purpbse of shortening litigation, “the limitation of counterclaims to those which are equitable is imperative.” American Mills Company v. American Surety Company, 260 U. S. 360, 364, 365, 43 S. Ct. 149, 151, 67 L. Ed. 306. It follows that the decree of the District Court is affirmed in so far as it authorizes the Commissioner of Patents to issue the patent for the invention in question to Walker, and the affirmance carries with it the ordinary taxable costs usual to the prevailing party in suits in equity.",
"But in so far as the decree awards “damages” which are properly the subject of a suit at law, the decree is reversed, and the counterclaim to that extent dismissed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6863551/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q ☒ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended June 30, 2015 OR ☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to Commission File No. 001-31332 LIQUIDMETAL TECHNOLOGIES, INC. (Exact name of Registrant as specified in its charter) Delaware 33-0264467 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 30452 Esperanza | [
"UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q ☒ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended June 30, 2015 OR ☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to Commission File No. 001-31332 LIQUIDMETAL TECHNOLOGIES, INC. (Exact name of Registrant as specified in its charter) Delaware 33-0264467 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 30452 Esperanza"
]
| 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 |
|
[Cite as State v. Smith, 2017-Ohio-4124.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2016-L-107 - vs - :
STANLEY T. SMITH, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2014 CRA 00965.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Michelle M. French, Law Offices of Michelle M. French, LLC, 28 West Jefferson Street, Jefferson, OH 44047 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, Stanley T. Smith, appeals from the September 29, 2016
judgment of the Lake County Court of Common Pleas, denying his pro se motion for jail-
time credit. Appellant’s appointed, appellate counsel has filed a brief and requested
leave to withdraw, pursuant to Anders v. California, 386 U.S. 738 (1967). Appellant was
served with the brief and subsequently filed a pro se appellate brief. After conducting an independent review of appellant’s case, we conclude the instant appeal is wholly
frivolous and affirm the trial court’s denial of appellant’s motion.
{¶2} On May 30, 2014, appellant was indicted in Ashtabula County for illegal
assembly or possession of chemicals for the manufacture of drugs, a felony of the third
degree, in violation of R.C. 2925.041. See Ashtabula County Case No. 2014-CR-
00207. Appellant entered an Alford plea and the trial court continued his bond, along
with sentencing, pending a pre-sentence investigation report.
{¶3} On December 8, 2014, appellant was charged in Lake County with illegal
assembly or possession of chemicals for the manufacture of drugs, a felony of the third
degree. See Lake County Case No. 2014 CRA 00965. Appellant did not post bond and
remained in the custody of the Lake County jail until January 27, 2015, when he was
conveyed from Lake County to Ashtabula County for sentencing in the Ashtabula case.
Appellant was sentenced to 30 months in that matter, with zero days of jail-time credit.
He was then returned to Lake County for disposition of the Lake case.
{¶4} On April 14, 2015, appellant pleaded guilty to the Lake county charge and
the case proceeded to sentencing on that date. The trial court ordered appellant to
serve a 24-month term of imprisonment on the charge, to be served consecutively to the
Ashtabula sentence. Appellant was given 50 days of jail-time credit.
{¶5} On June 3, 2015, appellant filed a pro-se motion for jail-time credit. The
state duly opposed the motion and, on June 10, 2015, the trial court denied the motion.
Subsequently, on September 26, 2016, appellant filed a successive pro-se motion for
jail-time credit, asserting the same argument posed in his first motion. The state again
2 opposed the motion and, on September 29, 2016, the trial court denied the second
motion. Appellant filed the instant appeal.
{¶6} On January 3, 2017, appointed appellate counsel filed a brief, pursuant to
Anders, supra. In Anders, the United States Supreme Court held that if appellate
counsel, after a conscientious examination of the record, finds an appeal to be wholly
frivolous, he or she should advise the court and request permission to withdraw. Id. at
744. This request to withdraw must be accompanied by a brief citing anything in the
record that could arguably support an appeal. Id. Further, counsel must furnish his or
her client with a copy of the brief and request to withdraw and give the client an
opportunity to raise any additional issues. Id. Once these requirements have been met,
the appellate court must review the entire record to determine whether the appeal is
wholly frivolous. Id. If the court finds the appeal wholly frivolous, the court may grant
counsel’s motion to withdraw and proceed to a decision on the merits. Id. If, however,
the court concludes the appeal is not frivolous, it must appoint new counsel for the
client. Id.
{¶7} Pursuant to Anders, counsel’s brief was properly served on appellant, who
filed a merit brief. As a possible challenge, counsel posited the following:
{¶8} “Did the trial court err to the prejudice of the appellant by failing to grant
the appellant the appropriate amount of jail time credit?”
{¶9} In his brief, appellant raised essentially the same error; to wit:
{¶10} “The trial court erred to the prejudice of appellant’s rights to due process
and equal protection of the law guaranteed by the United States and Ohio Constitutions
by failing to grant appellant credit for all time spent in the custody of the sheriff prior to
3 delivering appellant into the custody of the Ohio Department of Rehabilitation and
Corrections.”
{¶11} We must first address whether the foregoing challenges are barred by the
doctrine of res judicata. R.C. 2929.19(B)(2)(g)(iii) states that the “sentencing court
retains continuing jurisdiction to correct any error not previously raised at sentencing in
making a determination under division (B)(2)(g)(i) of this section.” R.C.
2929.19(B)(2)(g)(iii) allows an offender “at any time after sentencing, [to] file a motion in
the sentencing court to correct any error made in making a determination under division
of (B)(2)(g)(i) of this section.” Prior to the enactment of R.C. 2929.19(B)(2)(g)(iii), an
offender was able to seek correction of an error made in determining jail-time credit only
on direct appeal. See State ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio St. 3d 476, 2003-Ohio-2061, ¶10. Motions to correct errors made in determining jail-time credit
filed outside the time allowed for direct appeal were barred by the doctrine of res
judicata. See, e.g., State v. Spillan, 10th Dist. Franklin Nos. 06AP-50, 06AP-51, 06AP-
52, and 06AP-750, 2006-Ohio-4788, ¶12. Pursuant to R.C. 2929.19(B)(2)(g)(iii), res
judicata will not bar a motion to correct errors in jail-time credit filed after the time for
appeal has passed; this, however, does not imply that res judicata is never applicable to
such motions.
{¶12} On June 3, 2015, after the trial court entered sentence, appellant filed a
motion for jail-time credit, which the trial court denied. Appellant did not appeal that
judgment. Later, on September 26, 2016, appellant filed a second motion for jail-time
credit. The trial court again denied the motion and appellant filed the instant appeal.
Appellant had the right to appeal the judgment denying his first motion, but failed to do
4 so. Simply because res judicata does not operate to bar an initial, post-sentence
motion for jail-time credit, does not imply the doctrine is inapplicable to successive
motions. No injustice will result if res judicata is applied to bar appellant’s second
motion. Because the jail-time credit question is the only subject at issue in the
underlying judgment, and that question is barred by res judicata due to appellant’s
failure to appeal the court’s denial of his first motion, the instant appeal is wholly
frivolous.
{¶13} Even assuming the jail-time credit issue is not barred by res judicata, the
trial court did not err in denying the motion. On April 14, 2015, appellant was sentenced
to 24-months imprisonment, with 50 days jail-time credit (from December 8, 2014, the
day of his arrest in the underlying matter through January 26, 2015, the date he was
conveyed to Ashtabula County for sentencing on a separate charge). The 24-month
term was ordered to be served consecutively to his 30-month term ordered in the
Ashtabula County case.
{¶14} R.C. 2967.191 provides, in relevant part: “The department of rehabilitation
and correction shall reduce the stated prison term of a prisoner * * * by the total number
of days that the prisoner was confined for any reason arising out of the offense for
which the prisoner was convicted and sentenced.” (Emphasis added.) Appellant was
confined as a result of the underlying offense from December 8, 2014 through January
26, 2015, i.e., 50 days. Had the trial court ran appellant’s sentence in the underlying
matter concurrently with the Ashtabula sentence, appellant would have been entitled to
additional credit (from December 8, 2014 through April 14, 2015, the date of his
sentencing in Lake County). See State v. Fugate, 117 Ohio St. 3d 261, 2008-Ohio-856,
5 ¶22 (“When a defendant is sentenced to consecutive terms, the terms of imprisonment
are served one after another. Jail-time credit applied to one prison term gives full credit
that is due, because the credit reduces the entire length of the prison sentence.
However, when a defendant is sentenced to concurrent terms, credit must be applied
against all terms, because the sentences are served simultaneously.”) The trial court
did not sentence appellant to concurrent terms and, as a result, appellant was entitled
only to the 50-day credit. The trial court did not err in denying appellant’s motion.
{¶15} Our Anders review in the instant case is limited to the narrow issue of
whether the trial court erred in denying appellant’s motion for jail-time credit. We hold,
as a matter of law, the trial court properly denied that motion. We therefore conclude
the instant appeal is wholly frivolous. The judgment of the Lake County Court of
Common Pleas is hereby affirmed and counsel’s motion to withdraw is granted.
DIANE V. GRENDELL, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
______________________
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
{¶16} I respectfully dissent based on my dissenting opinions in similar matters
involving Anders. State v. Christian, 11th Dist. Trumbull No. 2013-T-0055, 2014-Ohio-
4882, ¶21-34; State v. Spears, 11th Dist. Ashtabula No. 2013-A-0027, 2014-Ohio-2695,
¶14-19; State v. Burnett, 11th Dist. Lake No. 2013-L-053, 2014-Ohio-1358, ¶29–34;
State v. Gibbs, 11th Dist. Geauga No. 2012-G-3123, 2014-Ohio-1341, ¶37-42.
6 7 | 06-05-2017 | [
"[Cite as State v. Smith, 2017-Ohio-4124.] IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO STATE OF OHIO, : OPINION Plaintiff-Appellee, : CASE NO. 2016-L-107 - vs - : STANLEY T. SMITH, : Defendant-Appellant. : Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2014 CRA 00965. Judgment: Affirmed. Charles E. Coulson, Lake County Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee). Michelle M. French, Law Offices of Michelle M. French, LLC, 28 West Jefferson Street, Jefferson, OH 44047 (For Defendant-Appellant).",
"CYNTHIA WESTCOTT RICE, P.J. {¶1} Appellant, Stanley T. Smith, appeals from the September 29, 2016 judgment of the Lake County Court of Common Pleas, denying his pro se motion for jail- time credit. Appellant’s appointed, appellate counsel has filed a brief and requested leave to withdraw, pursuant to Anders v. California, 386 U.S. 738 (1967). Appellant was served with the brief and subsequently filed a pro se appellate brief.",
"After conducting an independent review of appellant’s case, we conclude the instant appeal is wholly frivolous and affirm the trial court’s denial of appellant’s motion. {¶2} On May 30, 2014, appellant was indicted in Ashtabula County for illegal assembly or possession of chemicals for the manufacture of drugs, a felony of the third degree, in violation of R.C. 2925.041. See Ashtabula County Case No. 2014-CR- 00207. Appellant entered an Alford plea and the trial court continued his bond, along with sentencing, pending a pre-sentence investigation report. {¶3} On December 8, 2014, appellant was charged in Lake County with illegal assembly or possession of chemicals for the manufacture of drugs, a felony of the third degree.",
"See Lake County Case No. 2014 CRA 00965. Appellant did not post bond and remained in the custody of the Lake County jail until January 27, 2015, when he was conveyed from Lake County to Ashtabula County for sentencing in the Ashtabula case. Appellant was sentenced to 30 months in that matter, with zero days of jail-time credit. He was then returned to Lake County for disposition of the Lake case. {¶4} On April 14, 2015, appellant pleaded guilty to the Lake county charge and the case proceeded to sentencing on that date. The trial court ordered appellant to serve a 24-month term of imprisonment on the charge, to be served consecutively to the Ashtabula sentence. Appellant was given 50 days of jail-time credit. {¶5} On June 3, 2015, appellant filed a pro-se motion for jail-time credit. The state duly opposed the motion and, on June 10, 2015, the trial court denied the motion. Subsequently, on September 26, 2016, appellant filed a successive pro-se motion for jail-time credit, asserting the same argument posed in his first motion.",
"The state again 2 opposed the motion and, on September 29, 2016, the trial court denied the second motion. Appellant filed the instant appeal. {¶6} On January 3, 2017, appointed appellate counsel filed a brief, pursuant to Anders, supra. In Anders, the United States Supreme Court held that if appellate counsel, after a conscientious examination of the record, finds an appeal to be wholly frivolous, he or she should advise the court and request permission to withdraw. Id. at 744. This request to withdraw must be accompanied by a brief citing anything in the record that could arguably support an appeal. Id.",
"Further, counsel must furnish his or her client with a copy of the brief and request to withdraw and give the client an opportunity to raise any additional issues. Id. Once these requirements have been met, the appellate court must review the entire record to determine whether the appeal is wholly frivolous. Id. If the court finds the appeal wholly frivolous, the court may grant counsel’s motion to withdraw and proceed to a decision on the merits. Id.",
"If, however, the court concludes the appeal is not frivolous, it must appoint new counsel for the client. Id. {¶7} Pursuant to Anders, counsel’s brief was properly served on appellant, who filed a merit brief. As a possible challenge, counsel posited the following: {¶8} “Did the trial court err to the prejudice of the appellant by failing to grant the appellant the appropriate amount of jail time credit?” {¶9} In his brief, appellant raised essentially the same error; to wit: {¶10} “The trial court erred to the prejudice of appellant’s rights to due process and equal protection of the law guaranteed by the United States and Ohio Constitutions by failing to grant appellant credit for all time spent in the custody of the sheriff prior to 3 delivering appellant into the custody of the Ohio Department of Rehabilitation and Corrections.” {¶11} We must first address whether the foregoing challenges are barred by the doctrine of res judicata. R.C. 2929.19(B)(2)(g)(iii) states that the “sentencing court retains continuing jurisdiction to correct any error not previously raised at sentencing in making a determination under division (B)(2)(g)(i) of this section.” R.C.",
"2929.19(B)(2)(g)(iii) allows an offender “at any time after sentencing, [to] file a motion in the sentencing court to correct any error made in making a determination under division of (B)(2)(g)(i) of this section.” Prior to the enactment of R.C. 2929.19(B)(2)(g)(iii), an offender was able to seek correction of an error made in determining jail-time credit only on direct appeal. See State ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio St. 3d 476, 2003-Ohio-2061, ¶10. Motions to correct errors made in determining jail-time credit filed outside the time allowed for direct appeal were barred by the doctrine of res judicata. See, e.g., State v. Spillan, 10th Dist. Franklin Nos. 06AP-50, 06AP-51, 06AP- 52, and 06AP-750, 2006-Ohio-4788, ¶12. Pursuant to R.C.",
"2929.19(B)(2)(g)(iii), res judicata will not bar a motion to correct errors in jail-time credit filed after the time for appeal has passed; this, however, does not imply that res judicata is never applicable to such motions. {¶12} On June 3, 2015, after the trial court entered sentence, appellant filed a motion for jail-time credit, which the trial court denied. Appellant did not appeal that judgment. Later, on September 26, 2016, appellant filed a second motion for jail-time credit. The trial court again denied the motion and appellant filed the instant appeal. Appellant had the right to appeal the judgment denying his first motion, but failed to do 4 so. Simply because res judicata does not operate to bar an initial, post-sentence motion for jail-time credit, does not imply the doctrine is inapplicable to successive motions. No injustice will result if res judicata is applied to bar appellant’s second motion.",
"Because the jail-time credit question is the only subject at issue in the underlying judgment, and that question is barred by res judicata due to appellant’s failure to appeal the court’s denial of his first motion, the instant appeal is wholly frivolous. {¶13} Even assuming the jail-time credit issue is not barred by res judicata, the trial court did not err in denying the motion. On April 14, 2015, appellant was sentenced to 24-months imprisonment, with 50 days jail-time credit (from December 8, 2014, the day of his arrest in the underlying matter through January 26, 2015, the date he was conveyed to Ashtabula County for sentencing on a separate charge). The 24-month term was ordered to be served consecutively to his 30-month term ordered in the Ashtabula County case. {¶14} R.C. 2967.191 provides, in relevant part: “The department of rehabilitation and correction shall reduce the stated prison term of a prisoner * * * by the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted and sentenced.” (Emphasis added.)",
"Appellant was confined as a result of the underlying offense from December 8, 2014 through January 26, 2015, i.e., 50 days. Had the trial court ran appellant’s sentence in the underlying matter concurrently with the Ashtabula sentence, appellant would have been entitled to additional credit (from December 8, 2014 through April 14, 2015, the date of his sentencing in Lake County). See State v. Fugate, 117 Ohio St. 3d 261, 2008-Ohio-856, 5 ¶22 (“When a defendant is sentenced to consecutive terms, the terms of imprisonment are served one after another. Jail-time credit applied to one prison term gives full credit that is due, because the credit reduces the entire length of the prison sentence. However, when a defendant is sentenced to concurrent terms, credit must be applied against all terms, because the sentences are served simultaneously.”) The trial court did not sentence appellant to concurrent terms and, as a result, appellant was entitled only to the 50-day credit. The trial court did not err in denying appellant’s motion.",
"{¶15} Our Anders review in the instant case is limited to the narrow issue of whether the trial court erred in denying appellant’s motion for jail-time credit. We hold, as a matter of law, the trial court properly denied that motion. We therefore conclude the instant appeal is wholly frivolous. The judgment of the Lake County Court of Common Pleas is hereby affirmed and counsel’s motion to withdraw is granted. DIANE V. GRENDELL, J., concurs, COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion. ______________________ COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion. {¶16} I respectfully dissent based on my dissenting opinions in similar matters involving Anders. State v. Christian, 11th Dist.",
"Trumbull No. 2013-T-0055, 2014-Ohio- 4882, ¶21-34; State v. Spears, 11th Dist. Ashtabula No. 2013-A-0027, 2014-Ohio-2695, ¶14-19; State v. Burnett, 11th Dist. Lake No. 2013-L-053, 2014-Ohio-1358, ¶29–34; State v. Gibbs, 11th Dist. Geauga No. 2012-G-3123, 2014-Ohio-1341, ¶37-42. 6 7"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4174372/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
The plaintiffs claimed title to the land in controversy by color and possession. Upon an examination of the record we find no error in his Honor's rulings upon the evidence. The contested matters were largely of fact, and they were submitted to the jury in a charge following well-settled principles and free from error. No error. | 07-06-2016 | [
"The plaintiffs claimed title to the land in controversy by color and possession. Upon an examination of the record we find no error in his Honor's rulings upon the evidence. The contested matters were largely of fact, and they were submitted to the jury in a charge following well-settled principles and free from error. No error."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3672183/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
988 F.2d 1211 Banningv.State Farm* NO. 92-2751 United States Court of Appeals,Fifth Circuit. Mar 17, 1993
1 Appeal From: S.D.Tex.
2 DISMISSED.
* Fed.R.App.P. 34(a); 5th Cir.R. 34.2 | 08-23-2011 | [
"988 F.2d 1211 Banningv.State Farm* NO. 92-2751 United States Court of Appeals,Fifth Circuit. Mar 17, 1993 1 Appeal From: S.D.Tex. 2 DISMISSED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2"
]
| https://www.courtlistener.com/api/rest/v3/opinions/602574/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 1205597
Decision Date: 02/14/12 Archive Date: 02/23/12
DOCKET NO. 05-15 058 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington
THE ISSUES
1. Entitlement to service connection for diabetes mellitus.
2. Entitlement to service connection for amputation of the left toe as secondary to diabetes mellitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Andrew Ahlberg, Counsel
INTRODUCTION
The Veteran served on active duty from August 1965 to June 1966.
This case was previously before the Board of Veterans' Appeals (Board) on appeal from rating action by a Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded for additional development in August 2008 and September 2009.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
In May 2008, a hearing was held before a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c). The Judge who presided at this hearing has retired from the Board. The law requires that the Veterans Law Judge who conducts the hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707. As such, the Veteran was issued a letter in October 2011 informing him of his right to attend a hearing before another Veterans Law Judge. A response from the Veteran received at the Board in December 2011 indicated he wished to appear at a hearing before a Veterans Law Judge at the RO. Therefore, the appeal must be remanded so the Veteran can be scheduled for a personal hearing before the Board to be held at his local RO as requested. 38 C.F.R. § 20.704 (2011).
Accordingly, the case is REMANDED for the following action:
The RO should take appropriate steps to schedule the Veteran for a Board travel board hearing at the RO. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The purpose of this REMAND is to satisfy a hearing request, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
_________________________________________________
ALAN S. PEEVY
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) (2011). | 02-14-2012 | [
"Citation Nr: 1205597 Decision Date: 02/14/12 Archive Date: 02/23/12 DOCKET NO. 05-15 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for amputation of the left toe as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to June 1966. This case was previously before the Board of Veterans' Appeals (Board) on appeal from rating action by a Department of Veterans Affairs (VA) Regional Office (RO).",
"The case was remanded for additional development in August 2008 and September 2009. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In May 2008, a hearing was held before a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c). The Judge who presided at this hearing has retired from the Board. The law requires that the Veterans Law Judge who conducts the hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707. As such, the Veteran was issued a letter in October 2011 informing him of his right to attend a hearing before another Veterans Law Judge. A response from the Veteran received at the Board in December 2011 indicated he wished to appear at a hearing before a Veterans Law Judge at the RO.",
"Therefore, the appeal must be remanded so the Veteran can be scheduled for a personal hearing before the Board to be held at his local RO as requested. 38 C.F.R. § 20.704 (2011). Accordingly, the case is REMANDED for the following action: The RO should take appropriate steps to schedule the Veteran for a Board travel board hearing at the RO. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The purpose of this REMAND is to satisfy a hearing request, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.",
"See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ ALAN S. PEEVY 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) (2011)."
]
| https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This final Office action is in response to Applicant’s amendment filed on 2/11/2022. Currently, claims 1-12 are pending and examined. Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-12 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. Re claim 1, lines 8-9; a citation “a length and a width and a longitudinal axis” is confusing and indefinite because does not clear that if this citation is the same “a length and a width and a longitudinal axis” cited in lines 5-6? Clarification is required. Claims 2-12 depending upon the rejected claim 1 are also rejected. Double Patenting The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b). The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp. Claims 1-12 stand rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of U.S. Patent No. 10,655,321. Although the claims at issue are not all structures of the instant claims are encompassed within the patented claims except for the first set of ventilation features and the second set of ventilation features overlap at least in part. However, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have the first and second ventilation features overlap at least in part in order to ensure moistures and water are properly drained, since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70. Response to Arguments Applicant’s arguments with respect to claim(s) 1-12 have been considered. The previous 102/103 rejections along with the objected to the drawings are being withdrawn; however, the Applicant has not filed a Terminal Disclaimer for the non-statutory double patenting rejection; therefore, the rejection is maintained and make it final. THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. Contact Information Any inquiry concerning this communication or earlier communication from the examiner should be directed to CHI Q. NGUYEN whose telephone number is (571) 272- 6847. The examiner can normally be reached on Monday-Friday from 7:30 am-4:00 pm. If attempt to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Brian Mattei can be reached at (571) 270-3238. Information regarding the status of an application may be obtained from the Patent Application Information /CHI Q NGUYEN/ Primary Examiner, Art Unit 3635
PNG media_image1.png 100 143 media_image1.png Greyscale | 2022-04-01T11:53:23 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This final Office action is in response to Applicant’s amendment filed on 2/11/2022. Currently, claims 1-12 are pending and examined. Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention. The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.",
"Claims 1-12 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. Re claim 1, lines 8-9; a citation “a length and a width and a longitudinal axis” is confusing and indefinite because does not clear that if this citation is the same “a length and a width and a longitudinal axis” cited in lines 5-6? Clarification is required. Claims 2-12 depending upon the rejected claim 1 are also rejected. Double Patenting The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir.",
"1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq.",
"for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b). The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp. Claims 1-12 stand rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of U.S. Patent No. 10,655,321.",
"Although the claims at issue are not all structures of the instant claims are encompassed within the patented claims except for the first set of ventilation features and the second set of ventilation features overlap at least in part. However, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have the first and second ventilation features overlap at least in part in order to ensure moistures and water are properly drained, since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70.",
"Response to Arguments Applicant’s arguments with respect to claim(s) 1-12 have been considered. The previous 102/103 rejections along with the objected to the drawings are being withdrawn; however, the Applicant has not filed a Terminal Disclaimer for the non-statutory double patenting rejection; therefore, the rejection is maintained and make it final. THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. Contact Information Any inquiry concerning this communication or earlier communication from the examiner should be directed to CHI Q. NGUYEN whose telephone number is (571) 272- 6847.",
"The examiner can normally be reached on Monday-Friday from 7:30 am-4:00 pm. If attempt to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Brian Mattei can be reached at (571) 270-3238. Information regarding the status of an application may be obtained from the Patent Application Information /CHI Q NGUYEN/ Primary Examiner, Art Unit 3635 PNG media_image1.png 100 143 media_image1.png Greyscale"
]
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Citation Nr: 0811382
Decision Date: 04/07/08 Archive Date: 04/23/08
DOCKET NO. 05-02 645 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to service connection for peripheral
neuropathy of the lower extremities.
2. Entitlement to service connection for peripheral
neuropathy of the upper extremities.
3. Entitlement to service connection for a bilateral foot
disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
B. Berry, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1968 to
December 1970.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a rating decision dated in January 2004 by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan.
The issue of service connection for a bilateral foot disorder
is addressed in the REMAND portion of the decision below and
is REMANDED to the RO via the Appeals Management Center
(AMC), in Washington, DC.
FINDINGS OF FACT
1. The competent medical evidence does not show a current
diagnosis of peripheral neuropathy of the lower extremities.
2. The competent medical evidence does not show a current
diagnosis of peripheral neuropathy of the upper extremities.
CONCLUSION OF LAW
1. Service connection is not warranted for a peripheral
neuropathy disorder of the lower extremities. 38 U.S.C.A. §
1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a)
(2007).
2. Service connection is not warranted for a peripheral
neuropathy disorder of the upper extremities. 38 U.S.C.A. §
1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a)
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veteran Claims Assistance Act (VCAA)
The Veterans Claims Assistance Act of 2000 (VCAA) imposes a
duty on the United States Department of Veterans Affairs (VA)
to notify and assist a claimant in developing a claim.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a
complete or substantially complete application for benefits,
VA is required to notify the claimant and his or her
representative, if any, of any information, and any medical
or lay evidence, that is necessary to substantiate the claim.
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Proper notice from VA
must inform the claimant of any information and evidence not
of record (1) that is necessary to substantiate the claim;
(2) that VA will seek to provide; (3) that the claimant is
expected to provide; and (4) must ask the claimant to provide
any evidence in her or his possession that pertains to the
claim in accordance with 38 C.F.R. § 3.159(b)(1). This
notice must be provided prior to an initial unfavorable
decision on a claim by the agency of original jurisdiction
(AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
A July 2003 VCAA letter informed the veteran of what evidence
was required to substantiate his claims for service
connection for peripheral neuropathy of the lower and upper
extremities. This letter also informed the veteran of his
and VA's respective duties for obtaining evidence. The VCAA
letter requested the veteran to provide any evidence in his
possession and he was informed that it was ultimately his
responsibility to ensure that VA received any evidence not in
the possession of the Federal government. Therefore, the
Board finds that the requirements of VCAA regarding the duty
to notify have been met and that VA has no further duty prior
to Board adjudication.
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S.
Court of Appeals for Veterans Claims held that, upon receipt
of an application for a service-connection claim, 38 U.S.C.
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating, or is necessary to substantiate, each of the
five elements of the claim, including notice of what is
required to establish service connection and that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
In this case, although the notice provided did not address
either the rating criteria or effective date provisions that
are pertinent to the appellant's claim, such error was
harmless given that service connection is being denied, and
hence no rating or effective date will be assigned with
respect to this claimed condition.
With regard to the duty to assist, the claims file contains
service medical records, VA treatment records, and a VA
examination report. Additionally, the claims file contains
the veteran's statements in support of his claim. The Board
has carefully reviewed such statements and concludes that he
has not identified further available evidence not already of
record. There is no indication in the file that there are
additional relevant records that have not yet been obtained.
Based on the foregoing, the Board finds that all relevant
facts have been developed properly and sufficiently in this
appeal and no further development is required to comply with
the duty to assist the veteran in developing the facts
pertinent to his claim.
II. Merits of the Claims for Service Connection
Legal Criteria
Service connection will be granted if it is shown that the
veteran suffers from a disability resulting from personal
injury suffered or disease contracted in the line of duty, or
for aggravation of a preexisting injury suffered or disease
contracted in the line of duty, during active military
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Disorders diagnosed after discharge will still be service
connected if all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34
F.3d 1039, 1043 (Fed. Cir. 1994).
In the absence of proof of a present disability, there can be
no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992). Service connection requires a finding of the
existence of a current disability and a determination of a
relationship between that disability and an injury or disease
incurred in service. Watson v. Brown, 4 Vet. App. 309, 314
(1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed.
Cir. 2000). To establish service connection, there must be:
(1) a medical diagnosis of a current disability; (2) medical
or, in certain cases, lay evidence of in-service occurrence
or aggravation of a disease or injury; and (3) medical
evidence of a nexus between an in-service injury or disease
and the current disability. Hickson v. West, 12 Vet.
App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet.
App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996).
A layperson is generally not capable of opining on matters
requiring medical knowledge. Routen v. Brown, 10 Vet.
App. 183, 186 (1997). See also Bostain v. West, 11 Vet.
App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet.
App. 492 (1992) (a layperson without the appropriate medical
training and expertise is not competent to provide a
probative opinion on a medical matter, to include a diagnosis
of a specific disability and a determination of the origins
of a specific disorder).
Competent medical evidence means evidence provided by a
person who is qualified through education, training, or
experience to offer medical diagnoses, statements, or
opinions. Competent medical evidence may also mean
statements conveying sound medical principles found in
medical treatises. It also includes statements contained in
authoritative writings, such as medical and scientific
articles and research reports or analyses. 38 C.F.R.
§ 3.159(a)(1). Competent lay evidence means any evidence not
requiring that the proponent have specialized education,
training, or experience. Lay evidence is competent if it is
provided by a person who has knowledge of facts or
circumstances and conveys matters that can be observed and
described by a lay person. 38 C.F.R. § 3.159(a)(2).
Except as provided in 38 C.F.R. § 3.300(c), pertaining to
secondary service connection for ischemic heart disease or
other cardiovascular disease based on the effects of tobacco
products, disability which is proximately due to or the
result of a service-connected disease or injury shall be
service connected. When service connection is thus
established for a secondary condition, the secondary
condition shall be considered a part of the original
condition. 38 C.F.R. § 3.310(a).
Any increase in severity of a nonservice-connected disease or
injury that is proximately due to or the result of a service-
connected disability, will be service connected. However, VA
will not concede that a non-service-connected disease or
injury was aggravated by a service-connected disease or
injury unless the baseline level of severity of the
nonservice-connected disease or injury is established by
medical evidence created before the onset of aggravation or
by the earliest medical evidence created at any time between
the onset of aggravation and the receipt of medical evidence
establishing the current level of severity of the nonservice-
connected disease or injury. The rating activity will
determine the baseline and current levels of severity under
the Schedule for Rating Disabilities and determine the extent
of aggravation by deducting the baseline level of severity,
as well as any increase in severity due to the natural
progress of the disease, from the current level. 38 C.F.R.
§ 3.310 (b), added effective October 10, 2006, 71 Fed. Reg.
52744-52747 (Sept. 7, 2006).
The standard of proof to be applied in decisions on claims
for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A
veteran is entitled to the benefit of the doubt when there is
an approximate balance of positive and negative evidence.
See 38 C.F.R. § 3.102. When a veteran seeks benefits and the
evidence is in relative equipoise, the veteran prevails. See
Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The
preponderance of the evidence must be against the claim for
benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518
(1996).
Analysis
The veteran claims service connection for peripheral
neuropathy of the lower and upper extremities. In addition,
the veteran related his claimed peripheral neuropathy to his
service-connected Type II Diabetes Mellitus. The RO denied
these claims in a January 2004 rating decision. The veteran
appeals this decision.
In assessing the veteran's service connection claims for
peripheral neuropathy of the lower and upper extremities, the
Board must first determine whether the veteran was diagnosed
with the claimed disabilities. There is no indication in the
medical records that the veteran is currently diagnosed with
peripheral neuropathy of the lower and upper extremities. VA
medical reports note that the veteran complained of pain and
numbness in his left and right arm during a cardiological
visit after the veteran suffered from cardiovascular
problems. See VA progress notes dated September 2001 and
October 2002. In fact, the competent medical evidence
indicates that the veteran does not have peripheral
neuropathy. An October 2003 VA examination for diabetes
included an evaluation for peripheral neuropathy of the lower
and upper extremities. The examiner considered the veteran's
complaints of experiencing chronic pain and numbness in his
feet and hands for ten years. The examiner determined that
there was no cyanosis or clubbing in the extremities and
minimal edema of both the lower legs. The examiner also
observed that Homan's sign was negative and the peripheral
pulses were well felt on both sides and were equal. The VA
examiner did note that the sensations, including monofilament
touch sensations, were diminished in both of the veteran's
hands and feet. However, the VA examiner determined that the
veteran did not have peripheral neuropathy of the hands or
feet. Therefore, the competent medical evidence shows that
the veteran does not have a current disability.
The Board notes that it has closely reviewed and considered
each of the veteran's statements. Lay persons can provide an
eyewitness account of a veteran's visible symptoms, such as
in this case where the veteran complains of pain and numbness
in his lower and upper extremities. Caldwell v. Derwinski, 1
Vet. App. 466, 469 (1991). However, the veteran is not
competent to assert that he has peripheral neuropathy,
because lay persons are not competent to offer medical
opinions. Therefore, lay assertions regarding a medical
diagnosis of a neurological disorder have no probative value.
Espiritu, 2 Vet. App. at 494-95.
Without evidence of a current disability, the Board must find
that entitlement to service connection for peripheral
neuropathy of the lower and upper extremities is not
warranted. The benefit of the doubt doctrine is not
applicable in this case, because the preponderance of the
evidence is against the claim for service connection. See
generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz
v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).
ORDER
1. Entitlement to service connection for peripheral
neuropathy of the lower extremities is not warranted.
2. Entitlement to service connection for peripheral
neuropathy of the upper extremities is not warranted.
REMAND
The record reflects that the veteran filed a Notice of
Disagreement (NOD) in September 2004 in response to the RO's
denial of service connection for a bilateral foot condition
in a January 2004 rating decision. The RO issued a
Statement of the Case in December 2004 addressing the
veteran's claims for peripheral neuropathy of the upper and
lower extremities, but it did not address the claim for a
bilateral foot disorder.
The Board notes that the September 2004 NOD was received by
the RO within a year of the January 2004 rating decision, and
it is therefore timely. 38 U.S.C.A. § 7105. As a timely NOD
regarding the above issue has been submitted, a remand is
required in order for the RO to provide the veteran a
Statement of the Case. See Manlincon v. West, 12 Vet. App.
238 (1999) (holding the Board should remand the issue to the
RO for the issuance of a Statement of the Case when a notice
of disagreement had been timely filed); 38 U.S.C.A. § 7105.
Thereafter, the veteran must submit a timely substantive
appeal in order for this issue to be perfected for appeal to
the Board. 38 U.S.C.A. § 7105.
Accordingly, the case is REMANDED for the following action:
The RO should issue the veteran a
Statement of the Case with respect to his
claim for service connection for a
bilateral foot condition that contains
notice of all relevant actions taken,
including a summary of the evidence and
applicable law and regulations considered
pertinent to the issue. In addition, the
notification should include the need and
the appropriate time period in which to
file a substantive appeal. If a timely
substantive appeal is filed, this issue
should be returned to the Board for
appellate review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 04-07-2008 | [
"Citation Nr: 0811382 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-02 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the lower extremities. 2. Entitlement to service connection for peripheral neuropathy of the upper extremities. 3. Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The veteran served on active duty from December 1968 to December 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The issue of service connection for a bilateral foot disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.",
"FINDINGS OF FACT 1. The competent medical evidence does not show a current diagnosis of peripheral neuropathy of the lower extremities. 2. The competent medical evidence does not show a current diagnosis of peripheral neuropathy of the upper extremities. CONCLUSION OF LAW 1. Service connection is not warranted for a peripheral neuropathy disorder of the lower extremities. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2007). 2. Service connection is not warranted for a peripheral neuropathy disorder of the upper extremities. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veteran Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A.",
"§§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R.",
"§ 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). A July 2003 VCAA letter informed the veteran of what evidence was required to substantiate his claims for service connection for peripheral neuropathy of the lower and upper extremities. This letter also informed the veteran of his and VA's respective duties for obtaining evidence. The VCAA letter requested the veteran to provide any evidence in his possession and he was informed that it was ultimately his responsibility to ensure that VA received any evidence not in the possession of the Federal government. Therefore, the Board finds that the requirements of VCAA regarding the duty to notify have been met and that VA has no further duty prior to Board adjudication. In Dingess v. Nicholson, 19 Vet.",
"App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition.",
"With regard to the duty to assist, the claims file contains service medical records, VA treatment records, and a VA examination report. Additionally, the claims file contains the veteran's statements in support of his claim. The Board has carefully reviewed such statements and concludes that he has not identified further available evidence not already of record. There is no indication in the file that there are additional relevant records that have not yet been obtained. Based on the foregoing, the Board finds that all relevant facts have been developed properly and sufficiently in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim.",
"II. Merits of the Claims for Service Connection Legal Criteria Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.",
"38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet.",
"App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.",
"38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Except as provided in 38 C.F.R. § 3.300(c), pertaining to secondary service connection for ischemic heart disease or other cardiovascular disease based on the effects of tobacco products, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R.",
"§ 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disability, will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury.",
"The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (b), added effective October 10, 2006, 71 Fed. Reg. 52744-52747 (Sept. 7, 2006). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107.",
"A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.",
"App. 518 (1996). Analysis The veteran claims service connection for peripheral neuropathy of the lower and upper extremities. In addition, the veteran related his claimed peripheral neuropathy to his service-connected Type II Diabetes Mellitus. The RO denied these claims in a January 2004 rating decision. The veteran appeals this decision. In assessing the veteran's service connection claims for peripheral neuropathy of the lower and upper extremities, the Board must first determine whether the veteran was diagnosed with the claimed disabilities. There is no indication in the medical records that the veteran is currently diagnosed with peripheral neuropathy of the lower and upper extremities. VA medical reports note that the veteran complained of pain and numbness in his left and right arm during a cardiological visit after the veteran suffered from cardiovascular problems.",
"See VA progress notes dated September 2001 and October 2002. In fact, the competent medical evidence indicates that the veteran does not have peripheral neuropathy. An October 2003 VA examination for diabetes included an evaluation for peripheral neuropathy of the lower and upper extremities. The examiner considered the veteran's complaints of experiencing chronic pain and numbness in his feet and hands for ten years. The examiner determined that there was no cyanosis or clubbing in the extremities and minimal edema of both the lower legs. The examiner also observed that Homan's sign was negative and the peripheral pulses were well felt on both sides and were equal. The VA examiner did note that the sensations, including monofilament touch sensations, were diminished in both of the veteran's hands and feet. However, the VA examiner determined that the veteran did not have peripheral neuropathy of the hands or feet.",
"Therefore, the competent medical evidence shows that the veteran does not have a current disability. The Board notes that it has closely reviewed and considered each of the veteran's statements. Lay persons can provide an eyewitness account of a veteran's visible symptoms, such as in this case where the veteran complains of pain and numbness in his lower and upper extremities. Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). However, the veteran is not competent to assert that he has peripheral neuropathy, because lay persons are not competent to offer medical opinions. Therefore, lay assertions regarding a medical diagnosis of a neurological disorder have no probative value. Espiritu, 2 Vet. App. at 494-95. Without evidence of a current disability, the Board must find that entitlement to service connection for peripheral neuropathy of the lower and upper extremities is not warranted. The benefit of the doubt doctrine is not applicable in this case, because the preponderance of the evidence is against the claim for service connection.",
"See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER 1. Entitlement to service connection for peripheral neuropathy of the lower extremities is not warranted. 2. Entitlement to service connection for peripheral neuropathy of the upper extremities is not warranted. REMAND The record reflects that the veteran filed a Notice of Disagreement (NOD) in September 2004 in response to the RO's denial of service connection for a bilateral foot condition in a January 2004 rating decision. The RO issued a Statement of the Case in December 2004 addressing the veteran's claims for peripheral neuropathy of the upper and lower extremities, but it did not address the claim for a bilateral foot disorder.",
"The Board notes that the September 2004 NOD was received by the RO within a year of the January 2004 rating decision, and it is therefore timely. 38 U.S.C.A. § 7105. As a timely NOD regarding the above issue has been submitted, a remand is required in order for the RO to provide the veteran a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238 (1999) (holding the Board should remand the issue to the RO for the issuance of a Statement of the Case when a notice of disagreement had been timely filed); 38 U.S.C.A. § 7105. Thereafter, the veteran must submit a timely substantive appeal in order for this issue to be perfected for appeal to the Board. 38 U.S.C.A. § 7105.",
"Accordingly, the case is REMANDED for the following action: The RO should issue the veteran a Statement of the Case with respect to his claim for service connection for a bilateral foot condition that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. In addition, the notification should include the need and the appropriate time period in which to file a substantive appeal. If a timely substantive appeal is filed, this issue should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.",
"See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
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DISMISS; and Opinion Filed October 29, 2013.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00239-CV
CLIFTON AMOS AND CIARA JACKSON, AS PARENTS AND NEXT FRIENDS OF SIANNA AMOS, A MINOR, Appellants V. BAYLOR MEDICAL CENTER AT IRVING AND BAYLOR HEALTH CARE SYSTEM, Appellees
On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-12-08408
MEMORANDUM OPINION Before Justices Moseley, Lang, and Brown Opinion by Justice Brown
Before the Court is the appellants’ October 23, 2013 unopposed motion to dismiss this
appeal. We GRANT appellants’ motion and DISMISS the appeal. See TEX. R. APP. P.
42.1(a)(1).
/Ada Brown/ ADA BROWN JUSTICE 130239F.P05 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CLIFTON AMOS AND CIARA On Appeal from the 162nd Judicial District JACKSON, AS PARENTS AND NEXT Court, Dallas County, Texas FRIENDS OF SIANNA AMOS, A MINOR, Trial Court Cause No. DC-12-08408. Appellants Opinion delivered by Justice Brown. Justices Moseley and Lang participating. No. 05-13-00239-CV V.
BAYLOR MEDICAL CENTER AT IRVING AND BAYLOR HEALTH CARE SYSTEM, Appellees
In accordance with this Court’s opinion of this date, we DISMISS the appeal. It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 29th day of October, 2013.
/Ada Brown/ ADA BROWN JUSTICE
–2– | 10-16-2015 | [
"DISMISS; and Opinion Filed October 29, 2013. S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00239-CV CLIFTON AMOS AND CIARA JACKSON, AS PARENTS AND NEXT FRIENDS OF SIANNA AMOS, A MINOR, Appellants V. BAYLOR MEDICAL CENTER AT IRVING AND BAYLOR HEALTH CARE SYSTEM, Appellees On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-12-08408 MEMORANDUM OPINION Before Justices Moseley, Lang, and Brown Opinion by Justice Brown Before the Court is the appellants’ October 23, 2013 unopposed motion to dismiss this appeal. We GRANT appellants’ motion and DISMISS the appeal. See TEX. R. APP. P. 42.1(a)(1). /Ada Brown/ ADA BROWN JUSTICE 130239F.P05 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT CLIFTON AMOS AND CIARA On Appeal from the 162nd Judicial District JACKSON, AS PARENTS AND NEXT Court, Dallas County, Texas FRIENDS OF SIANNA AMOS, A MINOR, Trial Court Cause No.",
"DC-12-08408. Appellants Opinion delivered by Justice Brown. Justices Moseley and Lang participating. No. 05-13-00239-CV V. BAYLOR MEDICAL CENTER AT IRVING AND BAYLOR HEALTH CARE SYSTEM, Appellees In accordance with this Court’s opinion of this date, we DISMISS the appeal. It is ORDERED that each party bear its own costs of this appeal. Judgment entered this 29th day of October, 2013. /Ada Brown/ ADA BROWN JUSTICE –2–"
]
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This opinion was filed for record at fJ, 0(i(),ft. onf.UJ lf£1 2Jlll (jfA-ok;;Ci ~ SUSAN L. CARLSON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 91615-2 ENBANC Respondent, ·'V. ARLENE'S FLOWERS, INC., d/b/a ARLENE'S FLOWERS AND GIFTS, and Filed - -FEB 1 6 2017 ----- BARRONELLE STUTZMAN,
Appellants.
ROBERT INGERSOLL and CURT FREED,
Respondents, v. ARLENE'S FLOWERS, INC., d/b/a ARLENE'S FLOWERS AND GIFTS, and BARRONELLE STUTZMAN,
Appellants.
GORDON McCLOUD, J.-The State of Washington bars discrimination in
"public ... accommodation[s]" on the basis of"sexual orientation." RCW 49.60.215 No. 91615-2
(Washington Law Against Discrimination (WLAD)). Barronelle Stutzman owns
and operates a place of public accommodation in our state: Arlene's Flowers Inc.
Stutzman and her public business, Arlene's Flowers and Gifts, refused to sell
wedding flowers to Robert Ingersoll because his betrothed, Curt Freed, is a man.
The State and the couple sued, each alleging violations of the WLAD and the
Consumer Protection Act (CPA), ch. 19.86 RCW. Stutzman defended on the
grounds that the WLAD and CPA do not apply to her conduct and that, if they do,
those statutes violate her state and federal constitutional rights to free speech, free
exercise, and free association.
The Benton County Superior Court granted summary judgment to the State
and the couple, rejecting all of Stutzman's claims. We granted review and now
affirm.
FACTS
In 2004, Ingersoll and Freed began a committed, romantic relationship. In
2012, our state legislature passed Engrossed Substitute Senate Bill 6239, which
recognized equal civil marriage rights for same-sex couples. LAWS OF 2012, ch. 3,
§ 1. Freed proposed marriage to Ingersoll that same year. The two intended to marry
on their ninth anniversary, in September 2013, and were "excited about organizing
[their] wedding." Clerk's Papers (CP) at 350. Their plans included inviting "[a]
2 No. 91615-2
hundred plus" guests to celebrate with them at Bella Fiori Gardens, complete with a
dinner or reception, a photographer, a caterer, a wedding cake, and flowers. Id. at
1775-77.
By the time he and Freed became engaged, Ingersoll had been a customer at
Arlene's Flowers for at least nine years, purchasing numerous floral arrangements
from Stutzman and spending an estimated several thousand dollars at her shop.
Stutzman is the owner and president of Arlene's Flowers. She employs
approximately 10 people, depending on the season, including three floral designers,
one of whom is herself. Stutzman knew that Ingersoll is gay and that he had been in
a relationship with Freed for several years. The two men considered Arlene's
Flowers to be "[their] florist." Id. at 350.
Stutzman is an active member of the Southern Baptist church. It is
uncontested that her sincerely held religious beliefs include a belief that marriage
can exist only between one man and one woman.
On February 28, 2013, Ingersoll went to Arlene's Flowers on his way home
from work, hoping to talk to Stutzman about purchasing flowers for his upcoming
wedding. Ingersoll told an Arlene's Flowers employee that he was engaged to marry
Freed and that they wanted Arlene's Flowers to provide the flowers for their
wedding. The employee informed Ingersoll that Stutzman was not at the shop and
3 No. 91615-2
that he would need to speak directly with her. The next day, Ingersoll returned to
speak with Ms. Stutzman. At that time, Stutzman told Ingersoll that she would be
unable to do the flowers for his wedding because of her religious beliefs, specifically,
because of"her relationship with Jesus Christ." Id. at 155, 351, 1741-42, 1744-45,
1763. Ingersoll did not have a chance to specify what kind of flowers or floral
arrangements he was seeking before Stutzman told him that she would not serve
him. They also did not discuss whether Stutzman would be asked to bring the
arrangements to the wedding location or whether the flowers would be picked up
from her shop.
Stutzman asserts that she gave Ingersoll the name of other florists who might
be willing to serve him, and that the two hugged before Ingersoll left her store.
Ingersoll maintains that he walked away from that conversation "feeling very hurt
and upset emotionally." Id. at 1743.
Early the next morning, after a sleepless night, Freed posted a status update
on his personal Facebook feed regarding Stutzman's refusal to sell him wedding
flowers. The update observed, without specifically naming Arlene's Flowers, that
the couple's "favorite Richland Lee Boulevard flower shop" had declined to provide
flowers for their wedding on religious grounds, and noted that Freed felt "so deeply
offended that apparently our business is no longer good business," because "[his]
4 No. 91615-2
loved one [did not fit] within their personal beliefs." Id. at 1262. This message was
apparently widely circulated, though Ingersoll testified that their Facebook settings
were such that the message was "only intended for our friends and family." Id. at
1760, 1785. Eventually, the story drew the attention of numerous media outlets.
As a result of the "emotional toll" Stutzman's refusal took on Freed and
Ingersoll, they "lost enthusiasm for a large ceremony" as initially imagined. Id. at
1490. In fact, the two "stopped planning for a wedding in September 2013 because
[they] feared being denied service by other wedding vendors." I d. at 351. The
couple also feared that in light of increasing public attention-some of which caused
them to be concerned for their own safety-as well as then-ongoing litigation, a
larger wedding might require a security presence or attract protesters, such as the
Westboro Baptist group. So they were married on July 21, 2013, in a modest
ceremony at their home. There were 11 people in attendance. For the occasion,
Freed and Ingersoll purchased one bouquet of flowers from a different florist and
boutonnieres from their friend. When word of this story got out in the media, a
handful of florists offered to provide their wedding flowers free of charge.
Stutzman also received a great deal of attention from the publicity surrounding
this case, including threats to her business and other unkind messages.
5 No. 91615-2
Prior to Ingersoll's request, Arlene's Flowers had never had a request to
provide flowers for a same-sex wedding, and the only time Stutzman has ever
refused to serve a customer is when Ingersoll and Freed asked her to provide flowers
for their wedding. The decision not to serve Ingersoll was made strictly by Stutzman
and her husband. After Ingersoll's and Freed's request, Stutzman developed an
"unwritten policy" for Arlene's Flowers that they "don't take same sex marriages."
Id. at 120. Stutzman states that the only reason for this policy is her conviction that
"biblically marriage is between a man and a woman." Id. at 120-21. Aside from
Ingersoll and Freed, she has served gay and lesbian customers in the past for other,
non-wedding-related flower orders.
Stutzman maintains that she would not sell Ingersoll any arranged flowers for
his wedding, even if he were asking her only to replicate a prearranged bouquet from
a picture book of sample arrangements. She believes that participating, or allowing
any employee of her store to participate, in a same-sex wedding by providing custom
floral arrangements and related customer service is tantamount to endorsing
marriage equality for same-sex couples. She draws a distinction between creating
floral arrangements--even those designed by someone else-and selling bulk
flowers and "raw materials," which she would be happy to do for Ingersoll and
Freed. I d. at 546-4 7. Stutzman believes that to create floral arrangements is to use
6 No. 91615-2
her "imagination and artistic skill to intimately participate in a same-sex wedding
ceremony." Id. at 547. However, Stutzman aclmowledged that selling flowers for
an atheistic or Muslim wedding would not be tantamount to endorsing those systems
of belief.
By Stutzman's best estimate, approximately three percent of her business
comes from weddings. Stutzman is not currently providing any wedding floral
services (other than for members of her immediate family) during the pendency of
this case.
PROCEDURAL HISTORY
After the State became aware of Stutzman's refusal to sell flowers to Ingersoll
and Freed, the Attorney General's Office sent Stutzman a letter. It sought her
agreement to stop discriminating against customers on the basis of their sexual
orientation and noted that doing so would prevent further formal action or costs
against her. The letter asked her to sign an "Assurance of Discontinuance," which
stated that she would no longer discriminate in the provision of wedding floral
services. Stutzman refused to sign the letter.
As a result, the State filed a complaint for injunctive and other relief under the
CPA and WLAD against both Stutzman and Arlene's Flowers, in Benton County
Superior Court on April 9, 2013. Stutzman filed an answer on May 16, 2013,
7 No. 91615-2
asserting, among other defenses, that her refusal to furnish Ingersoll with wedding
services was protected by the state and federal constitutions' free exercise, free
speech, and freedom of association guaranties. Ingersoll and Freed filed a private
lawsuit against Arlene's Flowers and Stutzman on April 18, 2013, which the trial
court consolidated with the State's case on July 24, 2013. The parties filed various
cross motions for summary judgment. The trial court ultimately entered judgment
for the plaintiffs in both cases, awarding permanent injunctive relief, as well as
monetary damages for Ingersoll and Freed to cover actual damages, attorneys' fees,
and costs, and finding Stutzman personally liable.
When it granted the plaintiffs' motions for summary judgment, the trial court
made seven rulings that are at issue in this appeal. First, it issued two purely
statutory rulings: ( 1) that Stutzman violated the WLAD' s public accommodations
provision (RCW 49.60.215(1)) and the CPA (see RCW 19.86.020 and RCW
49.60.030) by refusing to sell floral services for same-sex weddings and (2) that both
Stutzman (personally) and Arlene's Flowers (the corporate defendant) were liable
for these violations. CP at 2566-600. Next, the court made five constitutional
rulings. It concluded that the application of the WLAD's public accommodations
provision to Stutzman in this case ( 1) did not violate Stutzman's right to free speech
under the First Amendment to the United States Constitution or article I, section 5
8 No. 91615-2
of the Washington Constitution, (2) did not violate Stutzman's right to religious free
exercise under the First Amendment, (3) did not violate her right to free association
under the First Amendment, (4) did not violate First Amendment protections under
the hybrid rights doctrine, and (5) did not violate Stutzman's right to religious free
exercise under article I, section 11 of the Washington Constitution. !d. at 2601-60.
Stutzman appealed directly to this court, assigning error to all seven of those
rulings. We granted direct review. Order, Ingersoll v. Arlene Js Flowers, No. 91615-
2 (Wash. Mar. 2, 2016). With respect to most of the claims, Stutzman and Arlene's
Flowers make identical arguments-in other words, Stutzman asserts that both she
and her corporation enjoy identical rights of free speech, free exercise, and free
association. It is only with respect to the CPA claim that Stutzman asserts a separate
defense: she argues that even if Arlene's Flowers is liable for the CPA violation, she
cannot be personally liable for a violation of that statute.
ANALYSIS
As noted above, this case presents both statutory and constitutional questions.
Both are reviewed de novo. Williams v. Tilaye, 174 Wash. 2d 57, 61, 272 P.3d 235
(2012) ("[s]tatutory interpretation is a question of law reviewed de novo" (citing
State v. Wentz, 149 Wash. 2d 342, 346, 68 P.3d 282 (2003))); Hale v. Wellpinit Sch.
Dist. No. 49, 165 Wash. 2d 494, 503, 198 P.3d 1021 (2009) (appellate court "review[s]
9 No. 91615-2
all constitutional challenges de novo" (citing State v. Jones, 159 Wash. 2d 231, 237,
149 P.3d 636 (2006))).
I. Stutzman's Refusal To Provide Custom Floral Arrangements for a Same-Sex Wedding Violated the WLAD's Prohibition on Discrimination in Public Accommodations, RCW 49.60.215
Stutzman's first statutory argument implicates the WLAD, chapter 49.60
RCW. The trial court ruled that Stutzman violated RCW 49.60.215, which prohibits
discrimination in the realm of public accommodations. That statute provides:
(1) It shall be an unfair practice for any person or the person's agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement, except for conditions and limitations established by law and applicable to all persons, regardless of ... sexual orientation ....
RCW 49.60.215. The protected class status of "sexual orientation" was added to
this provision in 2006. LAws OF 2006, ch. 4, § 13.
The WLAD defines places of public accommodation to include places
maintained "for the sale of goods, merchandise, services, or personal property, or
for the rendering of personal services . . . . " RCW 49.60.040(2). Protected
individuals are guaranteed "[t]he right to the full enjoyment of any of the
accommodations, advantages, facilities, or privileges" of such places. RCW
10 No. 91615-2
49.60.030(1)(b). Additionally, the WLAD states that "[t]he right to be free from
discrimination because of . .. sexual orientation ... is recognized as and declared to
be a civil right," RCW 49.60.030(1) (emphasis added). The WLAD prohibits
discrimination on the different basis of "marital status" in the employment context,
but not in the context of public accommodations. Compare RCW 49.60.180 (listing
"marital status" as a protected class in section governing unfair practices of
employers) with RCW 49.60.215 (omitting marital status from analogous public
accommodations statute).
RCW 49.60.030(2) authorizes private plaintiffs to bring suit for violations of
the WLAD. To make out a prima facie case under the WLAD for discrimination in
the public accommodations context, the plaintiff must establish four elements: (1)
that the plaintiff is a member of a protected class, RCW 49.60.030(1); (2) that the
defendant is a place of public accommodation, RCW 49.60.215; (3) that the
defendant discriminated against the plaintiff, whether directly or indirectly, id.; and
(4) that the discrimination occurred "because of' the plaintiffs status or, in other
words, that the protected status was a substantial factor causing the discrimination,
RCW 49.60.030. See also Fell v. Spokane Transit Auth., 128 Wash. 2d 618, 637, 911
P .2d 1319 ( 1996) (setting forth elements of prima facie case for disability
discrimination under RCW 49.60.215).
11 No. 91615-2
Stutzman contests only the last element: she contends that she did not
discriminate against Ingersoll "because of' his protected class status under the
WLAD. See Br. of Appellants at 19-21. 1 She offers three arguments in support of
this interpretation of the statute.
First, Stutzman argues that if she discriminated against Ingersoll, it was on the
basis of his "marital status," not his "sexual orientation." Br. of Appellants at 19-
21. Second, she argues that the legislature could not have intended the 2006
amendments to protect people seeking same-sex wedding services since same-sex
marriages were "illegal" in Washington in 2006. Id. at 15-17. She points out that
when the legislature amended the public accommodations provisions of the WLAD
in 2006, it also added language stating that the chapter "shall not be construed to
endorse any specific belief, practice, behavior, or orientation," and affirming that the
addition "shall not be constnled to modify or supersede state law relating to
marriage." Id. at 17-18, 15 (quoting LAWS OF 2006, ch. 4, § 2 (codified at RCW
49.60.020)). Third, Stutzman argues that because the WLAD protects both sexual
1 No one disputes that Ingersoll and Freed are gay men who sought to marry in recognition of their nearly nine-year committed relationship. And Stutzman admits that she is the "sole owner and operator of Arlene's Flowers, Inc.," CP at 535, which is "a Washington for-profit corporation engaged in the sale of goods and services, including flowers for weddings," to the public. Id. at 2, 7-8. Furthermore, Stutzman confirms that she declined to do the flowers for Ingersoll's wedding because of her religious convictions.
12 No. 91615-2
orientation and religion, it requires that courts balance those rights when they
conflict. 2 These arguments fail.
A. By refusing to provide services for a same-sex wedding, Stutzman discriminated on the basis of "sexual orientation" under the WLAD
Stutzman argues that the WLAD distinguishes between discrimination on the
basis of "sexual orientation"-which the statute prohibits-and discrimination
against those who marry members of the same sex. But numerous courts-including
our own-have rejected this kind of status/conduct distinction in cases involving
statutory and constitutional claims of discrimination. E.g., Hegwine v. Longview
Fibre Co.) Inc., 162 Wash. 2d 340, 349, 172 P.3d 688 (2007) ("under the plain language
of the WLAD and its interpretative regulations, pregnancy related employment
discrimination claims are matters of sex discrimination"); Elane Photography) LLC
v. Willock, 2013-NMSC-040, 309 P.3d 53 (2013) (rejecting argument identical to
Stutzman's, in context ofNew Mexico's Human Rights Act (NMHRA), N.M. STAT.
ANN.§§ 28-1-1 to 28-1-13) 3 ; Christian Legal Soc)y Chapter ofUniv. ofCal. v.
2 Stutzman also argues that by compelling her to furnish flowers for a same-sex marriage ceremony, the State "endorses" same-sex marriages and also requires her to "endorse" them. Br. of Appellants at 18. She claims that this conflicts with the WLAD provision stating that "[t]his chapter shall not be construed to endorse any specific belief, practice, behavior, or orientation." RCW 49.60.020. But Stutzman cites no legal authority for this interpretation of the term "endorse" in the WLAD.
3 In Elane Photography, the New Mexico Supreme Court addressed the question of whether a wedding photographer discriminated against a lesbian couple on the basis of 13 No. 91615-2
Martinez, 561 U.S. 661,672,688, 130 S. Ct. 2971, 177 L. Ed. 2d 838 (2010) (student
organization was discriminating based on sexual orientation, not belief or conduct,
when it excluded from membership any person who engaged in "'unrepentant
homosexual conduct"'; thus, University's antidiscrimination policy did not violate
First Amendment protections); see also Lawrence v. Texas, 539 U.S. 558, 575, 123 S. Ct. 24 72, 156 L. Ed. 2d 508 (2003) (by criminalizing conduct typically undertaken
by gay people, a state discriminates against gay people in violation of protections
under the Fourteenth Amendment to the federal constitution); Romer v. Evans, 517 U.S. 620, 641, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996) (Scalia, J., dissenting)
("'After all, there can hardly be more palpable discrimination against a class than
making the conduct that defines the class criminal.'" (quoting Padula v. Webster,
their sexual orientation by refusing to photograph their wedding under a state public accommodations law similar to Washington's WLAD. 309 P.3d 53. The proprietor of Elane Photography argued, much like Stutzman here, that she was not discriminating against Willock and her fiancee based on their sexual orientation, but rather was choosing not to "endorse" same-sex marriage by photographing one in conflict with her religious beliefs. !d. at 61. The court rejected Elane Photography's attempt to distinguish status from conduct, finding that "[t]o allow discrimination based on conduct so closely correlated with sexual orientation would severely undermine the purpose of the NMHRA." !d. Elane Photography was represented on appeal by the same organization-Alliance Defending Freedom-that represents Stutzman before this court. !d. at 58; see also Mullins v. Masterpiece Cakeshop, Inc., 2015 COA 115, ~~ 1-2, 370 P.3d 272 (2015) (holding that baker's refusal to make wedding cake for same-sex marriage violated public accommodations provision of state Anti-Discrimination Act (Co. REV. STAT. §§ 24-34- 401 to 24-34-406) and rejecting free speech and free exercise defenses), cert. denied, No. 15SC738 (Colo. Apr. 25, 2016).
14 No. 91615-2
261 U.S. App. D.C. 365, 371, 822 F.2d 97 (1987))); Bray v. Alexandria Women's
Health Clinic, 506 U.S. 263, 270, 113 S. Ct. 753, 122 L. Ed. 2d 34 (1993)
(summarizing that some conduct is so linked to a particular group of people that
targeting it can readily be interpreted as an attempt to disfavor that group by stating
that "[a] tax on wearing yarmulkes is a tax on Jews"); 4 Bob Jones Univ. v. United
States, 461 U.S. 574,605, 103 S. Ct. 2017,76 L. Ed. 2d 157 (1983) ("discrimination
on the basis of racial affiliation and association is a form of racial discrimination"). 5
Finally, last year, the Supreme Court likened the denial of marriage equality to same-
sex couples itself to discrimination, noting that such denial "works a grave and
4 Stutzman argues that Bray actually supports her position because the Bray Court rejected the argument that a group's antiabortion protests outside clinics reflected an '"invidiously discriminatory animus"' towards women in general. 506 U.S. at 269 (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971)); Reply Br. of Appellants at 39. This is related to her argument in the opening brief that because she generally lacks animus towards gay people, and because her refusal to provide service to Mr. Ingersoll was motivated by religious beliefs, she cannot be said to have discriminated "because of' sexual orientation as required by the WLAD. See Br. of Appellants at 19-21. From Bray, Stutzman concludes that her decision to decline Mr. Ingersoll's "artistic commission" was acceptable because it was "reasonable" and she bore "no underlying animus" towards gay people in general. Reply Br. of Appellants at 40. However, Bray dealt with a question of statutory interpretation of 42 U.S.C. § 1985(3), which has been interpreted to require a showing of animus. See Bray, 506 U.S. at 267-68; Griffin, 403 U.S. at 102. In contrast, we have already addressed this question of an animus requirement with regards to the WLAD and have held that it contains no such requirement (see discussion below).
5 See also Blackburn v. Dep't of Social & Health Servs., 186 Wash. 2d 250, 258-59, 37 5 P .3d 107 6 (20 16) (discrimination on basis of race occurs even where racially motivated staffing decision might have been based on benign reason).
15 No. 91615-2
continuing harm," and is a "disability on gays and lesbians [that] serves to disrespect
and subordinate them." Obergefell v. Hodges,_ U.S. _, 135 S. Ct. 2584, 2604,
2607-08, 192 L. Ed. 2d 609 (2015) (fundamental right to marry includes same-sex
couples and is protected by due process and equal protection clauses of Fourteenth
Amendment; abrogating the equal protection and due process holdings in Andersen
v. King County, 158 Wash. 2d 1, 30, 138 P.3d 963 (2006) (plurality opinion) to the
contrary). 6
In accordance with this precedent, we reject Stutzman's proposed distinction
between status and conduct fundamentally linked to that status. This is consistent
with the language of the WLAD itself, which, as respondents observe, states that it
is to be construed liberally, RCW 49.60.020; that all people, regardless of sexual
orientation are to have ''full enjoyment of any of the accommodations, advantages,
facilities, or privileges" of any place of public accommodation, RCW 49.60.030
(emphasis added); and that all discriminatory acts, including any act "which directly
or indirectly results in any distinction, restriction, or discrimination" based on a
6 In response to the authority cited here, Stutzman cites two cases for the proposition that other courts have drawn a distinction between conduct and status. See Reply Br. of Appellants at 36-37. She draws our attention to two trial court decisions from Kentucky and Virginia. ld.
16 No. 91615-2
person's sexual orientation is an unfair practice in violation of the WLAD, RCW
49.60.215 (emphasis added).
B. There is no same-sex wedding exception to the WLAD's public accommodation provision, RCW 49.60.215
For the reasons given in Section I.A above, the plain language of RCW
49.60.215 prohibits Stutzman's refusal to provide same-sex wedding services to
Ingersoll; such refusal constitutes discrimination on the basis of"sexual orientation,"
in violation ofRCW 49.60.215. The same analysis applies to her corporation.
Stutzman asks us to read an implied same-sex wedding exception into this
statute. She argues that the legislature could not have intended to require equal
access to public accommodations for same-sex wedding services because when it
amended RCW 49.60.215 to prohibit sexual orientation discrimination, same-sex
marriage was "illegal" in Washington.
We reject this argument for two reasons. First, the WLAD already contains
an express exemption to RCW 49.60.215 for "religious organization[s]" 7 that object
to providing public accommodations for same-sex weddings. LAWS OF 2012, ch. 3,
7 This exemption does not extend to Arlene's Flowers, which does not meet the WLAD' s definition of a "religious organization." I d. at § 1(7)(b) (defining "religious organization" to include "entities whose principal purpose is the study, practice, or advancement of religion," such as "churches, mosques, synagogues, temples," etc.).
17 No. 91615-2
§ 1(5) ("[n]o religious organization is required to provide accommodations,
facilities, advantages, privileges, services, or goods related to the solemnization or
celebration of a marriage"). If the WLAD already excluded same-sex wedding
services from the public accommodations covered under RCW 49.60.215, this
exemption would be superfluous. We interpret statutes to avoid such superfluity
whenever possible. Rivardv. State, 168 Wn.2d 775,783,231 P.3d 186 (2010) (in
giving meaning to ambiguous statutory provisions, "we interpret a statute to give
effect to all language, so as to render no portion meaningless or superfluous").
Second, for purposes of the analysis Stutzman would like us to adopt, same-
sex marriage has never been "illegal" in Washington. Stutzman cites our decision
in Waggoner v. Ace Hardware Corp., 134 Wash. 2d 748, 750, 953 P.2d 88 (1998),
which rejected a claim of marital status discrimination by two people terminated
from their jobs for cohabiting in contravention of their workplace antinepotism
policy. Waggoner argued that "cohabitation" fit within the meaning of the term
"marital status." In examining this question of statutory interpretation, we
determined that the plain meaning of the word "marital"-that is, pertaining to "the
status of being married, separated, divorced, or widowed"-was sufficient to resolve
the question against petitioners. Id. at 753. We thus rejected Waggoner's argument
because "[ w]e presume legislative consistency when called upon to construe
18 No. 91615-2
statutory enactments or new amendments to old ones" and our legislature had
criminalized cohabitation prior to protecting marital status under the WLAD. Id. at
754. Of significance here, we noted that cohabitation remained a crime for a full
three years after marital status was included as a protected status, and observed that
"[i]t would be most anomalous for the Legislature to criminalize and protect the
same conduct at the same time." !d. (emphasis added). Stutzman argues that we
should treat same-sex marriage the same way and hold that the legislature could not
possibly have intended to protect that practice when it protected sexual orientation
as a status.
But Stutzman's reliance on Waggoner is misplaced. Washington's Defense
of Marriage Act did not criminalize same-sex marriage. Former RCW 9.79.120
(1973), repealed by LAWS OF 1975, 1st Ex. Sess., ch. 260, § 9A.92.010(211). Rather,
it codified, as a matter of state law, that the only legally recognized marriages in the
State of Washington were those between a man and a woman. See LAWS OF 1998,
ch. 1, § 2 ("It is the intent of the legislature ... to establish public policy against
same-sex marriage in statutory law that clearly and definitively declares same-sex
marriages will not be recognized in Washington"). Former RCW 26.04.010 (1998)
enacted no criminal penalties for attempts by two individuals of the same sex to wed;
those individuals would simply not have had a valid "marriage" under Washington
19 No. 91615-2
law. See LAWS OF 1998, ch. 1, § 3. Former RCW 9.79.120, on the other hand,
specified that cohabitation was "a gross misdemeanor." Waggoner, 134 Wash. 2d at
754 n.4. Our reasoning in Waggoner turned on the presence of a criminal statute
targeting the conduct at issue, which is absent here.
We hold that there is no same-sex wedding exception to the WLAD's public
accommodations provisions.
C. The WLAD contains no mandate to balance religious rights against the rights of protected class members
In her final statutory argument regarding the WLAD, Stutzman contends that
the superior court erred by failing to balance her right to religious free exercise
against Ingersoll's right to equal service. Stutzman argues that because the WLAD
also protects patrons of public accommodations from discrimination based on
"creed," RCW 49.60.030(1), and because this court has recognized that the WLAD
"sets forth a nonexclusive list of rights," Marquis v. City ofSpokane, 130 Wash. 2d 97,
107, 922 P.2d 43 (1996), the statute actually grants conflicting rights. As a
consequence, she argues, courts should conduct a balancing inquiry "on a case-by-
case basis," Reply Br. of Appellants at 43. She cites Seattle Times Co. v. Ishikawa,
20 No. 91615-2
97 Wash. 2d 30, 37-39, 640 P.2d 716 (1982), for the rule that this court uses balancing
tests to resolve claims of competing rights in other contexts. 8
But Stutzman cites no authority for her contention that the WLAD protects
proprietors of public accommodations to the same extent as it protects their patrons,
nor for her contention that a balancing test should be adopted for the WLAD. And,
to the extent that Stutzman relies on Ishikawa, that case is inapposite: it dealt with
two competing rights-the right to a fair trial and the right to open courts-both of
which are constitutional, not statutory. 97 Wash. 2d at 37.
When faced with a question of statutory interpretation, we "'must not add
words where the legislature has chosen not to include them."' Lake v. Woodcreek
Homeowners Ass 'n, 169 Wash. 2d 516, 526, 243 P .3d 1283 (20 10) (quoting Rest. Dev.,
Inc. v. Cananwill, Inc., 150 Wash. 2d 674, 682, 80 P.3d 598 (2003)). Here, the
8 Although Stutzman refers to the balancing test set forth in Ishikawa, that is not the test that she applies in her briefing. Instead, Stutzman articulates a three-part balancing inquiry that ( 1) prioritizes "[ r]ights of express constitutional magnitude ... over other rights when they conflict," (2) evaluates whether infringement on the rights of the opposing party are narrowly tailored to protect the rights of the claimant, and (3) weighs the benefits and burdens on each party. Br. of Appellants at 23-24. In conducting this inquiry, Stutzman concludes that her rights "should take precedence" here because they are of constitutional magnitude, rather than derived from police power as are Ingersoll's; the exception for weddings only (as opposed to refusal to serve the gay community for any purpose) is narrowly tailored to protect her religious rights; and she is more significantly burdened in that she is forced to choose between losing business or violating her religious beliefs, whereas "Mr. Ingersoll and Mr. Freed are able to obtain custom floral designs for their same-sex wedding from nearby florists." Id. 21 No. 91615-2
legislature has provided no indication in the text of the WLAD that it intended to
import a fact-specific, case-by-case, constitutional balancing test into the statute.
Moreover, the plain terms of the WLAD's public accommodations provision-the
statute at issue here-protect patrons, not business owners. In other regulatory
contexts, this court and the United States Supreme Court have held that individuals
who engage in commerce necessarily accept some limitations on their conduct as a
result. See United States v. Lee, 455 U.S. 252, 261, 102 S. Ct. 1051, 71 L. Ed. 2d 127 (1982) (Stevens, J., concurring in judgment) (declining to extend Social Security
exemption to Amish employers on religious grounds because "[w]hen followers of
a particular sect enter into commercial activity as a matter of choice, the limits they
accept on their own conduct as a matter of conscience and faith are not to be
superimposed on the statutory schemes which are binding on others in that activity");
Backlund v. Bd. ofComm 'rs ofKing County Hasp. Dist. No.2, 106 Wash. 2d 632, 648,
724 P.2d 981 (1986) (rejecting religious grounds as valid basis for physician to
decline liability insurance because "[t]hose who enter into a profession as a matter
of choice, necessarily face regulation as to their own conduct"); In re Marriage of
Didier, 134 Wash. App. 490, 499, 140 P.3d 607 (2006).
Because it is inconsistent with the WLAD' s plain terms and unsupported by
any precedent, we decline to adopt Stutzman's proposed balancing test. In sum,
22 No. 91615-2
Stutzman's refusal to provide custom floral arrangements for a same-sex wedding
violated the WLAD's prohibition on discrimination in public accommodations. 9
II. Stutzman Fails To Show That the WLAD, as Applied in This Case, Violates Her State or Federal Constitutional Right to Free Speech
As noted above, Stutzman raises five constitutional challenges to the WLAD
as applied to her. She is correct that if the State statute violated a constitutional right,
the constitutional right would certainly prevail. U.S. CONST. art. VI, cl. 2 (federal
constitutional supremacy); Davis v. Cox, 183 Wash. 2d 269, 294-95, 351 P.3d 862
(2015) (state constitutional provision prevails over state statute to the contrary). We
therefore analyze each of Stutzman's constitutional defenses carefully.
The first of these defenses is a free speech challenge: Stutzman contends that
her floral arrangements are artistic expressions protected by the state and federal
constitutions and that the WLAD impermissibly compels her to speak in favor of
same-sex marnage.
A. As applied to Stutzman in this case, the WLAD does not violate First Amendment speech protections
"Free speech is revered as the 'Constitution's most majestic guarantee,'
central to the preservation of all other rights." Pub. Disclosure Comm 'n v. 119 Vote
9 To the extent Stutzman argues that her religious free exercise rights supersede Ingersoll's and Freed's statutory protections, we address that argument in the constitutional analyses below. 23 No. 91615-2
No! Comm., 135 Wash. 2d 618, 624, 957 P.2d 691 (1998) (plurality opinion) (quoting
Nelson v. McClatchy Newspapers, Inc., 131 Wash. 2d 523, 536,936 P.2d 1123 (1997)).
"The government may not prohibit the dissemination of ideas that it disfavors, nor
compel the endorsement of ideas that it approves." Knox v. Serv. Emps. Int'l Union,
LocallOOO, _U.S._, 132 S. Ct. 2277, 2288, 183 L. Ed. 2d 281 (2012). Indeed,
the First Amendment protects even hate speech, provided it is not "fighting words"
or a "'true threat."' Virginia v. Black, 538 U.S. 343, 359, 123 S. Ct. 1536, 155 L.
Ed. 2d 535 (2003) (quoting Watts v. United States, 394 U.S. 705, 708, 89 S. Ct. 1399,
22 L. Ed. 2d 664 (1969) (per curiam)).
Stutzman argues that the WLAD, as applied to her in this case, violates First
Amendment protections against "compelled speech" because it forces her to endorse
same-sex marriage. Br. of Appellants at 24-31. To succeed in this argument, she
must first demonstrate that the conduct at issue here-her commercial sale of floral
wedding arrangements-amounts to "expression" protected by the First
Amendment. Clarkv. Cmty.for Creative Non-Violence, 468 U.S. 288,293 n.5, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984) ("[I]t is the obligation ofthe person desiring to
engage in assertedly expressive conduct to demonstrate that the First Amendment
even applies. To hold otherwise would be to create a rule that all conduct is
presumptively expressive.")
24 No. 91615-2
She fails to meet this burden. The First Amendment's plain terms protect
"speech," not conduct. U.S. CONST. amend. I ("Congress shall make no law ...
abridging the freedom of speech."). But the line between speech and conduct in this
context is not always clear. Stutzman contends that her floral arrangements are
"speech" for purposes of First Amendment protections because they involve her
artistic decisions. Br. of Appellants at 24. Relying on the dictionary definition of
"art," as well as expert testimony regarding her creativity and expressive style, she
argues for a broad reading of protected speech that encompasses her "unique
expression," crafted in "petal, leaf, and loam." !d. at 25-26. Ingersoll and the State
counter that Stutzman's arrangements are simply one facet of conduct-selling
goods and services for weddings in the commercial marketplace-that does not
implicate First Amendment protections at all.
We agree that the regulated activity at issue in this case-Stutzman's sale of
wedding floral arrangements-is not "speech" in a literal sense and is thus properly
characterized as conduct. But that does not end our inquiry. The Supreme Court
has protected conduct as speech if two conditions are met: "[(1)] [a]n intent to
convey a particularized message was present, and [(2)] in the surrounding
circumstances the likelihood was great that the message would be understood by
those who viewed it." Spence v. Washington, 418 U.S. 405,410-11,94 S. Ct. 2727,
25 No. 91615-2
41 L. Ed. 2d 842 (1974) (per curiam). Recent cases have characterized this as an
inquiry into whether the conduct at issue was "inherently expressive." Rumsfeld v.
Forum for Acad. & Institutional Rights, Inc. (FAIR), 547 U.S. 47, 64, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006).
Stutzman's floral arrangements do not meet this definition. Certainly, she
argues that she intends to communicate a message through her floral arrangements.
But the major contest is over whether Stutzman's intended communications actually
communicated something to the public at large-whether her conduct was
"inherently expressive." Spence, 418 U.S. at 410-11; FAIR, 547 U.S. at 64. And
her actions in creating floral arrangements for wedding ceremonies do not satisfy
this standard.
The leading case on the "inherently expressive" standard is FAIR. The
plaintiffs in FAIR-an association of law schools and faculty members-challenged
the constitutionality of a law that required higher education institutions to provide
military recruiters on campus with access to facilities and students that was at least
equivalent to that of the most favorably treated nonmilitary recruiter. 547 U.S. at
52, 55. The FAIR Court ruled that the law schools' conduct in denying military
recruiters most-favorable-recruiter access to students was not protected by the First
Amendment because it was not "inherently expressive." Id. at 66. It explained that
26 No. 91615-2
additional speech would be required for an outside observer to understand that the
schools' reason for denying military recruiters favorable access was to protest the
military's "Don't Ask, Don't Tell" policy. Id.
Stutzman's refusal is analogous. The decision to either provide or refuse to
provide flowers for a wedding does not inherently express a message about that
wedding. As Stutzman acknowledged at deposition, providing flowers for a
wedding between Muslims would not necessarily constitute an endorsement of
Islam, nor would providing flowers for an atheist couple endorse atheism. Stutzman
also testified that she has previously declined wedding business on "[m]ajor
holidays, when we don't have the staff or if they want particular flowers that we
can't get in the time frame they need." CP at 120. Accordingly, an outside observer
may be left to wonder whether a wedding was declined for one of at least three
reasons: a religious objection, insufficient staff, or insufficient stock.
Stutzman argues that FAIR is inapposite and that we should instead apply
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557,
115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995). Hurley held that a state
antidiscrimination law could not be applied so as to require a private parade to
include marchers displaying a gay pride message. Id. at 568. Stutzman claims
Hurley recognizes her First Amendment right "to exclude a message [she] did not
27 No. 91615-2
like from the communication [she] chose to make." Reply Br. of Appellants at 11
(citing Hurley, 515 U.S. at 574). 10
Hurley is similar to this case m one respect: it involved a public
accommodations law like the WLAD.II But the Massachusetts trial court had ruled
IO Stutzman relies on Redgrave v. Boston Symphony Orchestra, 855 F.2d 888 (1st Cir. 1988), in which the Boston Symphony (BSO) refused to perform with Vanessa Red grave in light of her support of the Palestine Liberation Organization. Redgrave sued the BSO for breach of contract and consequential damages in federal court. Redgrave v. Boston Symphony Orchestra, Inc., 602 F. Supp. 1189 (D. Mass. 1985), affirmingjudgment in part, vacated in part, 855 F.2d 888 (1st Cir. 1988). The First Amendment issue in that case arose from the district court's concern that Red grave's novel theory of consequential damages was sufficiently related to defamation cases so as to implicate First Amendment concerns. !d. at 1201. However, as the attorney general here notes, the First Circuit resolved that case on statutory interpretation of the Massachusetts Civil Rights Act, MASS. GEN. LAWS, ch. 12, §§ 11H~11J, not on First Amendment grounds. Att'y Gen.'s Resp. Br. at 26. In fact, the court ultimately chose to "decline to reach the federal constitutional issues," given the complex interaction between First Amendment doctrine and state law, and saw "no need to discuss the existence or content of a First Amendment right not to perform an artistic endeavor." 855 F.2d at 911. Accordingly, Stutzman's references are, at best, out~of~circuit dicta.
II Stutzman cites both Hurley and Boy Scouts of America v. Dale, 530 U.S. 640, 657, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000), as examples of cases in which the Supreme Court vindicated First Amendment rights over state antidiscrimination public accommodations laws. In fact, both cases involved state courts applying public accommodations laws in unusually expansive ways, such that an individual, private, expressive association of people fell under the law. Dale, 530 U.S. at 657 (New Jersey Court "went a step further" from an already "extremely broad" public accommodations law in applying it "to a private entity without even attempting to tie the term 'place' to a physical location"); Hurley, 515 U.S. at 572 (noting that Massachusetts trial court applied a public accommodations law "in a peculiar way" to encompass a privately sponsored parade). This case is distinguishable because Arlene's Flowers is a paradigmatic public accommodation. 28 No. 91615-2
that the parade itself was a place of public accommodation under state
antidiscrimination law-a ruling that the Supreme Court called "peculiar." 515 U.S.
at 561-62, 573. The Court noted that the parade's "inherent expressiveness"
distinguished it from the places traditionally subject to public accommodations
laws-places that provide "publicly available goods, privileges, and services." Id.
at 568-72. Hurley is therefore unavailing to Stutzman: her store is the kind of public
accommodation that has traditionally been subject to antidiscrimination laws. See
Elane Photography, 309 P.3d at 68 (rejecting photographer's reliance on Hurley
because state antidiscrimination law applies not to defendant's photographs but to
"its business decision not to offer its services to protected classes of people";
concluding that "[w]hile photography may be expressive, the operation of a
photography business is not"). 12
12 The Supreme Court has drawn this distinction between expressive conduct and commercial activity in the context of First Amendment freedom of association claims, and likewise rejected the notion that the First Amendment precludes enforcement of antidiscrimination public accommodations laws in that context as well. E.g., Dale, 530 U.S. at 657 (distinguishing between "clearly commercial entities" and "membership organizations" in cases involving the intersection between state public accommodations laws and First Amendment rights); Roberts v. US. Jaycees, 468 U.S. 609, 627, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984) (finding that even private membership organizations may be regulated by public accommodations laws where such regulations will not impair its ability "to disseminate its preferred views" and holding that there was no such impairment where young men's social organization was required to accept women members). 29 No. 91615-2
United States Supreme Court decisions that accord free speech protections to
conduct under the First Amendment have all dealt with conduct that is clearly
expressive, in and of itself, without further explanation. See Hurley, 515 U.S. at 568
(parades); United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990) (burning the American flag); Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989) (burning the American flag); United States v. Grace,
461 U.S. 171, 103 S. Ct. 1702, 75 L. Ed. 2d 736 (1983) (distributing leaflets outside
Supreme Court building in violation of federal statute); Nat'! Socialist Party ofAm.
v. Vill. ofSkokie, 432 U.S. 43, 43,97 S. Ct. 2205, 53 L. Ed. 2d 96 (1977) (per curiam)
("[m]arching, walking, or parading" while wearing Nazi uniforms); Smith v.
Goguen, 415 U.S. 566, 588, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974) (White, J.,
concurring in judgment) (treating flag "'contemptuously"' by wearing a small
American flag sewn into the seat of one's pants); Wooley v. Maynard, 430 U.S. 705,
97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977) (state motto on license plates); Spence, 418 U.S. 405 (displaying American flag upside down on private property with peace sign
superimposed on it to express feelings about Cambodian invasion and Kent State
University shootings); Cohen v. California, 403 U.S. 15, 26, 91 S. Ct. 1780, 29 L.
Ed. 2d 284 (1971) (wearing jacket emblazoned with the words "'F--k the Draft"');
Schacht v. United States, 398 U.S. 58, 90 S. Ct. 1555, 26 L. Ed. 2d 44 (1970)
30 No. 91615-2
(wearing army uniform in short play criticizing United States involvement in
Vietnam, inasmuch as it does not tend to discredit the armed forces); Tinker v. Des
Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505, 89 S. Ct. 733, 21 L. Ed. 2d 731
(1969) (wearing black armbands to protest Vietnam conflict); Brown v. Louisiana,
383 U.S. 131, 141-42,86 S. Ct. 719, 15 L. Ed. 2d 637 (1966) (sit-in to protest "whites
only" area in public library during civil rights struggle); Cox v. Louisiana, 379 U.S. 536, 552, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965) (giving speech and leading group
of protesters in song and prayer in opposition to segregation); Edwards v. South
Carolina, 372 U.S. 229, 83 S. Ct. 680, 9 L. Ed. 2d 697 (1963) (peaceful march on
sidewalk around State House grounds in protest of discrimination); W. Va. State Bd.
ofEduc. v. Barnette, 319 U.S. 624,63 S. Ct. 1178,87 L. Ed. 1628 (1943) (refusing
to salute the American flag while saying pledge of allegiance); Stromberg v.
California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931) (peaceful display of
red flag as a sign of opposition to organized government). Stutzman's conduct-
whether it is characterized as creating floral arrangements, providing floral
arrangement services for opposite-sex weddings, or denying those services for same-
31 No. 91615-2
sex weddings-.is not like the inherently expressive activities at issue in these cases.
Instead, it is like the unprotected conduct in FAIR, 54 7 U.S. at 66. 13
Finally, Stutzman asserts that even if her case doesn't fall neatly within the
contours of these prior holdings, we should nevertheless place her floral artistry
within a new, narrow protection. The "narrow" exception she requests would apply
to "businesses, such as newspapers, publicists, speechwriters, photographers, and
other artists, that create expression" as opposed to gift items, raw products, or
prearranged [items]." Reply Br. of Appellants at 45. In her case, she proposes that
she would be willing to sell Mr. Ingersoll "uncut flowers and premade
13 Stutzman and amici point to a handful of cases protecting various forms of art- and some of them do seem to provide surface support for their argument. See Br. of Appellants at 6-7; Mot. for Leave to File Br. & Br. for Cato lnst. as Amicus Curiae in Supp. of Appellants (Cato) at 7 (citing Wardv. Rock Against Racism, 491 U.S. 781,790-91, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989) (music without words); Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-58, 95 S. Ct. 1239, 43 L. Ed. 2d 448 (1975) (theater); Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1060 (9th Cir. 2010) (tattooing); Piarowski v. Ill. Cmty. Coil. Dist. 515, 759 F.2d 625, 627-28 (7th Cir. 1985) (stained glass windows on display in an art gallery at a junior college)). But, on closer examination, those cases do not expand the definition of "expressive conduct." For example, Piarowski held that stained glass windows were protected in the context of a college's demands that the artist move some of his pieces from a gallery to an alternate location on campus because they were objected to as "sexually explicit and racially offensive." 759 F.2d at 632. And the Anderson court reached its finding that tattoos receive First Amendment protections by pointing out that they "are generally composed of words, realistic or abstract images, symbols, or a combination of these, all of which are forms of pure expression that are entitled to full First Amendment protection." 621 F.3d at 1061. Stutzman's floral arrangements do not implicate any similar concerns. 32 No. 91615-2
arrangements." !d. at 46. But, as amicus Americans United for Separation of Church
and State (Americans United) points out, Stutzman's rule would create a "two-tiered
system" that carves out an enormous hole from public accommodations laws: under
such a system, a "dime-store lunch counter would be required to serve interracial
couples but an upscale bistro could turn them away." Br. of Amicus Curiae Ams.
United in Supp. of Resp'ts at 13. Indeed, the New Mexico Supreme Court also
grappled with this question, ultimately finding that "[ c]ourts cannot be in the
business of deciding which businesses are sufficiently artistic to warrant exemptions
from antidiscrimination laws," and noting that this concern was hardly hypothetical
in light of the proliferation of cases requesting exceptions for "florists, bakeries, and
other wedding vendors" who refused to serve gay couples. Elane Photography, 309 P.3d at 71.
Because Stutzman's sale of floral arrangements is not expressive conduct
protected by the First Amendment, we affirm the trial court and hold that the WLAD
does not violate free speech protections as applied to Stutzman in this case.
B. Stutzman does not argue that article I, section 5 of the Washington Constitution provides any greater protection than the First Amendment in this context; we therefore affirm the trial court's ruling that no article I, section 5 violation occurred in this case
Stutzman asserts violations of both state and federal free speech constitutional
provisions, though she does not distinguish between them.
33 No. 91615-2
As the Superior Court correctly points out, we interpret article I, section 5
independently from the First Amendment. Bradburn v. N. Cent. Reg'l Library Dist.,
168 Wash. 2d 789, 800, 231 P.3d 166 (2010). In some cases, we have found article I,
section 5 to be more protective than its federal counterpart, and in some cases, we
have held the two to contain equivalent protections. ld. In this case, however,
Stutzman has not assigned error to the Superior Court's use of a First Amendment
analysis rather than a separate state constitutional analysis. We therefore decline to
reach the issue of whether article I, section 5 rights in this context are coextensive
with First Amendment rights.
III. As Applied in This Case, the WLAD Does Not Violate Stutzman's Right to Religious Free Exercise under the First Amendment to the ·united States Constitution
In her second constitutional claim, Stutzman argues that the WLAD, as
applied to her in this case, violated her First Amendment right to religious free
exercise. We disagree.
The free exercise clause of the First Amendment, which applies to the States
through the Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213 (1940), provides that "Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof."
Laws that burden religion are subject to two different levels of scrutiny under the
34 No. 91615-2
free exercise clause. U.S. CaNST. amend I. Neutral, generally applicable laws
burdening religion are subject to rational basis review, 14 while laws that discriminate
against some or all religions (or regulate conduct because it is undertaken for
religious reasons) are subject to strict scrutiny .15
Stutzman argues that the WLAD is subject to strict scrutiny under a First
Amendment free exercise analysis because it is neither neutral nor generally
applicable. She is incorrect.
A law is not neutral, for purposes of a First Amendment free exercise
challenge if"the object of [the] law is to infringe upon or restrict practices because
of their religious motivation." Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 533, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993) (emphasis
added). Stutzman does not argue that our legislature passed the WLAD in order to
target religious people or people whose religions dictate opposition to gay marriage.
Instead, she argues that the WLAD is unfair because it grants exemptions for
"religious organizations" 16-permitting these organizations to refuse marriage
14 Emp 't Div., Dep 't of Human Res. of Or. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). 15 Church of the Lukumi BabaluAye, Inc. v. City ofHialeah, 508 U.S. 520, 532, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993).
16 See RCW 26.04.010(6) ("A religious organization shall be immune from any civil claim or cause of action, including a claim pursuant to chapter 49.60 RCW, based on its 35 No. 91615-2
services-but does not extend those same exemptions to her. Br. of Appellants at
37.
We disagree. The cases on which Stutzman relies all address laws that single
out for onerous regulation either religious conduct in general or conduct linked to a
particular religion, while exempting secular conduct or conduct associated with
other, nontargeted religions. E.g., Lukumi Babalu Aye, 508 U.S. at 532-42 (law was
not neutral where legislative history, including enactment of numerous exemptions
for members of other religions, evidenced a clear intent to target practitioners of
Santeria faith). They recognize that the "[t]he Free Exercise Clause forbids any
regulation of beliefs as such," and that this unconstitutional regulation may
sometimes be accomplished through a law that appears facially neutral. Blackhawk
v. Pennsylvania, 381 F.3d 202, 208-09 (3d Cir. 2004). But blanket exemptions for
religious organizations do not evidence an intent to target religion. Instead, they
indicate the opposite. Corp. ofPresiding Bishop of Church ofJesus Christ ofLatter-
Day Saints v. Amos, 483 U.S. 327, 335-38, 107 S. Ct. 2862, 97 L. Ed. 2d 273 (1987)
refusal to provide accommodations, facilities, advantages, privileges, services, or goods related to the solemnization or celebration of a marriage."). "Religious organization" is defined as including, "but . . . not limited to, churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, and other entities whose principal purpose is the study, practice, or advancement ofreligion." RCW 26.04.010(7)(b).
36 No. 91615-2
(exemption in Civil Rights Act for religious organizations does not violate the
establishment clause because it serves a secular purpose-to minimize governmental
interference with religion-and neither advances nor inhibits religion); Elane
Photography, 309 P.3d at 74-75 ("Exemptions for religious organizations are
common in a wide variety of laws, and they reflect the attempts of the Legislature to
respect free exercise rights by reducing legal burdens on religion.").
Stutzman also argues that the WLAD is not "generally applicable" because it
does not apply to businesses that employ fewer than eight persons, employees
working for a close family member or in domestic service, people renting out certain
multifamily dwellings, and distinctly private organizations.
Again, the authority Stutzman cites is inapposite. That authority stands for
two principles, neither of which is implicated here.
First, a law may fail the "general applicability" test, and thus trigger strict
scrutiny, if it adopts a patchwork of specific exemptions that conspicuously omits
certain religiously motivated conduct. As with nonneutrallaws, such an omission is
evidence that the government has deliberately targeted religious conduct for onerous
regulation, or at the very least devalued religion as a ground for exemption. Lukumi
Babalu Aye, 508 U.S. at 544-46 (holding that ordinance was not generally applicable
because it "pursues the city's governmental interests only against conduct motivated
37 No. 91615-2
by religious belief' (emphasis added)); Fraternal Order of Police Newark Lodge
No. 12 v. City of Newark, 170 F.3d 359, 365-66 (3d Cir. 1999) (police department
policy prohibiting officers from wearing beards triggered strict scrutiny because it
allowed individual exemptions for medical but not religious reasons; because the
medical exemption undermined the policy's purpose-to create uniformity of
appearance among its officers-just as much as a religious exemption would, the
disparity evidenced the department's preference for medical (secular) objections
over religious ones).
Second, a law is not "generally applicable" if it permits individual exemptions
but is then applied in a manner that is needlessly prejudicial to religion. Lighthouse
Inst.for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253,276 (3d. Cir. 2007)
("What makes a system of individualized exemptions suspicious is the possibility
that certain violations may be condoned when they occur for secular reasons but not
when they occur for religious reasons. In Blackhawk, it was not the mere existence
of an exemption procedure that gave us pause but rather the fact that the
Commonwealth could not coherently explain what, other than the religious
motivation of Blackhawk's conduct, justified the unavailability of an exemption."
(citing Blackhawk, 381 F.3d at 211)).
38 No. 91615-2
In this case, Stutzman seeks an exemption that would allow her to refuse
certain customer services to members of a WLAD-protected class on religious
grounds. Under a First Amendment free exercise analysis, the WLAD would trigger
strict scrutiny if it permitted that sort of discrimination only for nonreligious reasons,
and thus indicated the government's preference for secular discrimination. But the
WLAD does not do this.
Three of the alleged "exemptions" Stutzman cites have nothing at all to do
with the exemption she seeks (an exemption permitting discrimination in public
accommodations). The exemption for "[people] renting [out] certain multifamily
dwellings," Br. of Appellants at 38 (citing RCW 49.60.040(5))-is not really an
exemption from the WLAD at all. RCW 49.60.040(5) defines a "'[c]overed
multifamily dwelling'" to exclude all buildings with fewer than four units and certain
buildings with no elevators. In conjunction with RCW 49.60.222(2)(c), this
provision requires that "covered multifamily dwellings" be designed and constructed
in compliance with state and federal disability access laws. This is not a license for
certain landlords to discriminate. With respect to public accommodations, the same
is true of the WLAD' s "exemptions" for individuals employed in domestic service
or by family members and for "employers" with fewer than eight employees. See
Br. of Appellants at 38 (citing RCW 49.60.040(10), (11)). These exemptions protect
39 No. 91615-2
employers from WLAD liability as employers-that is, liability to their
employees-in the context of family relationships, domestic service, and very small
businesses; they have nothing to do with Stutzman's liability as the proprietor of a
public accommodation. Compare RCW 49.60.180 (listing prohibited "[u]nfair
practices of employers," all of which discriminate against employees or potential
employees-not customers), with RCW 49.60.215 (listing prohibited "[u]nfair
practices of places of public resort, accommodation, assemblage, amusement";
completely omitting any reference to "employers"). Thus, these exemptions are
distinguishable from the exemptions at issue in Lukumi Babalu Aye, Blackhawk, or
Fraternal Order of Police because none is an exemption that Stutzman would
actually like to invoke.
And the other "exemption" Stutzman identifies-for distinctly private
organizations, Br. of Appellants at 38 (citing RCW 49.60.040(2))-does not
undermine the purposes of the WLAD' s public accommodations provision: to
prevent discrimination in public accommodations. Thus, it does not trigger strict
scrutiny under a First Amendment free exercise analysis, either. Fraternal Order of
Police, 170 F.3d at 366 (contrasting exemptions that undermine a law's purpose-
and thus trigger strict scrutiny-with exemptions for "activities that [the
government] does not have an interest in preventing"; holding that police
40 No. 91615-2
department's exemption permitting undercover officers to wear beards did not
trigger strict scrutiny because the governmental interest served by the shaving
requirement-making officers readily recognizable as officers-did not apply to
undercover officers).
For these reasons, we reject Stutzman's claim that the WLAD, as applied to
her, triggers strict scrutiny under the free exercise clause of the First Amendment.
The WLAD is a neutral, generally applicable law subject to rational basis review.
Emp 't Div., Dep 't ofHuman Res. of Or. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). And the WLAD clearly meets that standard: it is rationally
related to the government's legitimate interest in ensuring equal access to public
accommodations. See Lighthouse, 510 F.3d at 277 (to withstand free exercise
challenge, neutral, generally applicable law "must be reasonable and not arbitrary
and it must bear' a rational relationship to a [permissible] state objective"' (alteration
in original) (quoting Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974))).
41 No. 91615-2
IV. As Applied in This Case, the WLAD Did Not Violate Stutzman's Right to Religious Free Exercise under Article I, Section 11 of the Washington Constitution
A. This court has applied strict judicial scrutiny to certain article I, section 11 claims
Stutzman also raises a state constitutional challenge to the WLAD as applied
to her religiously motivated conduct in this case. Article I, section 11 of the
Washington Constitution provides, in relevant part:
Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.
Obviously, this language differs from the language of the First Amendment's free
exercise clause.
In the past, however, we interpreted article I, section 11 to provide the same
protection as the First Amendment's free exercise clause. See First Covenant
Church ofSeattle v. City ofSeattle, 114 Wn.2d 392,402,787 P.2d 1352 (1990) (First
Covenant I), vacated and remanded, 499 U.S. 901, 111 S. Ct. 1097, 113 L. Ed. 2d 208 ( 1991 ). Thus, for many years this court relied on First Amendment free exercise
case law in article I, section 11 challenges and applied strict scrutiny to laws
burdening religion. Id. (citing Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10
42 No. 91615-2
L. Ed. 2d 965 (1963); Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972); Hobbie v. Unemployment Appeals Comm 'n, 480 U.S. 136, 107 S. Ct. 1046, 94 L. Ed. 2d 190 (1987) (law burdening religion must serve "compelling state
interest" and "constitute[] the least restrictive means to achieve the government's
objective")). 17
In 1990, however, things changed. That was the year that the United States
Supreme Court adopted rational basis review for claims that neutral, generally
applicable laws (like the WLAD) incidentally burden religion, in Smith, 494 U.S. at
878-90. Smith definitively repudiated strict scrutiny for neutral, generally applicable
laws prohibiting "socially harmful conduct." I d. at 884-85. It reasoned that applying
heightened scrutiny-which requires a balancing of governmental against personal
interests-would pose two problems. Id. First, it would vitiate the state's ability to
regulate, allowing every individual "'to become a law unto himself."' Id. at 885
17 Some scholarship distinguishes between the ''compelling interest" test and "strict scrutiny." E.g., Stephen A. Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny, 48 AM. J. LEGAL HIST. 355, 359-60 (2008) (describing the "compelling interest" standard as one of three barriers that legislation must overcome under strict scrutiny). But this court has always treated them as synonymous in religious free exercise cases. E.g., Backlund, 106 Wash. 2d at 641 ("Since [the plaintiffs] beliefs are protected by the free exercise clause of the First Amendment, the burden of proof shifts to the Board to prove that (1) a compelling governmental interest justifies the regulation in question and (2) the regulation is the least restrictive imposition on the practice of his belief to satisfy that interest." (citing United States v. Lee, 455 U.S. 252, 257, 102 S. Ct. 1051, 71 L. Ed. 2d 127 (1982); State v. Meacham, 93 Wash. 2d 735,740,612 P.2d 795 (1980))). 43 No. 91615-2
(quoting Reynolds v. United States, 98 U.S. (8 Otto) 145, 167, 25 L. Ed. 2d 244
(1878) ). Second, it would entangle civil courts in religion by requiring them to
evaluate the significance of a particular practice to a faith. Smith, 494 U.S. at 887
("[r]epeatedly and in many different contexts, we have warned that courts must not
presume to determine the place of a particular belief in a religion or the plausibility
of a religious claim"). The Smith Court reasoned that such a balancing test would
be incompatible with the religious pluralism that is fundamental to our national
identity. 494 U.S. at 888.
Smith's holding is limited in two ways. First, it left in place prior First
Amendment case law applying the "compelling interest" balancing test where the
statute in question "lent itself to individualized . . . assessment"-e.g., an
unemployment benefits statute under which an administrative court determines, on
a case-by-case basis, whether a person was fired for good cause. Id. at 884. In such
cases, the Court explained that "the State [already] has in place a system of
individual exemptions"-thus, the challenged law is not "generally applicable" for
purposes of First Amendment free exercise analysis. Id. Where an individual
requests a religious exemption from such a law, the government must have a
compelling reason for denying it. Id. Second, the Smith Court distinguished cases
44 No. 91615-2
involving "hybrid" claims-e.g., challenges to laws that burdened both religious
freedom and another right such as free speech. !d. at 881 (collecting cases).
We revisited our article I, section 11 test following Smith in First Covenant
Church of Seattle v. City of Seattle, 120 Wash. 2d 203, 840 P.2d 174 (1992) (First
Covenant II). In that case, the plaintiff church argued that its designation as a
historical landmark (subject to "controls" limiting alterations to its building) violated
both First Amendment and article I, section 11 protections. !d. at 208-09. In First
Covenant I, we applied strict scrutiny to both constitutional challenges and held that
the zoning law was unconstitutional. 114 Wash. 2d at 401-02, 410. On remand from
the United States Supreme Court following Smith, we addressed the state and federal
free exercise claims again. Regarding the First Amendment claim, the First
Covenant II court held that the challenged statute fell within both of the exceptions
to rational basis review recognized in Smith: it created a system of "individualized
assessments" and it raised "hybrid" constitutional concerns (by restricting speech as
well as religious free exercise). 120 Wash. 2d at 214-17. The court therefore held that
the historical landmark statute was subject to strict scrutiny under the First
Amendment. !d. at 217-18.
But after determining that the statute failed strict scrutiny as applied to the
plaintiff church-because a city's purely aesthetic or cultural interest in preserving
45 No. 91615-2
historical landmarks is not compelling-the First Covenant II court went on to
separately analyze the church's article I, section 11 claim. Id. at 223 ("The possible
loss of significant architectural elements is a price we must accept to guarantee the
paramount right of religious freedom ... [and] [a]lthough we might ... base our
decision solely on federal grounds, we decline to do so."). It performed a Gunwall 18
analysis and concluded that article I, section 11 "extends broader protection than the
[F]irst [A]mendment ... and precludes the City from imposing [the disputed]
Landmarks Preservation Ordinance on First Covenant's church." Id. at 229-30.
Since that time, our court has addressed four article I, section 11 claims-all
by churches challenging land use regulations 19-and has subjected the challenged
law to strict scrutiny in each case. Thus, both before and after Smith and First
Covenant II, we have applied the same four-prong analysis in an article I, section 11
18 State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 808 (1986). A Gunwall analysis determines whether a state constitutional provision is more protective than its federal counterpart by considering six nonexclusive factors: ( 1) the text of the state constitutional provision at issue, (2) significant differences between the text of parallel state and federal constitutional provisions, (3) state constitutional and common law history, (4) state law predating the state constitution, (5) structural differences between the state and federal constitutions, and (6) matters of particular state or local concern. !d. at 61-62.
19 City of Woodinville v. Northshore United Church ofChrist, 166 Wash. 2d 633, 644- 45, 211 P.3d 406 (2009); Open Door Baptist Church v. Clark County, 140 Wash. 2d 143, 156-60,995 P.2d 33 (2000); Munns v. Martin, 131 Wash. 2d 192, 195,930 P.2d 318 (1997); First United Methodist Church of Seattle v. Hr 'g Exam 'r for Seattle Landmarks Pres. Bd., 129 Wash. 2d 238, 249-50, 252-53, 916 P.2d 374 (1996). 46 No. 91615-2
challenge: where a party has (1) a sincere religious belief and (2) the exercise of that
belief is substantially burdened by the challenged law, the law is enforceable against
that party only if it (3) serves a compelling government interest and (4) is the least
restrictive means of achieving that interest. City of Woodinville v. Northshore
United Church of Christ, 166 Wash. 2d 633, 642, 211 P.3d 406 (2009); Backlund, 106 Wash. 2d at 641. And we have specifically held--in the context of a church's challenge
to a zoning law-that article I, section 11 is more protective of religious free exercise
than the First Amendment is. E.g., First Covenant II, 120 Wash. 2d at 224 (applying
strict scrutiny to zoning ordinance as a matter of state constitutional law because
"[ o ]ur state constitutional and common law history support a broader reading of
article [I], section 11, than of the First Amendment"). 20
20 The attorney general correctly notes that this court has never held that a corporate defendant such as Arlene's Flowers has a "conscience" or "sentiment" subject to article I, section 11 protections. See Att'y Gen. Resp. Br. at 31 ("Indeed the plain language of article I, section 11 guarantees its protections to 'every individual,' maldng no mention of protection for businesses."); Att'y Gen.'s Ans. to Brs. of Amici Curiae at 19 ("Neither Defendants nor their amici point to any Washington authority to support the notion that for-profit corporations are protected by article I, section 11."). But Stutzman argues only that she may assert her own free exercise rights on behalf of her corporation. Br. of Appellants at 32 n.24 ('protecting the free-exercise rights of [closely held] corporations . . . protects the religious liberty of the humans who own and control those companies"' (emphasis added) (quoting Burwell v. Hobby Lobby Stores, Inc.,_ U.S. _, 134 S. Ct. 2751, 2768, 189 L. Ed. 2d 675 (2014))). Thus, we address only Stutzman's individual claim that her article I, section 11 rights have been violated. We do not address whether Arlene's Flowers (the corporation) has any such rights. 47 No. 91615-2
The parties dispute the significance of these post-Smith holdings to this case.
Ingersoll and the attorney general argue that they are limited to zoning laws, as
applied to churches, and thus make no difference to the outcome under our long-
standing four-prong test. They maintain that a neutral health and safety regulation
like the WLAD creates no substantial burden on free exercise-and thus does not
trigger strict scrutiny-when it operates in the commercial marketplace. Stutzman
contends that under First Covenant II and its progeny, "strict scrutiny applies even
if the regulation 'indirectly burdens the exercise of religion.'" Br. of Appellants at
33 (quoting First Covenant II, 120 Wash. 2d at 226).
We decline to resolve that dispute here because we conclude that Stutzman's
free exercise claim fails even under the test she advances. Even if article I, section
11 provides Stutzman with the strongest possible protections, subjecting the WLAD
to strict scrutiny in this case, her state constitutional challenge must still fail.
B. The WLAD survives strict scrutiny
In the decades before First Covenant II, this court upheld numerous health
and safety regulations under strict scrutiny-the test that we then assumed was
required under the First Amendment. E.g., Backlund, 106 Wash. 2d at 641
(requirement that physician purchase professional liability insurance did not violate
First Amendment; State had a compelling interest in licensure requirement and the
48 No. 91615-2
requirement was "the least restrictive imposition on the practice of [the plaintiff's]
belief to satisfy that interest"); State v. Meacham, 93 Wash. 2d 735, 740-41, 612 P.2d 795 ( 1980) (court-ordered blood test for putative fathers did not violate First
Amendment; State had a compelling interest in securing child support and that
interest could not "be achieved by measures less drastic"); State ex rel. Holcomb v.
Armstrong, 39 Wash. 2d 860, 861, 863-64, 239 P.2d 545 (1952) (neither First
Amendment nor prior version of article I, section 11 barred mandatory tuberculosis
testing as condition of admission to University of Washington; "the public interest
[served] is the health of all of the students and employees of the university[;] .. .
[t]he danger to this interest is clear and present, grave and immediate [and] .. .
[i]nfringement of appellant's rights is a necessary consequence of a practical attempt
to avoid the danger"); see also State v. Clifford, 57 Wash. App. 127, 132-34, 787 P.2d 571 (1990) (law mandating that drivers be licensed does not violate First
Amendment; "[t]here is no less restrictive means available to satisfy the State's
compelling interest in regulating the driving of motor vehicles"). Like all of the laws
at issue in those cases, the WLAD's public accommodations provision is a neutral
health and safety regulation. Under our long-standing precedent, such laws satisfy
strict scrutiny in an article I, section 11 challenge.
49 No. 91615-2
To be sure, none of our previous article I, section 11 cases addressed an
antidiscrimination law. But numerous other courts have heard religious free exercise
challenges to such laws and upheld them under strict scrutiny. E.g., Swanner v.
Anchorage Equal Rights Comm 'n, 874 P.2d 274, 281-83 (Alaska 1994) (in rental
housing context, state antidiscrimination law passed strict scrutiny-meaning that
defendants were not entitled to a religious exemption-because "[t]he government
views acts of discrimination as independent social evils even if the prospective
tenants ultimately find housing"; moreover, "[ v]oluntary commercial activity does
not receive the same status accorded to directly religious activity"); State v. Sports
& Health Club, Inc., 370 N.W.2d 844, 852-54 (Minn. 1985) (in employment context,
state antidiscrimination law passed strict scrutiny in religious free exercise challenge
because "[t]he state's overriding compelling interest of eliminating discrimination
based upon sex, race, marital status, or religion could be substantially frustrated if
employers, professing as deep and sincere religious beliefs as those held by
appellants, could discriminate against the protected classes"); N. Coast Women's
Care Med. Grp., Inc. v. Superior Court, 44 Cal. 4th 1145, 1158-59, 81 Cal. Rptr. 3d 708, 189 P.3d 959 (2008) (assuming that strict scrutiny applied as a matter of state
constitutional law, it would not invalidate statute barring discrimination on the basis
of sexual orientation as applied to fertility clinic with religious objections to helping
50 No. 91615-2
gay patients conceive: "[t]he Act furthers California's compelling interest in
ensuring full and equal access to medical treatment irrespective of sexual orientation,
and there are no less restrictive means for the state to achieve that goal"); Gay Rights
Coal. ofGeorgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 31-39 (D.C.
Ct. App. 1987) (District of Columbia's Human Rights Act, former D.C. CoDE§ 1-
2520 (1981), recodified as D.C. CODE§ 2-1402.41, as applied to prohibit defendant
university from denying equal recognition and support to gay student groups,
survived strict scrutiny in university's pre-Smith free exercise challenge: "[t]o tailor
the Human Rights Act to require less of the University than equal access to its
'facilities and services,' without regard to sexual orientation, would be to defeat its
compelling purpose[:] [t ]he District of Columbia's overriding interest in eradicating
sexual orientation discrimination, if it is ever to be converted from aspiration to
reality, requires that Georgetown equally distribute tangible benefits to the student
groups"); see also Bob Jones Univ., 461 U.S. at 602-04 (federal government's denial
of tax exempt status to schools that enforced religiously motivated racially
discriminatory policies survived strict scrutiny: "the Government has a fundamental,
overriding interest in eradicating racial discrimination in education ... [and] that ..
. interest substantially outweighs whatever burden denial of tax benefits places on
petitioners' exercise of their religious beliefs"). Indeed, we are not aware of any
51 No. 91615-2
case invalidating an antidiscrimination law under a free exercise strict scrutiny
analysis.
Nevertheless, Stutzman argues that strict scrutiny is not satisfied in this case.
She reasons that since other florists were willing to serve Ingersoll, no real harm will
come from her refusal. And she maintains that the government therefore can't have
any compelling interest in applying the WLAD to her shop. In other words,
Stutzman contends that there is no reason to enforce the WLAD when, as she puts
it, "[N]o access problem exists." Br. of Appellants at 46.
We emphatically reject this argument. We agree with Ingersoll and Freed that
"[t]his case is no more about access to flowers than civil rights cases in the 1960s
were about access to sandwiches." Br. of Resp'ts Ingersoll and Freed at 32. As
every other court to address the question has concluded, public accommodations
laws do not simply guarantee access to goods or services. Instead, they serve a
broader societal purpose: eradicating barriers to the equal treatment of all citizens in
the commercial marketplace. Were we to carve out a patchwork of exceptions for
ostensibly justified discrimination,2 1 that purpose would be fatally undermined.
21 Stutzman argues that discrimination cannot be "invidious"-and thus subject to governmental prohibition-if it is based on religious beliefs. Br. of Appellants at 40-43. But she cites no relevant legal authority for this novel theory. She also argues that the government has no compelling interest in forcing her to speak or associate with Ingersoll or any other customer. But, as explained elsewhere in this opinion, the WLAD does not implicate Stutzman's rights of speech or association. 52 No. 91615-2
In conclusion, we assume without deciding that strict scrutiny applies to the
WLAD in this article I, section 11 challenge, and we hold that the law satisfies that
standard.
V. As Applied in This Case, the WLAD Does Not Violate Stutzman's Right to Free Association under the First Amendment to the United States Constitution
Stutzman argues that the WLAD, as applied by the trial court in her case,
violates her First Amendment right to freedom of association. But to support that
argument, she relies exclusively on cases addressing membership in private clubs:
Boy Scouts of America v. Dale, 530 U.S. 640, 653, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000); Hurley, 515 U.S. at 574; and Roberts, 468 U.S. at 618. 22 These cases
expressly distinguish a business' customer service (subject to generally applicable
antidiscrimination laws) from expressive conduct (protected from such laws by the
First Amendment). Dale, 530 U.S. at 648, 656-57 ("To determine whether a group
is protected by the First Amendment's expressive associational right, we must
determine whether the group engages m 'expressive association'"· ' antidiscrimination law violated the Boy Scouts' First Amendment freedom of
association in part because the Boy Scouts was a membership organization instead
22 Stutzman also cites one case addressing speech: United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 818, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000). Reply Br. of Appellants at 28. This opinion addresses Stutzman's free expression claim elsewhere. 53 No. 91615-2
of a "clearly commercial entit[y]."); Hurley, 515 U.S. at 572, 571 (state
antidiscrimination law at issue traditionally applied to "the provision of publicly
available goods, privileges, and services" by, "[a]t common law, innkeepers, smiths,
and others who 'made profession of a public employment"'; but it would be
"peculiar" to extend that law beyond the customer service context so that it applied
to the inherently expressive conduct of marching in a parade).
In fact, the United States Supreme Court has even held that states may enforce
antidiscrimination laws against certain private organizations, defined by particular
goals and ideologies, if the enforcement will not impair the group's ability to pursue
those goals and espouse those ideologies. Roberts, 468 U.S. at 628 (even though
First Amendment protects private groups, those groups are subject to
antidiscrimination laws to the extent that enforcement "will [not] change the content
or impact of the organization's speech").
But the Supreme Court has never held that a commercial enterprise, open to
the general public, is an '"expressive association'" for purposes ofFirst Amendment
protections, Dale, 530 U.S. at 648. We therefore reject Stutzman's free association
claim.
54 No. 91615-2
VI. As Applied in This Case, the WLAD Does Not Violate Stutzman's Constitutional Protections under the "Hybrid Rights" Doctrine
Stutzman also argues that the WLAD, as applied to her in this case, triggers
strict scrutiny because it implicates "hybrid rights." Br. of Appellants at 40. As
noted above, a law triggers strict scrutiny if it burdens both religious free exercise
and another fundamental right such as speech or association. First Covenant II, 120 Wash. 2d at 217-18 ("[t]he less protective free exercise standard set forth in Smith ...
does not apply because the case presents a 'hybrid situation': First Covenant's claim
involves the free exercise clause in conjunction with free speech" (citing Smith, 494 U.S. at 904 (O'Connor, J., concurring in judgment))). But Stutzman's claim fails
for two reasons. First, the only fundamental right implicated in this case is the right
to religious free exercise. Stutzman's rights to speech and association are not
burdened. See supra Parts II, V. Second, even if the WLAD does trigger strict
scrutiny in this case, it satisfies that standard. See supra Section IV.B.
VII. The Trial Court Did Not Err by Imposing Personal Liability on Stutzman Instead of Solely on Her Corporation, Arlene's Flowers Inc.
In addition to finding that Stutzman violated the WLAD, the trial court also
found that Stutzman violated the CPA. This is because the WLAD provides that an
act of public accommodation discrimination is an "unfair practice" and a per se
55 No. 91615-2
violation ofthe CPA. RCW 49.60.030(3). 23 Stutzman concedes that if she violated
the WLAD, then Arlene's Flowers is liable for a CPA violation.
But Stutzman argues that she cannot be personally liable for violating the CPA
because (1) she kept her affairs separate from Arlene's Flowers' and (2) no
Washington court has ever applied the "responsible-corporate-officer doctrine"
outside the fraud context. Br. of Appellants at 49 (citing Grayson v. Nordic Constr.
Co., 92 Wash. 2d 548, 552-53, 599 P.2d 1271 (1979); One Pac. Towers Homeowners'
Ass 'n v. HAL Real Estate Invs., Inc., 108 Wash. App. 330, 347-48, 30 P.3d 504 (2001),
aff'd in part and rev 'din part, 148 Wash. 2d 319, 61 PJd 1094 (2002)).
The authority Stutzman cites does not support this argument. In Grayson, this
court held that the defendant could be personally liable for his company's CPA
violation even though there were no grounds for piercing the corporate veil. 92 Wash. 2d at 553-54. This directly contradicts Stutzman's theory that she cannot be
personally liable under the CPA unless she commingled her finances with Arlene's
23 The trial court also found that Stutzman's actions violated the CPA-because they were an "'unfair or deceptive act or practice . . . occurring in trade or commerce, and [impacting the] public interest'"-even if she did not also violate the WLAD. CP at 2634- 37 (quoting State v. Kaiser, 161 Wash. App. 705, 719, 254 P.3d 850 (2011)). This ruling is questionable, but because we conclude that Stutzman did violate the WLAD, and because Stutzman did not assign error to this ruling in her opening brief, we do not address it.
56 No. 91615-2
Flowers'. And the other case, One Pac. Towers, 108 Wash. App. 330, does not address
a CPA claim.
On the other hand, there is long-standing precedent in Washington holding
that individuals may be personally liable for a CPA violation if they "participate[]
in the wrongful conduct, or with knowledge approve[] of the conduct." State v.
Ralph Williams' N. W. Chrysler Plymouth, Inc., 87 Wash. 2d 298, 322, 553 P.2d 423
( 197 6). Liability for such participation or approval does not depend on piercing the
corporate veil. ld. This is consistent with the CPA's plain language, which
authorizes the attorney general to bring an action against "against any person to
restrain and prevent the doing of any act herein prohibited or declared to be
unlawful," RCW 19.86.080(1) (emphasis added), and which defines "person" to
include "where applicable, natural persons," as well as corporate entities, RCW
19.86.010(1).
Such individual liability does not constitute an application of, or expansion
of, the responsible corporate officer doctrine. That doctrine expands liability from
a corporation to an individual officer who would not otherwise be liable "where the
officer stands 'in responsible relation to a public danger.'" Dep't of Ecology v.
Lundgren, 94 Wash. App. 236, 243, 971 P.2d 948 (1999) (quoting United States v.
Dotterweich, 320 U.S. 277,281, 64 S. Ct. 134, 88 L. Ed. 48 (1943)). Here, the trial
57 No. 91615-2
court did not find Stutzman (the individual) vicariously or secondarily liable based
on conduct of Arlene's Flowers (the corporation). It found her liable because of acts
that she herself committed.
CONCLUSION
The State of Washington bars discrimination in public accommodations on
the basis of sexual orientation. Discrimination based on same-sex marriage
constitutes discrimination on the basis of sexual orientation. We therefore hold that
the conduct for which Stutzman was cited and fined in this case-refusing her
commercially marketed wedding floral services to Ingersoll and Freed because theirs
would be a same-sex wedding-constitutes sexual orientation discrimination under
the WLAD. We also hold that the WLAD may be enforced against Stutzman
because it does not infringe any constitutional protection. As applied in this case,
the WLAD does not compel speech or association. And assuming that it
substantially burdens Stutzman's religious free exercise, the WLAD does not violate
her right to religious free exercise under either the First Amendment or article I,
section 11 because it is a neutral, generally applicable law that serves our state
government's compelling interest in eradicating discrimination in public
accommodations. We affirm the trial court's rulings.
58 No. 91615-2
WE CONCUR:
0~9
V~-· '7
59 | 02-16-2017 | [
"This opinion was filed for record at fJ, 0(i(),ft. onf.UJ lf£1 2Jlll (jfA-ok;;Ci ~ SUSAN L. CARLSON SUPREME COURT CLERK IN THE SUPREME COURT OF THE STATE OF WASHINGTON STATE OF WASHINGTON, NO. 91615-2 ENBANC Respondent, ·'V. ARLENE'S FLOWERS, INC., d/b/a ARLENE'S FLOWERS AND GIFTS, and Filed - -FEB 1 6 2017 ----- BARRONELLE STUTZMAN, Appellants. ROBERT INGERSOLL and CURT FREED, Respondents, v. ARLENE'S FLOWERS, INC., d/b/a ARLENE'S FLOWERS AND GIFTS, and BARRONELLE STUTZMAN, Appellants. GORDON McCLOUD, J.-The State of Washington bars discrimination in \"public ... accommodation[s]\" on the basis of\"sexual orientation.\"",
"RCW 49.60.215 No. 91615-2 (Washington Law Against Discrimination (WLAD)). Barronelle Stutzman owns and operates a place of public accommodation in our state: Arlene's Flowers Inc. Stutzman and her public business, Arlene's Flowers and Gifts, refused to sell wedding flowers to Robert Ingersoll because his betrothed, Curt Freed, is a man. The State and the couple sued, each alleging violations of the WLAD and the Consumer Protection Act (CPA), ch. 19.86 RCW. Stutzman defended on the grounds that the WLAD and CPA do not apply to her conduct and that, if they do, those statutes violate her state and federal constitutional rights to free speech, free exercise, and free association.",
"The Benton County Superior Court granted summary judgment to the State and the couple, rejecting all of Stutzman's claims. We granted review and now affirm. FACTS In 2004, Ingersoll and Freed began a committed, romantic relationship. In 2012, our state legislature passed Engrossed Substitute Senate Bill 6239, which recognized equal civil marriage rights for same-sex couples. LAWS OF 2012, ch. 3, § 1. Freed proposed marriage to Ingersoll that same year. The two intended to marry on their ninth anniversary, in September 2013, and were \"excited about organizing [their] wedding.\" Clerk's Papers (CP) at 350. Their plans included inviting \"[a] 2 No. 91615-2 hundred plus\" guests to celebrate with them at Bella Fiori Gardens, complete with a dinner or reception, a photographer, a caterer, a wedding cake, and flowers. Id. at 1775-77. By the time he and Freed became engaged, Ingersoll had been a customer at Arlene's Flowers for at least nine years, purchasing numerous floral arrangements from Stutzman and spending an estimated several thousand dollars at her shop.",
"Stutzman is the owner and president of Arlene's Flowers. She employs approximately 10 people, depending on the season, including three floral designers, one of whom is herself. Stutzman knew that Ingersoll is gay and that he had been in a relationship with Freed for several years. The two men considered Arlene's Flowers to be \"[their] florist.\" Id. at 350. Stutzman is an active member of the Southern Baptist church. It is uncontested that her sincerely held religious beliefs include a belief that marriage can exist only between one man and one woman. On February 28, 2013, Ingersoll went to Arlene's Flowers on his way home from work, hoping to talk to Stutzman about purchasing flowers for his upcoming wedding. Ingersoll told an Arlene's Flowers employee that he was engaged to marry Freed and that they wanted Arlene's Flowers to provide the flowers for their wedding. The employee informed Ingersoll that Stutzman was not at the shop and 3 No. 91615-2 that he would need to speak directly with her. The next day, Ingersoll returned to speak with Ms. Stutzman.",
"At that time, Stutzman told Ingersoll that she would be unable to do the flowers for his wedding because of her religious beliefs, specifically, because of\"her relationship with Jesus Christ.\" Id. at 155, 351, 1741-42, 1744-45, 1763. Ingersoll did not have a chance to specify what kind of flowers or floral arrangements he was seeking before Stutzman told him that she would not serve him. They also did not discuss whether Stutzman would be asked to bring the arrangements to the wedding location or whether the flowers would be picked up from her shop. Stutzman asserts that she gave Ingersoll the name of other florists who might be willing to serve him, and that the two hugged before Ingersoll left her store. Ingersoll maintains that he walked away from that conversation \"feeling very hurt and upset emotionally.\"",
"Id. at 1743. Early the next morning, after a sleepless night, Freed posted a status update on his personal Facebook feed regarding Stutzman's refusal to sell him wedding flowers. The update observed, without specifically naming Arlene's Flowers, that the couple's \"favorite Richland Lee Boulevard flower shop\" had declined to provide flowers for their wedding on religious grounds, and noted that Freed felt \"so deeply offended that apparently our business is no longer good business,\" because \"[his] 4 No. 91615-2 loved one [did not fit] within their personal beliefs.\" Id. at 1262. This message was apparently widely circulated, though Ingersoll testified that their Facebook settings were such that the message was \"only intended for our friends and family.\" Id.",
"at 1760, 1785. Eventually, the story drew the attention of numerous media outlets. As a result of the \"emotional toll\" Stutzman's refusal took on Freed and Ingersoll, they \"lost enthusiasm for a large ceremony\" as initially imagined. Id. at 1490. In fact, the two \"stopped planning for a wedding in September 2013 because [they] feared being denied service by other wedding vendors.\" I d. at 351. The couple also feared that in light of increasing public attention-some of which caused them to be concerned for their own safety-as well as then-ongoing litigation, a larger wedding might require a security presence or attract protesters, such as the Westboro Baptist group. So they were married on July 21, 2013, in a modest ceremony at their home.",
"There were 11 people in attendance. For the occasion, Freed and Ingersoll purchased one bouquet of flowers from a different florist and boutonnieres from their friend. When word of this story got out in the media, a handful of florists offered to provide their wedding flowers free of charge. Stutzman also received a great deal of attention from the publicity surrounding this case, including threats to her business and other unkind messages. 5 No. 91615-2 Prior to Ingersoll's request, Arlene's Flowers had never had a request to provide flowers for a same-sex wedding, and the only time Stutzman has ever refused to serve a customer is when Ingersoll and Freed asked her to provide flowers for their wedding.",
"The decision not to serve Ingersoll was made strictly by Stutzman and her husband. After Ingersoll's and Freed's request, Stutzman developed an \"unwritten policy\" for Arlene's Flowers that they \"don't take same sex marriages.\" Id. at 120. Stutzman states that the only reason for this policy is her conviction that \"biblically marriage is between a man and a woman.\" Id. at 120-21. Aside from Ingersoll and Freed, she has served gay and lesbian customers in the past for other, non-wedding-related flower orders. Stutzman maintains that she would not sell Ingersoll any arranged flowers for his wedding, even if he were asking her only to replicate a prearranged bouquet from a picture book of sample arrangements. She believes that participating, or allowing any employee of her store to participate, in a same-sex wedding by providing custom floral arrangements and related customer service is tantamount to endorsing marriage equality for same-sex couples. She draws a distinction between creating floral arrangements--even those designed by someone else-and selling bulk flowers and \"raw materials,\" which she would be happy to do for Ingersoll and Freed.",
"I d. at 546-4 7. Stutzman believes that to create floral arrangements is to use 6 No. 91615-2 her \"imagination and artistic skill to intimately participate in a same-sex wedding ceremony.\" Id. at 547. However, Stutzman aclmowledged that selling flowers for an atheistic or Muslim wedding would not be tantamount to endorsing those systems of belief. By Stutzman's best estimate, approximately three percent of her business comes from weddings. Stutzman is not currently providing any wedding floral services (other than for members of her immediate family) during the pendency of this case. PROCEDURAL HISTORY After the State became aware of Stutzman's refusal to sell flowers to Ingersoll and Freed, the Attorney General's Office sent Stutzman a letter. It sought her agreement to stop discriminating against customers on the basis of their sexual orientation and noted that doing so would prevent further formal action or costs against her. The letter asked her to sign an \"Assurance of Discontinuance,\" which stated that she would no longer discriminate in the provision of wedding floral services.",
"Stutzman refused to sign the letter. As a result, the State filed a complaint for injunctive and other relief under the CPA and WLAD against both Stutzman and Arlene's Flowers, in Benton County Superior Court on April 9, 2013. Stutzman filed an answer on May 16, 2013, 7 No. 91615-2 asserting, among other defenses, that her refusal to furnish Ingersoll with wedding services was protected by the state and federal constitutions' free exercise, free speech, and freedom of association guaranties. Ingersoll and Freed filed a private lawsuit against Arlene's Flowers and Stutzman on April 18, 2013, which the trial court consolidated with the State's case on July 24, 2013. The parties filed various cross motions for summary judgment. The trial court ultimately entered judgment for the plaintiffs in both cases, awarding permanent injunctive relief, as well as monetary damages for Ingersoll and Freed to cover actual damages, attorneys' fees, and costs, and finding Stutzman personally liable. When it granted the plaintiffs' motions for summary judgment, the trial court made seven rulings that are at issue in this appeal.",
"First, it issued two purely statutory rulings: ( 1) that Stutzman violated the WLAD' s public accommodations provision (RCW 49.60.215(1)) and the CPA (see RCW 19.86.020 and RCW 49.60.030) by refusing to sell floral services for same-sex weddings and (2) that both Stutzman (personally) and Arlene's Flowers (the corporate defendant) were liable for these violations. CP at 2566-600. Next, the court made five constitutional rulings. It concluded that the application of the WLAD's public accommodations provision to Stutzman in this case ( 1) did not violate Stutzman's right to free speech under the First Amendment to the United States Constitution or article I, section 5 8 No. 91615-2 of the Washington Constitution, (2) did not violate Stutzman's right to religious free exercise under the First Amendment, (3) did not violate her right to free association under the First Amendment, (4) did not violate First Amendment protections under the hybrid rights doctrine, and (5) did not violate Stutzman's right to religious free exercise under article I, section 11 of the Washington Constitution. !d.",
"at 2601-60. Stutzman appealed directly to this court, assigning error to all seven of those rulings. We granted direct review. Order, Ingersoll v. Arlene Js Flowers, No. 91615- 2 (Wash. Mar. 2, 2016). With respect to most of the claims, Stutzman and Arlene's Flowers make identical arguments-in other words, Stutzman asserts that both she and her corporation enjoy identical rights of free speech, free exercise, and free association. It is only with respect to the CPA claim that Stutzman asserts a separate defense: she argues that even if Arlene's Flowers is liable for the CPA violation, she cannot be personally liable for a violation of that statute. ANALYSIS As noted above, this case presents both statutory and constitutional questions. Both are reviewed de novo. Williams v. Tilaye, 174 Wash. 2d 57, 61, 272 P.3d 235 (2012) (\"[s]tatutory interpretation is a question of law reviewed de novo\" (citing State v. Wentz, 149 Wash. 2d 342, 346, 68 P.3d 282 (2003))); Hale v. Wellpinit Sch. Dist. No. 49, 165 Wash. 2d 494, 503, 198 P.3d 1021 (2009) (appellate court \"review[s] 9 No.",
"91615-2 all constitutional challenges de novo\" (citing State v. Jones, 159 Wash. 2d 231, 237, 149 P.3d 636 (2006))). I. Stutzman's Refusal To Provide Custom Floral Arrangements for a Same-Sex Wedding Violated the WLAD's Prohibition on Discrimination in Public Accommodations, RCW 49.60.215 Stutzman's first statutory argument implicates the WLAD, chapter 49.60 RCW. The trial court ruled that Stutzman violated RCW 49.60.215, which prohibits discrimination in the realm of public accommodations. That statute provides: (1) It shall be an unfair practice for any person or the person's agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement, except for conditions and limitations established by law and applicable to all persons, regardless of ... sexual orientation .... RCW 49.60.215.",
"The protected class status of \"sexual orientation\" was added to this provision in 2006. LAws OF 2006, ch. 4, § 13. The WLAD defines places of public accommodation to include places maintained \"for the sale of goods, merchandise, services, or personal property, or for the rendering of personal services . . . . \" RCW 49.60.040(2). Protected individuals are guaranteed \"[t]he right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges\" of such places. RCW 10 No. 91615-2 49.60.030(1)(b). Additionally, the WLAD states that \"[t]he right to be free from discrimination because of . .. sexual orientation ... is recognized as and declared to be a civil right,\" RCW 49.60.030(1) (emphasis added). The WLAD prohibits discrimination on the different basis of \"marital status\" in the employment context, but not in the context of public accommodations. Compare RCW 49.60.180 (listing \"marital status\" as a protected class in section governing unfair practices of employers) with RCW 49.60.215 (omitting marital status from analogous public accommodations statute). RCW 49.60.030(2) authorizes private plaintiffs to bring suit for violations of the WLAD. To make out a prima facie case under the WLAD for discrimination in the public accommodations context, the plaintiff must establish four elements: (1) that the plaintiff is a member of a protected class, RCW 49.60.030(1); (2) that the defendant is a place of public accommodation, RCW 49.60.215; (3) that the defendant discriminated against the plaintiff, whether directly or indirectly, id. ; and (4) that the discrimination occurred \"because of' the plaintiffs status or, in other words, that the protected status was a substantial factor causing the discrimination, RCW 49.60.030.",
"See also Fell v. Spokane Transit Auth., 128 Wash. 2d 618, 637, 911 P .2d 1319 ( 1996) (setting forth elements of prima facie case for disability discrimination under RCW 49.60.215). 11 No. 91615-2 Stutzman contests only the last element: she contends that she did not discriminate against Ingersoll \"because of' his protected class status under the WLAD. See Br. of Appellants at 19-21. 1 She offers three arguments in support of this interpretation of the statute. First, Stutzman argues that if she discriminated against Ingersoll, it was on the basis of his \"marital status,\" not his \"sexual orientation.\" Br. of Appellants at 19- 21. Second, she argues that the legislature could not have intended the 2006 amendments to protect people seeking same-sex wedding services since same-sex marriages were \"illegal\" in Washington in 2006. Id. at 15-17.",
"She points out that when the legislature amended the public accommodations provisions of the WLAD in 2006, it also added language stating that the chapter \"shall not be construed to endorse any specific belief, practice, behavior, or orientation,\" and affirming that the addition \"shall not be constnled to modify or supersede state law relating to marriage.\" Id. at 17-18, 15 (quoting LAWS OF 2006, ch. 4, § 2 (codified at RCW 49.60.020)). Third, Stutzman argues that because the WLAD protects both sexual 1 No one disputes that Ingersoll and Freed are gay men who sought to marry in recognition of their nearly nine-year committed relationship. And Stutzman admits that she is the \"sole owner and operator of Arlene's Flowers, Inc.,\" CP at 535, which is \"a Washington for-profit corporation engaged in the sale of goods and services, including flowers for weddings,\" to the public. Id. at 2, 7-8. Furthermore, Stutzman confirms that she declined to do the flowers for Ingersoll's wedding because of her religious convictions.",
"12 No. 91615-2 orientation and religion, it requires that courts balance those rights when they conflict. 2 These arguments fail. A. By refusing to provide services for a same-sex wedding, Stutzman discriminated on the basis of \"sexual orientation\" under the WLAD Stutzman argues that the WLAD distinguishes between discrimination on the basis of \"sexual orientation\"-which the statute prohibits-and discrimination against those who marry members of the same sex. But numerous courts-including our own-have rejected this kind of status/conduct distinction in cases involving statutory and constitutional claims of discrimination. E.g., Hegwine v. Longview Fibre Co.) Inc., 162 Wash. 2d 340, 349, 172 P.3d 688 (2007) (\"under the plain language of the WLAD and its interpretative regulations, pregnancy related employment discrimination claims are matters of sex discrimination\"); Elane Photography) LLC v. Willock, 2013-NMSC-040, 309 P.3d 53 (2013) (rejecting argument identical to Stutzman's, in context ofNew Mexico's Human Rights Act (NMHRA), N.M. STAT.",
"ANN.§§ 28-1-1 to 28-1-13) 3 ; Christian Legal Soc)y Chapter ofUniv. ofCal. v. 2 Stutzman also argues that by compelling her to furnish flowers for a same-sex marriage ceremony, the State \"endorses\" same-sex marriages and also requires her to \"endorse\" them. Br. of Appellants at 18. She claims that this conflicts with the WLAD provision stating that \"[t]his chapter shall not be construed to endorse any specific belief, practice, behavior, or orientation.\" RCW 49.60.020. But Stutzman cites no legal authority for this interpretation of the term \"endorse\" in the WLAD. 3 In Elane Photography, the New Mexico Supreme Court addressed the question of whether a wedding photographer discriminated against a lesbian couple on the basis of 13 No. 91615-2 Martinez, 561 U.S. 661,672,688, 130 S. Ct. 2971, 177 L. Ed.",
"2d 838 (2010) (student organization was discriminating based on sexual orientation, not belief or conduct, when it excluded from membership any person who engaged in \"'unrepentant homosexual conduct\"'; thus, University's antidiscrimination policy did not violate First Amendment protections); see also Lawrence v. Texas, 539 U.S. 558, 575, 123 S. Ct. 24 72, 156 L. Ed. 2d 508 (2003) (by criminalizing conduct typically undertaken by gay people, a state discriminates against gay people in violation of protections under the Fourteenth Amendment to the federal constitution); Romer v. Evans, 517 U.S. 620, 641, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996) (Scalia, J., dissenting) (\"'After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.'\" (quoting Padula v. Webster, their sexual orientation by refusing to photograph their wedding under a state public accommodations law similar to Washington's WLAD. 309 P.3d 53. The proprietor of Elane Photography argued, much like Stutzman here, that she was not discriminating against Willock and her fiancee based on their sexual orientation, but rather was choosing not to \"endorse\" same-sex marriage by photographing one in conflict with her religious beliefs.",
"!d. at 61. The court rejected Elane Photography's attempt to distinguish status from conduct, finding that \"[t]o allow discrimination based on conduct so closely correlated with sexual orientation would severely undermine the purpose of the NMHRA.\" !d. Elane Photography was represented on appeal by the same organization-Alliance Defending Freedom-that represents Stutzman before this court. !d. at 58; see also Mullins v. Masterpiece Cakeshop, Inc., 2015 COA 115, ~~ 1-2, 370 P.3d 272 (2015) (holding that baker's refusal to make wedding cake for same-sex marriage violated public accommodations provision of state Anti-Discrimination Act (Co. REV. STAT. §§ 24-34- 401 to 24-34-406) and rejecting free speech and free exercise defenses), cert. denied, No. 15SC738 (Colo. Apr. 25, 2016). 14 No.",
"91615-2 261 U.S. App. D.C. 365, 371, 822 F.2d 97 (1987))); Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 270, 113 S. Ct. 753, 122 L. Ed. 2d 34 (1993) (summarizing that some conduct is so linked to a particular group of people that targeting it can readily be interpreted as an attempt to disfavor that group by stating that \"[a] tax on wearing yarmulkes is a tax on Jews\"); 4 Bob Jones Univ. v. United States, 461 U.S. 574,605, 103 S. Ct. 2017,76 L. Ed. 2d 157 (1983) (\"discrimination on the basis of racial affiliation and association is a form of racial discrimination\"). 5 Finally, last year, the Supreme Court likened the denial of marriage equality to same- sex couples itself to discrimination, noting that such denial \"works a grave and 4 Stutzman argues that Bray actually supports her position because the Bray Court rejected the argument that a group's antiabortion protests outside clinics reflected an '\"invidiously discriminatory animus\"' towards women in general. 506 U.S. at 269 (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971)); Reply Br. of Appellants at 39.",
"This is related to her argument in the opening brief that because she generally lacks animus towards gay people, and because her refusal to provide service to Mr. Ingersoll was motivated by religious beliefs, she cannot be said to have discriminated \"because of' sexual orientation as required by the WLAD. See Br. of Appellants at 19-21. From Bray, Stutzman concludes that her decision to decline Mr. Ingersoll's \"artistic commission\" was acceptable because it was \"reasonable\" and she bore \"no underlying animus\" towards gay people in general. Reply Br.",
"of Appellants at 40. However, Bray dealt with a question of statutory interpretation of 42 U.S.C. § 1985(3), which has been interpreted to require a showing of animus. See Bray, 506 U.S. at 267-68; Griffin, 403 U.S. at 102. In contrast, we have already addressed this question of an animus requirement with regards to the WLAD and have held that it contains no such requirement (see discussion below).",
"5 See also Blackburn v. Dep't of Social & Health Servs., 186 Wash. 2d 250, 258-59, 37 5 P .3d 107 6 (20 16) (discrimination on basis of race occurs even where racially motivated staffing decision might have been based on benign reason). 15 No. 91615-2 continuing harm,\" and is a \"disability on gays and lesbians [that] serves to disrespect and subordinate them.\" Obergefell v. Hodges,_ U.S. _, 135 S. Ct. 2584, 2604, 2607-08, 192 L. Ed. 2d 609 (2015) (fundamental right to marry includes same-sex couples and is protected by due process and equal protection clauses of Fourteenth Amendment; abrogating the equal protection and due process holdings in Andersen v. King County, 158 Wash. 2d 1, 30, 138 P.3d 963 (2006) (plurality opinion) to the contrary). 6 In accordance with this precedent, we reject Stutzman's proposed distinction between status and conduct fundamentally linked to that status. This is consistent with the language of the WLAD itself, which, as respondents observe, states that it is to be construed liberally, RCW 49.60.020; that all people, regardless of sexual orientation are to have ''full enjoyment of any of the accommodations, advantages, facilities, or privileges\" of any place of public accommodation, RCW 49.60.030 (emphasis added); and that all discriminatory acts, including any act \"which directly or indirectly results in any distinction, restriction, or discrimination\" based on a 6 In response to the authority cited here, Stutzman cites two cases for the proposition that other courts have drawn a distinction between conduct and status.",
"See Reply Br. of Appellants at 36-37. She draws our attention to two trial court decisions from Kentucky and Virginia. ld. 16 No. 91615-2 person's sexual orientation is an unfair practice in violation of the WLAD, RCW 49.60.215 (emphasis added). B. There is no same-sex wedding exception to the WLAD's public accommodation provision, RCW 49.60.215 For the reasons given in Section I.A above, the plain language of RCW 49.60.215 prohibits Stutzman's refusal to provide same-sex wedding services to Ingersoll; such refusal constitutes discrimination on the basis of\"sexual orientation,\" in violation ofRCW 49.60.215. The same analysis applies to her corporation.",
"Stutzman asks us to read an implied same-sex wedding exception into this statute. She argues that the legislature could not have intended to require equal access to public accommodations for same-sex wedding services because when it amended RCW 49.60.215 to prohibit sexual orientation discrimination, same-sex marriage was \"illegal\" in Washington. We reject this argument for two reasons. First, the WLAD already contains an express exemption to RCW 49.60.215 for \"religious organization[s]\" 7 that object to providing public accommodations for same-sex weddings. LAWS OF 2012, ch. 3, 7 This exemption does not extend to Arlene's Flowers, which does not meet the WLAD' s definition of a \"religious organization.\"",
"I d. at § 1(7)(b) (defining \"religious organization\" to include \"entities whose principal purpose is the study, practice, or advancement of religion,\" such as \"churches, mosques, synagogues, temples,\" etc.). 17 No. 91615-2 § 1(5) (\"[n]o religious organization is required to provide accommodations, facilities, advantages, privileges, services, or goods related to the solemnization or celebration of a marriage\"). If the WLAD already excluded same-sex wedding services from the public accommodations covered under RCW 49.60.215, this exemption would be superfluous. We interpret statutes to avoid such superfluity whenever possible. Rivardv.",
"State, 168 Wn.2d 775,783,231 P.3d 186 (2010) (in giving meaning to ambiguous statutory provisions, \"we interpret a statute to give effect to all language, so as to render no portion meaningless or superfluous\"). Second, for purposes of the analysis Stutzman would like us to adopt, same- sex marriage has never been \"illegal\" in Washington. Stutzman cites our decision in Waggoner v. Ace Hardware Corp., 134 Wash. 2d 748, 750, 953 P.2d 88 (1998), which rejected a claim of marital status discrimination by two people terminated from their jobs for cohabiting in contravention of their workplace antinepotism policy. Waggoner argued that \"cohabitation\" fit within the meaning of the term \"marital status.\"",
"In examining this question of statutory interpretation, we determined that the plain meaning of the word \"marital\"-that is, pertaining to \"the status of being married, separated, divorced, or widowed\"-was sufficient to resolve the question against petitioners. Id. at 753. We thus rejected Waggoner's argument because \"[ w]e presume legislative consistency when called upon to construe 18 No. 91615-2 statutory enactments or new amendments to old ones\" and our legislature had criminalized cohabitation prior to protecting marital status under the WLAD. Id. at 754. Of significance here, we noted that cohabitation remained a crime for a full three years after marital status was included as a protected status, and observed that \"[i]t would be most anomalous for the Legislature to criminalize and protect the same conduct at the same time.\" !d. (emphasis added).",
"Stutzman argues that we should treat same-sex marriage the same way and hold that the legislature could not possibly have intended to protect that practice when it protected sexual orientation as a status. But Stutzman's reliance on Waggoner is misplaced. Washington's Defense of Marriage Act did not criminalize same-sex marriage. Former RCW 9.79.120 (1973), repealed by LAWS OF 1975, 1st Ex. Sess., ch. 260, § 9A.92.010(211). Rather, it codified, as a matter of state law, that the only legally recognized marriages in the State of Washington were those between a man and a woman. See LAWS OF 1998, ch. 1, § 2 (\"It is the intent of the legislature ... to establish public policy against same-sex marriage in statutory law that clearly and definitively declares same-sex marriages will not be recognized in Washington\"). Former RCW 26.04.010 (1998) enacted no criminal penalties for attempts by two individuals of the same sex to wed; those individuals would simply not have had a valid \"marriage\" under Washington 19 No.",
"91615-2 law. See LAWS OF 1998, ch. 1, § 3. Former RCW 9.79.120, on the other hand, specified that cohabitation was \"a gross misdemeanor.\" Waggoner, 134 Wash. 2d at 754 n.4. Our reasoning in Waggoner turned on the presence of a criminal statute targeting the conduct at issue, which is absent here. We hold that there is no same-sex wedding exception to the WLAD's public accommodations provisions. C. The WLAD contains no mandate to balance religious rights against the rights of protected class members In her final statutory argument regarding the WLAD, Stutzman contends that the superior court erred by failing to balance her right to religious free exercise against Ingersoll's right to equal service. Stutzman argues that because the WLAD also protects patrons of public accommodations from discrimination based on \"creed,\" RCW 49.60.030(1), and because this court has recognized that the WLAD \"sets forth a nonexclusive list of rights,\" Marquis v. City ofSpokane, 130 Wash. 2d 97, 107, 922 P.2d 43 (1996), the statute actually grants conflicting rights. As a consequence, she argues, courts should conduct a balancing inquiry \"on a case-by- case basis,\" Reply Br.",
"of Appellants at 43. She cites Seattle Times Co. v. Ishikawa, 20 No. 91615-2 97 Wash. 2d 30, 37-39, 640 P.2d 716 (1982), for the rule that this court uses balancing tests to resolve claims of competing rights in other contexts. 8 But Stutzman cites no authority for her contention that the WLAD protects proprietors of public accommodations to the same extent as it protects their patrons, nor for her contention that a balancing test should be adopted for the WLAD. And, to the extent that Stutzman relies on Ishikawa, that case is inapposite: it dealt with two competing rights-the right to a fair trial and the right to open courts-both of which are constitutional, not statutory. 97 Wash. 2d at 37. When faced with a question of statutory interpretation, we \"'must not add words where the legislature has chosen not to include them.\"' Lake v. Woodcreek Homeowners Ass 'n, 169 Wash. 2d 516, 526, 243 P .3d 1283 (20 10) (quoting Rest.",
"Dev., Inc. v. Cananwill, Inc., 150 Wash. 2d 674, 682, 80 P.3d 598 (2003)). Here, the 8 Although Stutzman refers to the balancing test set forth in Ishikawa, that is not the test that she applies in her briefing. Instead, Stutzman articulates a three-part balancing inquiry that ( 1) prioritizes \"[ r]ights of express constitutional magnitude ... over other rights when they conflict,\" (2) evaluates whether infringement on the rights of the opposing party are narrowly tailored to protect the rights of the claimant, and (3) weighs the benefits and burdens on each party. Br. of Appellants at 23-24. In conducting this inquiry, Stutzman concludes that her rights \"should take precedence\" here because they are of constitutional magnitude, rather than derived from police power as are Ingersoll's; the exception for weddings only (as opposed to refusal to serve the gay community for any purpose) is narrowly tailored to protect her religious rights; and she is more significantly burdened in that she is forced to choose between losing business or violating her religious beliefs, whereas \"Mr. Ingersoll and Mr. Freed are able to obtain custom floral designs for their same-sex wedding from nearby florists.\"",
"Id. 21 No. 91615-2 legislature has provided no indication in the text of the WLAD that it intended to import a fact-specific, case-by-case, constitutional balancing test into the statute. Moreover, the plain terms of the WLAD's public accommodations provision-the statute at issue here-protect patrons, not business owners. In other regulatory contexts, this court and the United States Supreme Court have held that individuals who engage in commerce necessarily accept some limitations on their conduct as a result.",
"See United States v. Lee, 455 U.S. 252, 261, 102 S. Ct. 1051, 71 L. Ed. 2d 127 (1982) (Stevens, J., concurring in judgment) (declining to extend Social Security exemption to Amish employers on religious grounds because \"[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity\"); Backlund v. Bd. ofComm 'rs ofKing County Hasp. Dist.",
"No.2, 106 Wash. 2d 632, 648, 724 P.2d 981 (1986) (rejecting religious grounds as valid basis for physician to decline liability insurance because \"[t]hose who enter into a profession as a matter of choice, necessarily face regulation as to their own conduct\"); In re Marriage of Didier, 134 Wash. App. 490, 499, 140 P.3d 607 (2006). Because it is inconsistent with the WLAD' s plain terms and unsupported by any precedent, we decline to adopt Stutzman's proposed balancing test. In sum, 22 No. 91615-2 Stutzman's refusal to provide custom floral arrangements for a same-sex wedding violated the WLAD's prohibition on discrimination in public accommodations. 9 II. Stutzman Fails To Show That the WLAD, as Applied in This Case, Violates Her State or Federal Constitutional Right to Free Speech As noted above, Stutzman raises five constitutional challenges to the WLAD as applied to her. She is correct that if the State statute violated a constitutional right, the constitutional right would certainly prevail. U.S. CONST. art.",
"VI, cl. 2 (federal constitutional supremacy); Davis v. Cox, 183 Wash. 2d 269, 294-95, 351 P.3d 862 (2015) (state constitutional provision prevails over state statute to the contrary). We therefore analyze each of Stutzman's constitutional defenses carefully. The first of these defenses is a free speech challenge: Stutzman contends that her floral arrangements are artistic expressions protected by the state and federal constitutions and that the WLAD impermissibly compels her to speak in favor of same-sex marnage. A. As applied to Stutzman in this case, the WLAD does not violate First Amendment speech protections \"Free speech is revered as the 'Constitution's most majestic guarantee,' central to the preservation of all other rights.\" Pub. Disclosure Comm 'n v. 119 Vote 9 To the extent Stutzman argues that her religious free exercise rights supersede Ingersoll's and Freed's statutory protections, we address that argument in the constitutional analyses below. 23 No.",
"91615-2 No! Comm., 135 Wash. 2d 618, 624, 957 P.2d 691 (1998) (plurality opinion) (quoting Nelson v. McClatchy Newspapers, Inc., 131 Wash. 2d 523, 536,936 P.2d 1123 (1997)). \"The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves.\" Knox v. Serv. Emps. Int'l Union, LocallOOO, _U.S._, 132 S. Ct. 2277, 2288, 183 L. Ed. 2d 281 (2012). Indeed, the First Amendment protects even hate speech, provided it is not \"fighting words\" or a \"'true threat.\"' Virginia v. Black, 538 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed.",
"2d 535 (2003) (quoting Watts v. United States, 394 U.S. 705, 708, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969) (per curiam)). Stutzman argues that the WLAD, as applied to her in this case, violates First Amendment protections against \"compelled speech\" because it forces her to endorse same-sex marriage. Br. of Appellants at 24-31. To succeed in this argument, she must first demonstrate that the conduct at issue here-her commercial sale of floral wedding arrangements-amounts to \"expression\" protected by the First Amendment. Clarkv. Cmty.for Creative Non-Violence, 468 U.S. 288,293 n.5, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984) (\"[I]t is the obligation ofthe person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies.",
"To hold otherwise would be to create a rule that all conduct is presumptively expressive.\") 24 No. 91615-2 She fails to meet this burden. The First Amendment's plain terms protect \"speech,\" not conduct. U.S. CONST. amend. I (\"Congress shall make no law ... abridging the freedom of speech.\"). But the line between speech and conduct in this context is not always clear. Stutzman contends that her floral arrangements are \"speech\" for purposes of First Amendment protections because they involve her artistic decisions. Br. of Appellants at 24. Relying on the dictionary definition of \"art,\" as well as expert testimony regarding her creativity and expressive style, she argues for a broad reading of protected speech that encompasses her \"unique expression,\" crafted in \"petal, leaf, and loam.\" !d.",
"at 25-26. Ingersoll and the State counter that Stutzman's arrangements are simply one facet of conduct-selling goods and services for weddings in the commercial marketplace-that does not implicate First Amendment protections at all. We agree that the regulated activity at issue in this case-Stutzman's sale of wedding floral arrangements-is not \"speech\" in a literal sense and is thus properly characterized as conduct. But that does not end our inquiry. The Supreme Court has protected conduct as speech if two conditions are met: \"[(1)] [a]n intent to convey a particularized message was present, and [(2)] in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.\" Spence v. Washington, 418 U.S. 405,410-11,94 S. Ct. 2727, 25 No. 91615-2 41 L. Ed. 2d 842 (1974) (per curiam).",
"Recent cases have characterized this as an inquiry into whether the conduct at issue was \"inherently expressive.\" Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. (FAIR), 547 U.S. 47, 64, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006). Stutzman's floral arrangements do not meet this definition. Certainly, she argues that she intends to communicate a message through her floral arrangements. But the major contest is over whether Stutzman's intended communications actually communicated something to the public at large-whether her conduct was \"inherently expressive.\" Spence, 418 U.S. at 410-11; FAIR, 547 U.S. at 64. And her actions in creating floral arrangements for wedding ceremonies do not satisfy this standard. The leading case on the \"inherently expressive\" standard is FAIR. The plaintiffs in FAIR-an association of law schools and faculty members-challenged the constitutionality of a law that required higher education institutions to provide military recruiters on campus with access to facilities and students that was at least equivalent to that of the most favorably treated nonmilitary recruiter. 547 U.S. at 52, 55. The FAIR Court ruled that the law schools' conduct in denying military recruiters most-favorable-recruiter access to students was not protected by the First Amendment because it was not \"inherently expressive.\" Id.",
"at 66. It explained that 26 No. 91615-2 additional speech would be required for an outside observer to understand that the schools' reason for denying military recruiters favorable access was to protest the military's \"Don't Ask, Don't Tell\" policy. Id. Stutzman's refusal is analogous. The decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding.",
"As Stutzman acknowledged at deposition, providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism. Stutzman also testified that she has previously declined wedding business on \"[m]ajor holidays, when we don't have the staff or if they want particular flowers that we can't get in the time frame they need.\" CP at 120. Accordingly, an outside observer may be left to wonder whether a wedding was declined for one of at least three reasons: a religious objection, insufficient staff, or insufficient stock. Stutzman argues that FAIR is inapposite and that we should instead apply Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995).",
"Hurley held that a state antidiscrimination law could not be applied so as to require a private parade to include marchers displaying a gay pride message. Id. at 568. Stutzman claims Hurley recognizes her First Amendment right \"to exclude a message [she] did not 27 No. 91615-2 like from the communication [she] chose to make.\" Reply Br. of Appellants at 11 (citing Hurley, 515 U.S. at 574). 10 Hurley is similar to this case m one respect: it involved a public accommodations law like the WLAD.II But the Massachusetts trial court had ruled IO Stutzman relies on Redgrave v. Boston Symphony Orchestra, 855 F.2d 888 (1st Cir. 1988), in which the Boston Symphony (BSO) refused to perform with Vanessa Red grave in light of her support of the Palestine Liberation Organization. Redgrave sued the BSO for breach of contract and consequential damages in federal court. Redgrave v. Boston Symphony Orchestra, Inc., 602 F. Supp.",
"1189 (D. Mass. 1985), affirmingjudgment in part, vacated in part, 855 F.2d 888 (1st Cir. 1988). The First Amendment issue in that case arose from the district court's concern that Red grave's novel theory of consequential damages was sufficiently related to defamation cases so as to implicate First Amendment concerns. !d. at 1201. However, as the attorney general here notes, the First Circuit resolved that case on statutory interpretation of the Massachusetts Civil Rights Act, MASS. GEN. LAWS, ch. 12, §§ 11H~11J, not on First Amendment grounds. Att'y Gen.'s Resp. Br.",
"at 26. In fact, the court ultimately chose to \"decline to reach the federal constitutional issues,\" given the complex interaction between First Amendment doctrine and state law, and saw \"no need to discuss the existence or content of a First Amendment right not to perform an artistic endeavor.\" 855 F.2d at 911. Accordingly, Stutzman's references are, at best, out~of~circuit dicta. II Stutzman cites both Hurley and Boy Scouts of America v. Dale, 530 U.S. 640, 657, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000), as examples of cases in which the Supreme Court vindicated First Amendment rights over state antidiscrimination public accommodations laws. In fact, both cases involved state courts applying public accommodations laws in unusually expansive ways, such that an individual, private, expressive association of people fell under the law.",
"Dale, 530 U.S. at 657 (New Jersey Court \"went a step further\" from an already \"extremely broad\" public accommodations law in applying it \"to a private entity without even attempting to tie the term 'place' to a physical location\"); Hurley, 515 U.S. at 572 (noting that Massachusetts trial court applied a public accommodations law \"in a peculiar way\" to encompass a privately sponsored parade). This case is distinguishable because Arlene's Flowers is a paradigmatic public accommodation. 28 No. 91615-2 that the parade itself was a place of public accommodation under state antidiscrimination law-a ruling that the Supreme Court called \"peculiar.\" 515 U.S. at 561-62, 573. The Court noted that the parade's \"inherent expressiveness\" distinguished it from the places traditionally subject to public accommodations laws-places that provide \"publicly available goods, privileges, and services.\"",
"Id. at 568-72. Hurley is therefore unavailing to Stutzman: her store is the kind of public accommodation that has traditionally been subject to antidiscrimination laws. See Elane Photography, 309 P.3d at 68 (rejecting photographer's reliance on Hurley because state antidiscrimination law applies not to defendant's photographs but to \"its business decision not to offer its services to protected classes of people\"; concluding that \"[w]hile photography may be expressive, the operation of a photography business is not\"). 12 12 The Supreme Court has drawn this distinction between expressive conduct and commercial activity in the context of First Amendment freedom of association claims, and likewise rejected the notion that the First Amendment precludes enforcement of antidiscrimination public accommodations laws in that context as well. E.g., Dale, 530 U.S. at 657 (distinguishing between \"clearly commercial entities\" and \"membership organizations\" in cases involving the intersection between state public accommodations laws and First Amendment rights); Roberts v. US.",
"Jaycees, 468 U.S. 609, 627, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984) (finding that even private membership organizations may be regulated by public accommodations laws where such regulations will not impair its ability \"to disseminate its preferred views\" and holding that there was no such impairment where young men's social organization was required to accept women members). 29 No. 91615-2 United States Supreme Court decisions that accord free speech protections to conduct under the First Amendment have all dealt with conduct that is clearly expressive, in and of itself, without further explanation. See Hurley, 515 U.S. at 568 (parades); United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990) (burning the American flag); Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed.",
"2d 342 (1989) (burning the American flag); United States v. Grace, 461 U.S. 171, 103 S. Ct. 1702, 75 L. Ed. 2d 736 (1983) (distributing leaflets outside Supreme Court building in violation of federal statute); Nat'! Socialist Party ofAm. v. Vill. ofSkokie, 432 U.S. 43, 43,97 S. Ct. 2205, 53 L. Ed. 2d 96 (1977) (per curiam) (\"[m]arching, walking, or parading\" while wearing Nazi uniforms); Smith v. Goguen, 415 U.S. 566, 588, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974) (White, J., concurring in judgment) (treating flag \"'contemptuously\"' by wearing a small American flag sewn into the seat of one's pants); Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977) (state motto on license plates); Spence, 418 U.S. 405 (displaying American flag upside down on private property with peace sign superimposed on it to express feelings about Cambodian invasion and Kent State University shootings); Cohen v. California, 403 U.S. 15, 26, 91 S. Ct. 1780, 29 L. Ed.",
"2d 284 (1971) (wearing jacket emblazoned with the words \"'F--k the Draft\"'); Schacht v. United States, 398 U.S. 58, 90 S. Ct. 1555, 26 L. Ed. 2d 44 (1970) 30 No. 91615-2 (wearing army uniform in short play criticizing United States involvement in Vietnam, inasmuch as it does not tend to discredit the armed forces); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969) (wearing black armbands to protest Vietnam conflict); Brown v. Louisiana, 383 U.S. 131, 141-42,86 S. Ct. 719, 15 L. Ed. 2d 637 (1966) (sit-in to protest \"whites only\" area in public library during civil rights struggle); Cox v. Louisiana, 379 U.S. 536, 552, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965) (giving speech and leading group of protesters in song and prayer in opposition to segregation); Edwards v. South Carolina, 372 U.S. 229, 83 S. Ct. 680, 9 L. Ed. 2d 697 (1963) (peaceful march on sidewalk around State House grounds in protest of discrimination); W. Va. State Bd.",
"ofEduc. v. Barnette, 319 U.S. 624,63 S. Ct. 1178,87 L. Ed. 1628 (1943) (refusing to salute the American flag while saying pledge of allegiance); Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931) (peaceful display of red flag as a sign of opposition to organized government). Stutzman's conduct- whether it is characterized as creating floral arrangements, providing floral arrangement services for opposite-sex weddings, or denying those services for same- 31 No. 91615-2 sex weddings-.is not like the inherently expressive activities at issue in these cases. Instead, it is like the unprotected conduct in FAIR, 54 7 U.S. at 66. 13 Finally, Stutzman asserts that even if her case doesn't fall neatly within the contours of these prior holdings, we should nevertheless place her floral artistry within a new, narrow protection. The \"narrow\" exception she requests would apply to \"businesses, such as newspapers, publicists, speechwriters, photographers, and other artists, that create expression\" as opposed to gift items, raw products, or prearranged [items].\"",
"Reply Br. of Appellants at 45. In her case, she proposes that she would be willing to sell Mr. Ingersoll \"uncut flowers and premade 13 Stutzman and amici point to a handful of cases protecting various forms of art- and some of them do seem to provide surface support for their argument. See Br. of Appellants at 6-7; Mot. for Leave to File Br. & Br. for Cato lnst. as Amicus Curiae in Supp. of Appellants (Cato) at 7 (citing Wardv. Rock Against Racism, 491 U.S. 781,790-91, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989) (music without words); Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-58, 95 S. Ct. 1239, 43 L. Ed. 2d 448 (1975) (theater); Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1060 (9th Cir. 2010) (tattooing); Piarowski v. Ill. Cmty.",
"Coil. Dist. 515, 759 F.2d 625, 627-28 (7th Cir. 1985) (stained glass windows on display in an art gallery at a junior college)). But, on closer examination, those cases do not expand the definition of \"expressive conduct.\" For example, Piarowski held that stained glass windows were protected in the context of a college's demands that the artist move some of his pieces from a gallery to an alternate location on campus because they were objected to as \"sexually explicit and racially offensive.\" 759 F.2d at 632. And the Anderson court reached its finding that tattoos receive First Amendment protections by pointing out that they \"are generally composed of words, realistic or abstract images, symbols, or a combination of these, all of which are forms of pure expression that are entitled to full First Amendment protection.\" 621 F.3d at 1061. Stutzman's floral arrangements do not implicate any similar concerns. 32 No. 91615-2 arrangements.\" !d. at 46. But, as amicus Americans United for Separation of Church and State (Americans United) points out, Stutzman's rule would create a \"two-tiered system\" that carves out an enormous hole from public accommodations laws: under such a system, a \"dime-store lunch counter would be required to serve interracial couples but an upscale bistro could turn them away.\" Br. of Amicus Curiae Ams.",
"United in Supp. of Resp'ts at 13. Indeed, the New Mexico Supreme Court also grappled with this question, ultimately finding that \"[ c]ourts cannot be in the business of deciding which businesses are sufficiently artistic to warrant exemptions from antidiscrimination laws,\" and noting that this concern was hardly hypothetical in light of the proliferation of cases requesting exceptions for \"florists, bakeries, and other wedding vendors\" who refused to serve gay couples. Elane Photography, 309 P.3d at 71. Because Stutzman's sale of floral arrangements is not expressive conduct protected by the First Amendment, we affirm the trial court and hold that the WLAD does not violate free speech protections as applied to Stutzman in this case.",
"B. Stutzman does not argue that article I, section 5 of the Washington Constitution provides any greater protection than the First Amendment in this context; we therefore affirm the trial court's ruling that no article I, section 5 violation occurred in this case Stutzman asserts violations of both state and federal free speech constitutional provisions, though she does not distinguish between them. 33 No. 91615-2 As the Superior Court correctly points out, we interpret article I, section 5 independently from the First Amendment. Bradburn v. N. Cent. Reg'l Library Dist., 168 Wash. 2d 789, 800, 231 P.3d 166 (2010). In some cases, we have found article I, section 5 to be more protective than its federal counterpart, and in some cases, we have held the two to contain equivalent protections. ld.",
"In this case, however, Stutzman has not assigned error to the Superior Court's use of a First Amendment analysis rather than a separate state constitutional analysis. We therefore decline to reach the issue of whether article I, section 5 rights in this context are coextensive with First Amendment rights. III. As Applied in This Case, the WLAD Does Not Violate Stutzman's Right to Religious Free Exercise under the First Amendment to the ·united States Constitution In her second constitutional claim, Stutzman argues that the WLAD, as applied to her in this case, violated her First Amendment right to religious free exercise. We disagree. The free exercise clause of the First Amendment, which applies to the States through the Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed.",
"1213 (1940), provides that \"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.\" Laws that burden religion are subject to two different levels of scrutiny under the 34 No. 91615-2 free exercise clause. U.S. CaNST. amend I. Neutral, generally applicable laws burdening religion are subject to rational basis review, 14 while laws that discriminate against some or all religions (or regulate conduct because it is undertaken for religious reasons) are subject to strict scrutiny .15 Stutzman argues that the WLAD is subject to strict scrutiny under a First Amendment free exercise analysis because it is neither neutral nor generally applicable. She is incorrect. A law is not neutral, for purposes of a First Amendment free exercise challenge if\"the object of [the] law is to infringe upon or restrict practices because of their religious motivation.\" Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 113 S. Ct. 2217, 124 L. Ed.",
"2d 472 (1993) (emphasis added). Stutzman does not argue that our legislature passed the WLAD in order to target religious people or people whose religions dictate opposition to gay marriage. Instead, she argues that the WLAD is unfair because it grants exemptions for \"religious organizations\" 16-permitting these organizations to refuse marriage 14 Emp 't Div., Dep 't of Human Res. of Or. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). 15 Church of the Lukumi BabaluAye, Inc. v. City ofHialeah, 508 U.S. 520, 532, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993). 16 See RCW 26.04.010(6) (\"A religious organization shall be immune from any civil claim or cause of action, including a claim pursuant to chapter 49.60 RCW, based on its 35 No. 91615-2 services-but does not extend those same exemptions to her.",
"Br. of Appellants at 37. We disagree. The cases on which Stutzman relies all address laws that single out for onerous regulation either religious conduct in general or conduct linked to a particular religion, while exempting secular conduct or conduct associated with other, nontargeted religions. E.g., Lukumi Babalu Aye, 508 U.S. at 532-42 (law was not neutral where legislative history, including enactment of numerous exemptions for members of other religions, evidenced a clear intent to target practitioners of Santeria faith). They recognize that the \"[t]he Free Exercise Clause forbids any regulation of beliefs as such,\" and that this unconstitutional regulation may sometimes be accomplished through a law that appears facially neutral.",
"Blackhawk v. Pennsylvania, 381 F.3d 202, 208-09 (3d Cir. 2004). But blanket exemptions for religious organizations do not evidence an intent to target religion. Instead, they indicate the opposite. Corp. ofPresiding Bishop of Church ofJesus Christ ofLatter- Day Saints v. Amos, 483 U.S. 327, 335-38, 107 S. Ct. 2862, 97 L. Ed. 2d 273 (1987) refusal to provide accommodations, facilities, advantages, privileges, services, or goods related to the solemnization or celebration of a marriage.\"). \"Religious organization\" is defined as including, \"but . . . not limited to, churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, and other entities whose principal purpose is the study, practice, or advancement ofreligion.\" RCW 26.04.010(7)(b).",
"36 No. 91615-2 (exemption in Civil Rights Act for religious organizations does not violate the establishment clause because it serves a secular purpose-to minimize governmental interference with religion-and neither advances nor inhibits religion); Elane Photography, 309 P.3d at 74-75 (\"Exemptions for religious organizations are common in a wide variety of laws, and they reflect the attempts of the Legislature to respect free exercise rights by reducing legal burdens on religion.\"). Stutzman also argues that the WLAD is not \"generally applicable\" because it does not apply to businesses that employ fewer than eight persons, employees working for a close family member or in domestic service, people renting out certain multifamily dwellings, and distinctly private organizations. Again, the authority Stutzman cites is inapposite. That authority stands for two principles, neither of which is implicated here.",
"First, a law may fail the \"general applicability\" test, and thus trigger strict scrutiny, if it adopts a patchwork of specific exemptions that conspicuously omits certain religiously motivated conduct. As with nonneutrallaws, such an omission is evidence that the government has deliberately targeted religious conduct for onerous regulation, or at the very least devalued religion as a ground for exemption. Lukumi Babalu Aye, 508 U.S. at 544-46 (holding that ordinance was not generally applicable because it \"pursues the city's governmental interests only against conduct motivated 37 No. 91615-2 by religious belief' (emphasis added)); Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 365-66 (3d Cir. 1999) (police department policy prohibiting officers from wearing beards triggered strict scrutiny because it allowed individual exemptions for medical but not religious reasons; because the medical exemption undermined the policy's purpose-to create uniformity of appearance among its officers-just as much as a religious exemption would, the disparity evidenced the department's preference for medical (secular) objections over religious ones). Second, a law is not \"generally applicable\" if it permits individual exemptions but is then applied in a manner that is needlessly prejudicial to religion.",
"Lighthouse Inst.for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253,276 (3d. Cir. 2007) (\"What makes a system of individualized exemptions suspicious is the possibility that certain violations may be condoned when they occur for secular reasons but not when they occur for religious reasons. In Blackhawk, it was not the mere existence of an exemption procedure that gave us pause but rather the fact that the Commonwealth could not coherently explain what, other than the religious motivation of Blackhawk's conduct, justified the unavailability of an exemption.\" (citing Blackhawk, 381 F.3d at 211)). 38 No. 91615-2 In this case, Stutzman seeks an exemption that would allow her to refuse certain customer services to members of a WLAD-protected class on religious grounds.",
"Under a First Amendment free exercise analysis, the WLAD would trigger strict scrutiny if it permitted that sort of discrimination only for nonreligious reasons, and thus indicated the government's preference for secular discrimination. But the WLAD does not do this. Three of the alleged \"exemptions\" Stutzman cites have nothing at all to do with the exemption she seeks (an exemption permitting discrimination in public accommodations). The exemption for \"[people] renting [out] certain multifamily dwellings,\" Br.",
"of Appellants at 38 (citing RCW 49.60.040(5))-is not really an exemption from the WLAD at all. RCW 49.60.040(5) defines a \"'[c]overed multifamily dwelling'\" to exclude all buildings with fewer than four units and certain buildings with no elevators. In conjunction with RCW 49.60.222(2)(c), this provision requires that \"covered multifamily dwellings\" be designed and constructed in compliance with state and federal disability access laws. This is not a license for certain landlords to discriminate. With respect to public accommodations, the same is true of the WLAD' s \"exemptions\" for individuals employed in domestic service or by family members and for \"employers\" with fewer than eight employees. See Br. of Appellants at 38 (citing RCW 49.60.040(10), (11)). These exemptions protect 39 No. 91615-2 employers from WLAD liability as employers-that is, liability to their employees-in the context of family relationships, domestic service, and very small businesses; they have nothing to do with Stutzman's liability as the proprietor of a public accommodation. Compare RCW 49.60.180 (listing prohibited \"[u]nfair practices of employers,\" all of which discriminate against employees or potential employees-not customers), with RCW 49.60.215 (listing prohibited \"[u]nfair practices of places of public resort, accommodation, assemblage, amusement\"; completely omitting any reference to \"employers\"). Thus, these exemptions are distinguishable from the exemptions at issue in Lukumi Babalu Aye, Blackhawk, or Fraternal Order of Police because none is an exemption that Stutzman would actually like to invoke.",
"And the other \"exemption\" Stutzman identifies-for distinctly private organizations, Br. of Appellants at 38 (citing RCW 49.60.040(2))-does not undermine the purposes of the WLAD' s public accommodations provision: to prevent discrimination in public accommodations. Thus, it does not trigger strict scrutiny under a First Amendment free exercise analysis, either. Fraternal Order of Police, 170 F.3d at 366 (contrasting exemptions that undermine a law's purpose- and thus trigger strict scrutiny-with exemptions for \"activities that [the government] does not have an interest in preventing\"; holding that police 40 No. 91615-2 department's exemption permitting undercover officers to wear beards did not trigger strict scrutiny because the governmental interest served by the shaving requirement-making officers readily recognizable as officers-did not apply to undercover officers). For these reasons, we reject Stutzman's claim that the WLAD, as applied to her, triggers strict scrutiny under the free exercise clause of the First Amendment. The WLAD is a neutral, generally applicable law subject to rational basis review.",
"Emp 't Div., Dep 't ofHuman Res. of Or. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). And the WLAD clearly meets that standard: it is rationally related to the government's legitimate interest in ensuring equal access to public accommodations. See Lighthouse, 510 F.3d at 277 (to withstand free exercise challenge, neutral, generally applicable law \"must be reasonable and not arbitrary and it must bear' a rational relationship to a [permissible] state objective\"' (alteration in original) (quoting Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974))). 41 No. 91615-2 IV. As Applied in This Case, the WLAD Did Not Violate Stutzman's Right to Religious Free Exercise under Article I, Section 11 of the Washington Constitution A.",
"This court has applied strict judicial scrutiny to certain article I, section 11 claims Stutzman also raises a state constitutional challenge to the WLAD as applied to her religiously motivated conduct in this case. Article I, section 11 of the Washington Constitution provides, in relevant part: Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state. Obviously, this language differs from the language of the First Amendment's free exercise clause. In the past, however, we interpreted article I, section 11 to provide the same protection as the First Amendment's free exercise clause. See First Covenant Church ofSeattle v. City ofSeattle, 114 Wn.2d 392,402,787 P.2d 1352 (1990) (First Covenant I), vacated and remanded, 499 U.S. 901, 111 S. Ct. 1097, 113 L. Ed. 2d 208 ( 1991 ). Thus, for many years this court relied on First Amendment free exercise case law in article I, section 11 challenges and applied strict scrutiny to laws burdening religion.",
"Id. (citing Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 42 No. 91615-2 L. Ed. 2d 965 (1963); Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972); Hobbie v. Unemployment Appeals Comm 'n, 480 U.S. 136, 107 S. Ct. 1046, 94 L. Ed. 2d 190 (1987) (law burdening religion must serve \"compelling state interest\" and \"constitute[] the least restrictive means to achieve the government's objective\")). 17 In 1990, however, things changed. That was the year that the United States Supreme Court adopted rational basis review for claims that neutral, generally applicable laws (like the WLAD) incidentally burden religion, in Smith, 494 U.S. at 878-90. Smith definitively repudiated strict scrutiny for neutral, generally applicable laws prohibiting \"socially harmful conduct.\"",
"I d. at 884-85. It reasoned that applying heightened scrutiny-which requires a balancing of governmental against personal interests-would pose two problems. Id. First, it would vitiate the state's ability to regulate, allowing every individual \"'to become a law unto himself.\"' Id. at 885 17 Some scholarship distinguishes between the ''compelling interest\" test and \"strict scrutiny.\" E.g., Stephen A. Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny, 48 AM. J. LEGAL HIST. 355, 359-60 (2008) (describing the \"compelling interest\" standard as one of three barriers that legislation must overcome under strict scrutiny). But this court has always treated them as synonymous in religious free exercise cases. E.g., Backlund, 106 Wash. 2d at 641 (\"Since [the plaintiffs] beliefs are protected by the free exercise clause of the First Amendment, the burden of proof shifts to the Board to prove that (1) a compelling governmental interest justifies the regulation in question and (2) the regulation is the least restrictive imposition on the practice of his belief to satisfy that interest.\" (citing United States v. Lee, 455 U.S. 252, 257, 102 S. Ct. 1051, 71 L. Ed. 2d 127 (1982); State v. Meacham, 93 Wash. 2d 735,740,612 P.2d 795 (1980))). 43 No. 91615-2 (quoting Reynolds v. United States, 98 U.S. (8 Otto) 145, 167, 25 L. Ed.",
"2d 244 (1878) ). Second, it would entangle civil courts in religion by requiring them to evaluate the significance of a particular practice to a faith. Smith, 494 U.S. at 887 (\"[r]epeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim\"). The Smith Court reasoned that such a balancing test would be incompatible with the religious pluralism that is fundamental to our national identity. 494 U.S. at 888. Smith's holding is limited in two ways.",
"First, it left in place prior First Amendment case law applying the \"compelling interest\" balancing test where the statute in question \"lent itself to individualized . . . assessment\"-e.g., an unemployment benefits statute under which an administrative court determines, on a case-by-case basis, whether a person was fired for good cause. Id. at 884. In such cases, the Court explained that \"the State [already] has in place a system of individual exemptions\"-thus, the challenged law is not \"generally applicable\" for purposes of First Amendment free exercise analysis. Id. Where an individual requests a religious exemption from such a law, the government must have a compelling reason for denying it. Id. Second, the Smith Court distinguished cases 44 No. 91615-2 involving \"hybrid\" claims-e.g., challenges to laws that burdened both religious freedom and another right such as free speech.",
"!d. at 881 (collecting cases). We revisited our article I, section 11 test following Smith in First Covenant Church of Seattle v. City of Seattle, 120 Wash. 2d 203, 840 P.2d 174 (1992) (First Covenant II). In that case, the plaintiff church argued that its designation as a historical landmark (subject to \"controls\" limiting alterations to its building) violated both First Amendment and article I, section 11 protections. !d. at 208-09. In First Covenant I, we applied strict scrutiny to both constitutional challenges and held that the zoning law was unconstitutional. 114 Wash. 2d at 401-02, 410. On remand from the United States Supreme Court following Smith, we addressed the state and federal free exercise claims again. Regarding the First Amendment claim, the First Covenant II court held that the challenged statute fell within both of the exceptions to rational basis review recognized in Smith: it created a system of \"individualized assessments\" and it raised \"hybrid\" constitutional concerns (by restricting speech as well as religious free exercise).",
"120 Wash. 2d at 214-17. The court therefore held that the historical landmark statute was subject to strict scrutiny under the First Amendment. !d. at 217-18. But after determining that the statute failed strict scrutiny as applied to the plaintiff church-because a city's purely aesthetic or cultural interest in preserving 45 No. 91615-2 historical landmarks is not compelling-the First Covenant II court went on to separately analyze the church's article I, section 11 claim. Id. at 223 (\"The possible loss of significant architectural elements is a price we must accept to guarantee the paramount right of religious freedom ... [and] [a]lthough we might ... base our decision solely on federal grounds, we decline to do so.\"). It performed a Gunwall 18 analysis and concluded that article I, section 11 \"extends broader protection than the [F]irst [A]mendment ... and precludes the City from imposing [the disputed] Landmarks Preservation Ordinance on First Covenant's church.\"",
"Id. at 229-30. Since that time, our court has addressed four article I, section 11 claims-all by churches challenging land use regulations 19-and has subjected the challenged law to strict scrutiny in each case. Thus, both before and after Smith and First Covenant II, we have applied the same four-prong analysis in an article I, section 11 18 State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 808 (1986). A Gunwall analysis determines whether a state constitutional provision is more protective than its federal counterpart by considering six nonexclusive factors: ( 1) the text of the state constitutional provision at issue, (2) significant differences between the text of parallel state and federal constitutional provisions, (3) state constitutional and common law history, (4) state law predating the state constitution, (5) structural differences between the state and federal constitutions, and (6) matters of particular state or local concern. !d. at 61-62. 19 City of Woodinville v. Northshore United Church ofChrist, 166 Wash. 2d 633, 644- 45, 211 P.3d 406 (2009); Open Door Baptist Church v. Clark County, 140 Wash. 2d 143, 156-60,995 P.2d 33 (2000); Munns v. Martin, 131 Wash. 2d 192, 195,930 P.2d 318 (1997); First United Methodist Church of Seattle v. Hr 'g Exam 'r for Seattle Landmarks Pres. Bd., 129 Wash. 2d 238, 249-50, 252-53, 916 P.2d 374 (1996). 46 No.",
"91615-2 challenge: where a party has (1) a sincere religious belief and (2) the exercise of that belief is substantially burdened by the challenged law, the law is enforceable against that party only if it (3) serves a compelling government interest and (4) is the least restrictive means of achieving that interest. City of Woodinville v. Northshore United Church of Christ, 166 Wash. 2d 633, 642, 211 P.3d 406 (2009); Backlund, 106 Wash. 2d at 641. And we have specifically held--in the context of a church's challenge to a zoning law-that article I, section 11 is more protective of religious free exercise than the First Amendment is.",
"E.g., First Covenant II, 120 Wash. 2d at 224 (applying strict scrutiny to zoning ordinance as a matter of state constitutional law because \"[ o ]ur state constitutional and common law history support a broader reading of article [I], section 11, than of the First Amendment\"). 20 20 The attorney general correctly notes that this court has never held that a corporate defendant such as Arlene's Flowers has a \"conscience\" or \"sentiment\" subject to article I, section 11 protections. See Att'y Gen. Resp. Br. at 31 (\"Indeed the plain language of article I, section 11 guarantees its protections to 'every individual,' maldng no mention of protection for businesses. \"); Att'y Gen.'s Ans. to Brs. of Amici Curiae at 19 (\"Neither Defendants nor their amici point to any Washington authority to support the notion that for-profit corporations are protected by article I, section 11.\").",
"But Stutzman argues only that she may assert her own free exercise rights on behalf of her corporation. Br. of Appellants at 32 n.24 ('protecting the free-exercise rights of [closely held] corporations . . . protects the religious liberty of the humans who own and control those companies\"' (emphasis added) (quoting Burwell v. Hobby Lobby Stores, Inc.,_ U.S. _, 134 S. Ct. 2751, 2768, 189 L. Ed. 2d 675 (2014))). Thus, we address only Stutzman's individual claim that her article I, section 11 rights have been violated. We do not address whether Arlene's Flowers (the corporation) has any such rights. 47 No. 91615-2 The parties dispute the significance of these post-Smith holdings to this case. Ingersoll and the attorney general argue that they are limited to zoning laws, as applied to churches, and thus make no difference to the outcome under our long- standing four-prong test. They maintain that a neutral health and safety regulation like the WLAD creates no substantial burden on free exercise-and thus does not trigger strict scrutiny-when it operates in the commercial marketplace. Stutzman contends that under First Covenant II and its progeny, \"strict scrutiny applies even if the regulation 'indirectly burdens the exercise of religion.'\" Br.",
"of Appellants at 33 (quoting First Covenant II, 120 Wash. 2d at 226). We decline to resolve that dispute here because we conclude that Stutzman's free exercise claim fails even under the test she advances. Even if article I, section 11 provides Stutzman with the strongest possible protections, subjecting the WLAD to strict scrutiny in this case, her state constitutional challenge must still fail. B. The WLAD survives strict scrutiny In the decades before First Covenant II, this court upheld numerous health and safety regulations under strict scrutiny-the test that we then assumed was required under the First Amendment. E.g., Backlund, 106 Wash. 2d at 641 (requirement that physician purchase professional liability insurance did not violate First Amendment; State had a compelling interest in licensure requirement and the 48 No. 91615-2 requirement was \"the least restrictive imposition on the practice of [the plaintiff's] belief to satisfy that interest\"); State v. Meacham, 93 Wash. 2d 735, 740-41, 612 P.2d 795 ( 1980) (court-ordered blood test for putative fathers did not violate First Amendment; State had a compelling interest in securing child support and that interest could not \"be achieved by measures less drastic\"); State ex rel.",
"Holcomb v. Armstrong, 39 Wash. 2d 860, 861, 863-64, 239 P.2d 545 (1952) (neither First Amendment nor prior version of article I, section 11 barred mandatory tuberculosis testing as condition of admission to University of Washington; \"the public interest [served] is the health of all of the students and employees of the university[;] .. . [t]he danger to this interest is clear and present, grave and immediate [and] .. . [i]nfringement of appellant's rights is a necessary consequence of a practical attempt to avoid the danger\"); see also State v. Clifford, 57 Wash. App.",
"127, 132-34, 787 P.2d 571 (1990) (law mandating that drivers be licensed does not violate First Amendment; \"[t]here is no less restrictive means available to satisfy the State's compelling interest in regulating the driving of motor vehicles\"). Like all of the laws at issue in those cases, the WLAD's public accommodations provision is a neutral health and safety regulation. Under our long-standing precedent, such laws satisfy strict scrutiny in an article I, section 11 challenge. 49 No. 91615-2 To be sure, none of our previous article I, section 11 cases addressed an antidiscrimination law.",
"But numerous other courts have heard religious free exercise challenges to such laws and upheld them under strict scrutiny. E.g., Swanner v. Anchorage Equal Rights Comm 'n, 874 P.2d 274, 281-83 (Alaska 1994) (in rental housing context, state antidiscrimination law passed strict scrutiny-meaning that defendants were not entitled to a religious exemption-because \"[t]he government views acts of discrimination as independent social evils even if the prospective tenants ultimately find housing\"; moreover, \"[ v]oluntary commercial activity does not receive the same status accorded to directly religious activity\"); State v. Sports & Health Club, Inc., 370 N.W.2d 844, 852-54 (Minn. 1985) (in employment context, state antidiscrimination law passed strict scrutiny in religious free exercise challenge because \"[t]he state's overriding compelling interest of eliminating discrimination based upon sex, race, marital status, or religion could be substantially frustrated if employers, professing as deep and sincere religious beliefs as those held by appellants, could discriminate against the protected classes\"); N. Coast Women's Care Med.",
"Grp., Inc. v. Superior Court, 44 Cal. 4th 1145, 1158-59, 81 Cal. Rptr. 3d 708, 189 P.3d 959 (2008) (assuming that strict scrutiny applied as a matter of state constitutional law, it would not invalidate statute barring discrimination on the basis of sexual orientation as applied to fertility clinic with religious objections to helping 50 No. 91615-2 gay patients conceive: \"[t]he Act furthers California's compelling interest in ensuring full and equal access to medical treatment irrespective of sexual orientation, and there are no less restrictive means for the state to achieve that goal\"); Gay Rights Coal. ofGeorgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 31-39 (D.C. Ct. App. 1987) (District of Columbia's Human Rights Act, former D.C. CoDE§ 1- 2520 (1981), recodified as D.C. CODE§ 2-1402.41, as applied to prohibit defendant university from denying equal recognition and support to gay student groups, survived strict scrutiny in university's pre-Smith free exercise challenge: \"[t]o tailor the Human Rights Act to require less of the University than equal access to its 'facilities and services,' without regard to sexual orientation, would be to defeat its compelling purpose[:] [t ]he District of Columbia's overriding interest in eradicating sexual orientation discrimination, if it is ever to be converted from aspiration to reality, requires that Georgetown equally distribute tangible benefits to the student groups\"); see also Bob Jones Univ., 461 U.S. at 602-04 (federal government's denial of tax exempt status to schools that enforced religiously motivated racially discriminatory policies survived strict scrutiny: \"the Government has a fundamental, overriding interest in eradicating racial discrimination in education ... [and] that .. .",
"interest substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs\"). Indeed, we are not aware of any 51 No. 91615-2 case invalidating an antidiscrimination law under a free exercise strict scrutiny analysis. Nevertheless, Stutzman argues that strict scrutiny is not satisfied in this case. She reasons that since other florists were willing to serve Ingersoll, no real harm will come from her refusal. And she maintains that the government therefore can't have any compelling interest in applying the WLAD to her shop. In other words, Stutzman contends that there is no reason to enforce the WLAD when, as she puts it, \"[N]o access problem exists.\" Br. of Appellants at 46. We emphatically reject this argument. We agree with Ingersoll and Freed that \"[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.\"",
"Br. of Resp'ts Ingersoll and Freed at 32. As every other court to address the question has concluded, public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination,2 1 that purpose would be fatally undermined. 21 Stutzman argues that discrimination cannot be \"invidious\"-and thus subject to governmental prohibition-if it is based on religious beliefs. Br. of Appellants at 40-43. But she cites no relevant legal authority for this novel theory. She also argues that the government has no compelling interest in forcing her to speak or associate with Ingersoll or any other customer. But, as explained elsewhere in this opinion, the WLAD does not implicate Stutzman's rights of speech or association. 52 No.",
"91615-2 In conclusion, we assume without deciding that strict scrutiny applies to the WLAD in this article I, section 11 challenge, and we hold that the law satisfies that standard. V. As Applied in This Case, the WLAD Does Not Violate Stutzman's Right to Free Association under the First Amendment to the United States Constitution Stutzman argues that the WLAD, as applied by the trial court in her case, violates her First Amendment right to freedom of association.",
"But to support that argument, she relies exclusively on cases addressing membership in private clubs: Boy Scouts of America v. Dale, 530 U.S. 640, 653, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000); Hurley, 515 U.S. at 574; and Roberts, 468 U.S. at 618. 22 These cases expressly distinguish a business' customer service (subject to generally applicable antidiscrimination laws) from expressive conduct (protected from such laws by the First Amendment). Dale, 530 U.S. at 648, 656-57 (\"To determine whether a group is protected by the First Amendment's expressive associational right, we must determine whether the group engages m 'expressive association'\"· ' antidiscrimination law violated the Boy Scouts' First Amendment freedom of association in part because the Boy Scouts was a membership organization instead 22 Stutzman also cites one case addressing speech: United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 818, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000). Reply Br. of Appellants at 28.",
"This opinion addresses Stutzman's free expression claim elsewhere. 53 No. 91615-2 of a \"clearly commercial entit[y]. \"); Hurley, 515 U.S. at 572, 571 (state antidiscrimination law at issue traditionally applied to \"the provision of publicly available goods, privileges, and services\" by, \"[a]t common law, innkeepers, smiths, and others who 'made profession of a public employment\"'; but it would be \"peculiar\" to extend that law beyond the customer service context so that it applied to the inherently expressive conduct of marching in a parade). In fact, the United States Supreme Court has even held that states may enforce antidiscrimination laws against certain private organizations, defined by particular goals and ideologies, if the enforcement will not impair the group's ability to pursue those goals and espouse those ideologies. Roberts, 468 U.S. at 628 (even though First Amendment protects private groups, those groups are subject to antidiscrimination laws to the extent that enforcement \"will [not] change the content or impact of the organization's speech\").",
"But the Supreme Court has never held that a commercial enterprise, open to the general public, is an '\"expressive association'\" for purposes ofFirst Amendment protections, Dale, 530 U.S. at 648. We therefore reject Stutzman's free association claim. 54 No. 91615-2 VI. As Applied in This Case, the WLAD Does Not Violate Stutzman's Constitutional Protections under the \"Hybrid Rights\" Doctrine Stutzman also argues that the WLAD, as applied to her in this case, triggers strict scrutiny because it implicates \"hybrid rights.\" Br. of Appellants at 40. As noted above, a law triggers strict scrutiny if it burdens both religious free exercise and another fundamental right such as speech or association.",
"First Covenant II, 120 Wash. 2d at 217-18 (\"[t]he less protective free exercise standard set forth in Smith ... does not apply because the case presents a 'hybrid situation': First Covenant's claim involves the free exercise clause in conjunction with free speech\" (citing Smith, 494 U.S. at 904 (O'Connor, J., concurring in judgment))). But Stutzman's claim fails for two reasons. First, the only fundamental right implicated in this case is the right to religious free exercise. Stutzman's rights to speech and association are not burdened. See supra Parts II, V. Second, even if the WLAD does trigger strict scrutiny in this case, it satisfies that standard. See supra Section IV.B. VII. The Trial Court Did Not Err by Imposing Personal Liability on Stutzman Instead of Solely on Her Corporation, Arlene's Flowers Inc. In addition to finding that Stutzman violated the WLAD, the trial court also found that Stutzman violated the CPA. This is because the WLAD provides that an act of public accommodation discrimination is an \"unfair practice\" and a per se 55 No. 91615-2 violation ofthe CPA. RCW 49.60.030(3). 23 Stutzman concedes that if she violated the WLAD, then Arlene's Flowers is liable for a CPA violation.",
"But Stutzman argues that she cannot be personally liable for violating the CPA because (1) she kept her affairs separate from Arlene's Flowers' and (2) no Washington court has ever applied the \"responsible-corporate-officer doctrine\" outside the fraud context. Br. of Appellants at 49 (citing Grayson v. Nordic Constr. Co., 92 Wash. 2d 548, 552-53, 599 P.2d 1271 (1979); One Pac. Towers Homeowners' Ass 'n v. HAL Real Estate Invs., Inc., 108 Wash. App. 330, 347-48, 30 P.3d 504 (2001), aff'd in part and rev 'din part, 148 Wash. 2d 319, 61 PJd 1094 (2002)). The authority Stutzman cites does not support this argument. In Grayson, this court held that the defendant could be personally liable for his company's CPA violation even though there were no grounds for piercing the corporate veil.",
"92 Wash. 2d at 553-54. This directly contradicts Stutzman's theory that she cannot be personally liable under the CPA unless she commingled her finances with Arlene's 23 The trial court also found that Stutzman's actions violated the CPA-because they were an \"'unfair or deceptive act or practice . . . occurring in trade or commerce, and [impacting the] public interest'\"-even if she did not also violate the WLAD. CP at 2634- 37 (quoting State v. Kaiser, 161 Wash. App. 705, 719, 254 P.3d 850 (2011)). This ruling is questionable, but because we conclude that Stutzman did violate the WLAD, and because Stutzman did not assign error to this ruling in her opening brief, we do not address it. 56 No.",
"91615-2 Flowers'. And the other case, One Pac. Towers, 108 Wash. App. 330, does not address a CPA claim. On the other hand, there is long-standing precedent in Washington holding that individuals may be personally liable for a CPA violation if they \"participate[] in the wrongful conduct, or with knowledge approve[] of the conduct.\" State v. Ralph Williams' N. W. Chrysler Plymouth, Inc., 87 Wash. 2d 298, 322, 553 P.2d 423 ( 197 6). Liability for such participation or approval does not depend on piercing the corporate veil. ld. This is consistent with the CPA's plain language, which authorizes the attorney general to bring an action against \"against any person to restrain and prevent the doing of any act herein prohibited or declared to be unlawful,\" RCW 19.86.080(1) (emphasis added), and which defines \"person\" to include \"where applicable, natural persons,\" as well as corporate entities, RCW 19.86.010(1).",
"Such individual liability does not constitute an application of, or expansion of, the responsible corporate officer doctrine. That doctrine expands liability from a corporation to an individual officer who would not otherwise be liable \"where the officer stands 'in responsible relation to a public danger.'\" Dep't of Ecology v. Lundgren, 94 Wash. App. 236, 243, 971 P.2d 948 (1999) (quoting United States v. Dotterweich, 320 U.S. 277,281, 64 S. Ct. 134, 88 L. Ed. 48 (1943)). Here, the trial 57 No. 91615-2 court did not find Stutzman (the individual) vicariously or secondarily liable based on conduct of Arlene's Flowers (the corporation). It found her liable because of acts that she herself committed. CONCLUSION The State of Washington bars discrimination in public accommodations on the basis of sexual orientation.",
"Discrimination based on same-sex marriage constitutes discrimination on the basis of sexual orientation. We therefore hold that the conduct for which Stutzman was cited and fined in this case-refusing her commercially marketed wedding floral services to Ingersoll and Freed because theirs would be a same-sex wedding-constitutes sexual orientation discrimination under the WLAD. We also hold that the WLAD may be enforced against Stutzman because it does not infringe any constitutional protection.",
"As applied in this case, the WLAD does not compel speech or association. And assuming that it substantially burdens Stutzman's religious free exercise, the WLAD does not violate her right to religious free exercise under either the First Amendment or article I, section 11 because it is a neutral, generally applicable law that serves our state government's compelling interest in eradicating discrimination in public accommodations. We affirm the trial court's rulings. 58 No. 91615-2 WE CONCUR: 0~9 V~-· '7 59"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4126713/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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Exhibit 10.2 REGISTRATION RIGHTS AGREEMENT THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of June 24, 2011 (the “Effective Date”), among MEDL Mobile Holdings, Inc., a Nevada corporation (the “Company”), and each signatory hereto (each, an “Investor” and collectively, the “Investors”). R E C I T A L S WHEREAS, the Company and the Investors are parties to Subscription Agreements (the “Subscription Agreements”), dated as of the date hereof, as such may be amended and supplemented from time to time, pursuant to which the Company is issuing shares of Common Stock (the “Shares”) of the Company according to the terms set forth therein; WHEREAS, the Company desires to enter into an agreement granting the Investors certain “piggyback” registration rights in connection with their ownership of the Shares. NOW, THEREFORE, in consideration of the promises and mutual agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Certain Definitions. As used in this Agreement, the following terms shall have the following respective meanings:
“Business Day” means any day of the year, other than a Saturday, Sunday, or other day on which the Commission is required or authorized to close. “Commission” means the U. S. Securities and Exchange Commission or any other federal agency at the time administering the Securities Act. “Common Stock” means the common stock, par value $0.001 per share, of the Company and any and all shares of capital stock or other equity securities of: (i) the Company which are added to or exchanged or substituted for the Common Stock by reason of the declaration of any stock dividend or stock split, the issuance of any distribution or the reclassification, readjustment, recapitalization or other such modification of the capital structure of the Company; and (ii) any other corporation, now or hereafter organized under the laws of any state or other governmental authority, with which the Company is merged, which results from any consolidation or reorganization to which the Company is a party, or to which is sold all or substantially all of the shares or assets of the Company, if immediately after such merger, consolidation, reorganization or sale, the Company or the stockholders of the Company own equity securities having in the aggregate more than 50% of the total voting power of such other corporation.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder. “Family Member” means (a) with respect to any individual, such individual’s spouse, any descendants (whether natural or adopted), any trust all of the beneficial interests of which are
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owned by any of such individuals or by any of such individuals together with any organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, the estate of any such individual, and any corporation, association, partnership or limited liability company, all of the equity interests of which are owned by those above described individuals, trusts or organizations and (b) with respect to any trust, the owners of the beneficial interests of such trust. “Holder” means each Investor or any such Investor’s successors and Permitted Assignees who acquire rights in accordance with this Agreement with respect to any Registrable Securities directly or indirectly from an Investor or from any Permitted Assignee.
“Majority of the Holders” means at any time Holders representing a majority of the Registrable Securities. “Permitted Assignee” means (a) with respect to a partnership, its partners or former partners in accordance with their partnership interests, (b) with respect to a corporation, its shareholders in accordance with their interest in the corporation, (c) with respect to a limited liability company, its members or former members in accordance with their interest in the limited liability company, (d) with respect to an individual, any Family Member of such party or (e) an entity that is controlled by, controls, or is under common control with a transferor. “Piggyback Registration” means, in any registration of Common Stock referenced in Section 3(a) of this Agreement, the right of each Holder to include the Registrable Securities of such Holder in such registration. The terms “register,” “registered,” and “registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement. “Registrable Securities” means the Shares, but excluding (i) any Shares that have been publicly sold or are eligible be sold under the Securities Act pursuant to Rule 144 of the Securities Act without the requirement for the Company to be in compliance with the current public information required thereunder and without volume or manner-of-sale restrictions; (ii) any Shares sold by a person in a transaction pursuant to a registration statement filed under the Securities Act, or (iii) any Shares that are at the time subject to an effective registration statement under the Securities Act.
“Registration Statement” has the meaning ascribed to such term in Section 3(a) hereof.
“Rule 145” means Rule 145 promulgated by the Commission under the Securities Act, as such rule may be amended or supplemented from time to time, or any similar successor rule that may be promulgated by the Commission. “Rule 144” means Rule 144 promulgated by the Commission under the Securities Act, as such rule may be amended or supplemented from time to time, or any similar successor rule that may be promulgated by the Commission.
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“Rule 415” means Rule 415 promulgated by the Commission under the Securities Act, as such rule may be amended or supplemented from time to time, or any similar successor rule that may be promulgated by the Commission. “Securities Act” means the Securities Act of 1933, as amended, or any similar federal statute promulgated in replacement thereof, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time.
“Shares” has the meaning ascribed to such term in the recitals of this Agreement.
“Term” has the meaning ascribed to such term in Section 2 hereof.
2. Term. The term (the “Term”) of this Agreement shall commence on the Effective Date and terminate on the date on which all of the shares of Registrable Securities held are eligible to be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required thereunder and without volume or manner-of-sale restrictions. 3. Registration. (a) Piggyback Registration. If at any time during the Term of this Agreement, the Company proposes to register for sale any of its Common Stock, for its own account or for the account of others (other than the Holders), under the Securities Act on any form for registration thereunder (the “Registration Statement”), other than (i) a registration relating solely to employee benefit plans or securities issued or issuable to employees, consultants (to the extent the securities owned or to be owned by such consultants could be registered on Form S-8) or any of their Family Members (including a registration on Form S-8) or (ii) a registration relating solely to a Securities Act Rule 145 transaction or a registration on Form S-4 in connection with a merger, acquisition, divestiture, reorganization or similar event, the Company shall promptly (and in no event less than twenty (20) calendar days prior to the filing of such Registration Statement) give written notice thereof to the Holders (the “Company Notice”). If a Holder wishes to include any Registrable Securities as a Piggyback Registration in the subject Registration Statement, such Holder shall provide written notice to the Company specifying the number of Registrable Securities desired to be included (an “Inclusion Notice”) within ten (10) calendar days of the date of the Company Notice (the “Inclusion Period”). Provided that, during the Inclusion Period, the Company receives Inclusion Notices requesting the Piggyback Registration, the Company shall include as a Piggyback Registration all of the Registrable Securities specified in the Inclusion Notices. Notwithstanding the foregoing, the Company may, without the consent of any of the Holders, withdraw such Registration Statement prior to its becoming effective if the Company or such other shareholders have elected to abandon the proposal to register the securities proposed to be registered thereby. There is no limitation on the number of piggyback registrations pursuant to the preceding sentence which the Company is obligated to effect.
(b) Underwriting. If a Piggyback Registration is for a registered public offering that is to be made by an underwriting, the Company shall, in the Company Notice, so advise the
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Holders of the Registrable Securities eligible for inclusion in such Registration Statement pursuant to Section 3(a). In such event, in addition to the conditions set forth in Section 3(a), the right of any Holder to Piggyback Registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to sell any of their Registrable Securities through such underwriting shall (together with the Company and any other shareholders of the Company selling their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter selected for such underwriting by the Company or the selling shareholders, as applicable. Notwithstanding any other provision of this Section 3, if the underwriter or the Company determines that marketing factors require a limitation on the number of shares of Common Stock or the amount of other securities to be underwritten, the underwriter may exclude some or all of the Registrable Securities from such registration and underwriting. The Company shall so advise all Holders, and indicate to each such Holder the number of shares of Registrable Securities that may be included in the registration and underwriting, if any. The number of shares that may be included in the registration and underwriting shall be allocated first to the Company and then, subject to obligations and commitments existing as of the date hereof, to all selling shareholders, including the Holders, who have requested to sell in the registration on a pro rata basis according to the number of shares requested to be included therein.
No Registrable Securities excluded from the underwriting by reason of the underwriter’s marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw such Holder’s Registrable Securities therefrom by delivering a written notice to the Company and the underwriter. The Registrable Securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities, a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities pursuant to the terms and limitations set forth herein in the same proportion used above in determining the underwriter limitation.
4. Registration Procedures The Company will keep each Holder who has delivered an Inclusion Notice reasonably advised as to the filing and effectiveness of the Registration Statement. At its expense with respect to the Registration Statement, the Company will: (a) use its best efforts to cause such Registration Statement to become effective and remain effective for a period of one year or for such shorter period ending on the earlier to occur of (i) the sale of all Registrable Securities and (ii) the availability under Rule 144 for the Holders to sell all of the Registrable Common Shares without the requirement for the Company to be in compliance with the current public information required thereunder and without volume or manner-of-sale restrictions (the “Effectiveness Period”). Each Holder agrees to furnish to the Company a completed questionnaire in the form provided by the Company (a “Selling Shareholder Questionnaire”) not later than three (3) Business Days following the date on which such Holder receives draft materials of such Registration Statement;
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(b) if the Registration Statement is subject to review by the Commission, promptly respond to all comments and diligently pursue resolution of any comments to the satisfaction of the Commission; (c) prepare and file with the Commission such amendments and supplements to such Registration Statement as may be necessary to keep such Registration Statement effective during the Effectiveness Period; (d) furnish, without charge, to each Holder of Registrable Securities covered by such Registration Statement (i) such number of copies of such Registration Statement (including any exhibits thereto other than exhibits incorporated by reference) and each amendment and supplement thereto, as such Holder may reasonably request, (ii) such number of copies of the prospectus included in such Registration Statement (including each preliminary prospectus and any other prospectus filed under Rule 424 of the Securities Act) as such Holder may reasonably request, in conformity with the requirements of the Securities Act, and (iii) such other documents as such Holder may require to consummate the disposition of the Registrable Securities owned by such Holder, but only during the Effectiveness Period; (e) use its best efforts to register or qualify such registration under such other applicable securities laws of such jurisdictions as any Holder of Registrable Securities covered by such Registration Statement reasonably requests and as may be necessary for the marketability of the Registrable Securities and do any and all other acts and things necessary to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Holder; provided, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph, or (ii) subject itself to taxation in any such jurisdiction; (f) use its best efforts to comply, and continue to comply during the Effectiveness Period, in all material respects with the Securities Act and the Exchange Act and with all applicable rules and regulations of the Commission with respect to the disposition of all securities covered by such Registration Statement; (g) as promptly as practicable after becoming aware of such event, notify each Holder of Registrable Securities being offered or sold pursuant to the Registration Statement of the issuance by the Commission of any stop order or other suspension of effectiveness of the Registration Statement; (h) use its best efforts to cause all the Registrable Securities covered by the Registration Statement to be quoted on the NASDAQ Capital Market or such other principal securities market on which securities of the same class or series issued by the Company are then listed or traded; (i) provide a transfer agent and registrar, which may be a single entity, for the shares of Common Stock at all times; (j) cooperate with the Holders of Registrable Securities being offered pursuant to the
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Registration Statement to issue and deliver, or cause its transfer agent to issue and deliver, certificates representing Registrable Securities to be offered pursuant to the Registration Statement within a reasonable time after the delivery of certificates representing the Registrable Securities to the transfer agent or the Company, as applicable, and enable such certificates to be in such denominations or amounts as the Holders may reasonably request and registered in such names as the Holders may request; and (k) during the Effectiveness Period, refrain from bidding for or purchasing any Common Stock or any right to purchase Common Stock or attempting to induce any person to purchase any such security or right if such bid, purchase or attempt would in any way limit the right of the Holders to sell Registrable Securities by reason of the limitations set forth in Regulation M of the Exchange Act.
5. Registration Expenses. The Company shall pay all expenses in connection with any registration obligation provided herein, including, without limitation, all registration, filing, stock exchange fees, printing expenses, all fees and expenses of complying with applicable securities laws, and the fees and disbursements of counsel for the Company and of its independent accountants; provided, that, in any underwritten registration, each party shall pay for its own underwriting discounts and commissions and transfer taxes. Except as provided in this Section and Section 9, the Company shall not be responsible for the expenses of any attorney or other advisor employed by a Holder. 6. Assignment of Rights. No Holder may assign its rights under this Agreement to any party without the prior written consent of the Company; provided, however, that any Holder may assign its rights under this Agreement without such consent to a Permitted Assignee as long as (a) such transfer or assignment is effected in accordance with applicable securities laws; (b) such transferee or assignee agrees in writing to become subject to the terms of this Agreement; and (c) such Holder notifies the Company in writing of such transfer or assignment, stating the name and address of the transferee or assignee and identifying the Registrable Securities with respect to which such rights are being transferred or assigned. 7. Information by Holder. Holders included in any registration shall furnish to the Company such information as the Company may reasonably request in writing regarding such Holders and the distribution proposed by such Holders including an updated Selling Shareholder Questionnaire if requested by the Company. 8. Indemnification.
(a) In the event of a registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company will, to the extent permitted by law, indemnify and hold harmless the Holder, each of the officers, directors, agents, affiliates, members, managers, control persons, and principal shareholders of the Holder, each underwriter of such Registrable Securities thereunder and each other person, if any, who controls such Holder or underwriter within the meaning of the Securities Act, against any losses, claims, damages or liabilities, joint or several, to which the Holder, or such underwriter or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or
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actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such Registrable Securities was registered under the Securities Act pursuant to this Agreement, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances when made, and will subject to the provisions of Section 8(c) reimburse the Holder, each such underwriter and each such controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company shall not be liable to the Holder to the extent that any such damages arise out of or are based upon an untrue statement or omission made in any preliminary prospectus if (i) the Holder failed to send or deliver a copy of the final prospectus delivered by the Company to the Holder with or prior to the delivery of written confirmation of the sale by the Holder to the person asserting the claim from which such damages arise, (ii) the final prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (iii) to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by any such Holder in writing specifically for use in such registration statement or prospectus. (b) In the event of a registration of any Registrable Securities under the Securities Act pursuant to this Agreement, each Holder severally but not jointly will, to the extent permitted by law, indemnify and hold harmless the Company, and each person, if any, who controls the Company within the meaning of the Securities Act, each officer of the Company who signs the registration statement, each director of the Company, each underwriter and each person who controls any underwriter within the meaning of the Securities Act, against all losses, claims, damages or liabilities, joint or several, to which the Company or such officer, director, underwriter or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the registration statement under which such Registrable Securities were registered under the Securities Act pursuant to this Agreement, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company and each such officer, director, underwriter and controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Holder will be liable hereunder in any such case if and only to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with information pertaining to such Holder, as such, furnished in writing to the Company by such Holder specifically for use in such registration statement or prospectus, and provided, further, however, that the liability of the Holder hereunder shall be limited to the net proceeds actually received by the Holder from the sale of Registrable Securities pursuant to such registration statement.
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(c) Promptly after receipt by an indemnified party hereunder of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party hereunder, notify the indemnifying party in writing thereof, but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to such indemnified party other than under this Section 8(c) and shall only relieve it from any liability which it may have to such indemnified party under this Section 8(c), except and only if and to the extent the indemnifying party is prejudiced by such omission. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in and, to the extent it shall wish, to assume and undertake the defense thereof with counsel satisfactory to such indemnified party, and, after notice from the indemnifying party to such indemnified party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 8(c) for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation and of liaison with counsel so selected, provided, however, that, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnifying party shall have reasonably concluded that there may be reasonable defenses available to indemnified party which are different from or additional to those available to the indemnifying party or if the interests of the indemnified party reasonably may be deemed to conflict with the interests of the indemnifying party, the indemnified parties, as a group, shall have the right to select one separate counsel, reasonably satisfactory to the indemnified and indemnifying party, and to assume such legal defenses and otherwise to participate in the defense of such action, with the reasonable expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the indemnifying party as incurred. (d) In order to provide for just and equitable contribution in the event of joint liability under the Securities Act in any case in which either (i) a Holder, or any controlling person of a Holder, makes a claim for indemnification pursuant to this Section 8 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 8 provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of the Holder or controlling person of the Holder in circumstances for which indemnification is not provided under this Section 8; then, and in each such case, the Company and the Holder will contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (after contribution from others) in such proportion so that the Holder is responsible only for the portion represented by the percentage that the public offering price of its securities offered by the registration statement bears to the public offering price of all securities offered by such registration statement, provided, however, that, in any such case, (y) the Holder will not be required to contribute any amount in excess of the public offering price of all such securities sold by it pursuant to such registration statement; and (z) no person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person or entity who was not guilty of such fraudulent misrepresentation and provided, further, however, that the liability of the Holder hereunder shall
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be limited to the net proceeds actually received by the Holder from the sale of Registrable Securities pursuant to such registration statement.
9. SEC Reports. With a view to making available to the Holder the benefits of Rule 144 promulgated under the Securities Act or any other similar rule or regulation of the SEC that may at any time permit the Holder to sell securities of the Company to the public without registration, the Company agrees to: (a) make and keep public information available, as those terms are understood and defined in Rule 144, (b) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act so long as the Company remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144, (c) furnish to each Holder so long as such Holder owns Registrable Securities, promptly upon request, (i) a written statement by the Company, if true, that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested to permit the Holder to sell such securities pursuant to Rule 144 without registration; and (d) so long as the Holder owns any Registrable Securities, if the Company is not required to file reports and other documents under the Securities Act and the Exchange Act, it will make available other information as required by, and so long as necessary to permit sales of Registrable Securities pursuant to, Rule 144.
10. Miscellaneous. (a) Governing Law; Jurisdiction. The validity and effect of this Agreement, and the rights and obligations of the parties hereto, shall be enforced, governed by, and construed in all respect in accordance with the internal laws of the State of New York (without reference to conflict of laws provisions). Each Party hereby irrevocably and unconditionally (a) agrees that any action or proceeding, at law or equity, arising out of or relating to this Agreement and any other agreements or the transactions contemplated hereby and thereby shall only be brought in the state or federal courts located in New York County, New York, (b) expressly submits to the personal jurisdiction and venue of such courts for the purposes thereof and (c) waives and agrees not to raise (by way of motion, as a defense or otherwise) any and all jurisdictional, venue and convenience objections or defenses that such party may have in such action or proceeding. Each party hereby irrevocably and unconditionally consents to the service of process of any of the aforementioned courts. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by law or commence legal proceedings or otherwise proceed against any other party in any other jurisdiction to enforce judgments obtained in any action or proceeding brought pursuant to this Section 10(a). (b) Remedies. In the event of a breach by the Company or by a Holder of any of their respective obligations under this Agreement, each Holder or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, shall be entitled to specific performance of its rights under this Agreement. The Company and each Holder agree that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby further agrees that, in the event of any action for
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specific performance in respect of such breach, it shall not assert or shall waive the defense that a remedy at law would be adequate.
(c) Successors and Assigns. Except as otherwise provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, Permitted Assignees, executors and administrators of the parties hereto. (d) No Inconsistent Agreements. The Company has not entered, as of the date hereof, and shall not enter, on or after the date of this Agreement, into any agreement with respect to its securities that would have the effect of impairing the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. (e) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subjects hereof. (f) Notices, etc. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, on the date of transmittal of services via facsimile or telecopy to the party to whom notice is to be given (if receipt is orally confirmed by phone and a confirming copy delivered thereafter in accordance with this Section), or on the fifth day after mailing if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, or via a nationally recognized overnight courier providing a receipt for delivery and properly addressed to the applicable address as set forth below. Any party may change its address for purposes of this paragraph by giving notice of the new address to each of the other parties in the manner set forth above.
(a) If to the Company to: MEDL Mobile Holdings, Inc. 18475 Bandilier Circle, Fountain Valley, CA 92708
Attention: Chief Executive Officer Fax:
(b) If to a Holder, to the Holder’s address set forth on the signature page hereto.
(g) Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any Holder, upon any breach or default of the Company under this Agreement, shall impair any such right, power or remedy of such Holder nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of any similar breach or default thereunder occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any Holder of any breach or default under this Agreement, or any waiver on the part of any Holder of any provisions or conditions of
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this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, or by law or otherwise afforded to any holder, shall be cumulative and not alternative.
(h) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. In the event that any signature is delivered by facsimile or electronic transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or electronci signature page were an original thereof. (i) Severability. In the case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. (j) Amendments. The provisions of this Agreement may be amended at any time and from time to time, and particular provisions of this Agreement may be waived, with and only with an agreement or consent in writing signed by the Company and the Majority of the Holders. The Holders acknowledge that by the operation of this Section, the Majority Holders may have the right and power to diminish or eliminate all rights of the Holders under this Agreement.
(k) Waiver of Jury Trial. EACH HOLDER AND THE COMPANY HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS LETTER AGREEMENT. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY SUCH HOLDER AND THE COMPANY.
[SIGNATURE PAGES FOLLOW]
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This Registration Rights Agreement is hereby executed as of the date first above written.
MEDL MOBILE HOLDINGS, INC.
BY:________________________________ Name: Andrew Maltin Title: Chief Executive Officer
[SIGNATURE PAGE OF HOLDER FOLLOWS]
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This Registration Rights Agreement is hereby executed as of the date first above written.
TO BE COMPLETED BY INVESTOR By: ______________________________ Address for Notices: _________________________________ _________________________________ _________________________________ Telephone No.: _______________________________ E-mail address: _______________________________ Tax ID: _________________________ | [
"-------------------------------------------------------------------------------- Exhibit 10.2 REGISTRATION RIGHTS AGREEMENT THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of June 24, 2011 (the “Effective Date”), among MEDL Mobile Holdings, Inc., a Nevada corporation (the “Company”), and each signatory hereto (each, an “Investor” and collectively, the “Investors”). R E C I T A L S WHEREAS, the Company and the Investors are parties to Subscription Agreements (the “Subscription Agreements”), dated as of the date hereof, as such may be amended and supplemented from time to time, pursuant to which the Company is issuing shares of Common Stock (the “Shares”) of the Company according to the terms set forth therein; WHEREAS, the Company desires to enter into an agreement granting the Investors certain “piggyback” registration rights in connection with their ownership of the Shares. NOW, THEREFORE, in consideration of the promises and mutual agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1.",
"Certain Definitions. As used in this Agreement, the following terms shall have the following respective meanings: “Business Day” means any day of the year, other than a Saturday, Sunday, or other day on which the Commission is required or authorized to close. “Commission” means the U. S. Securities and Exchange Commission or any other federal agency at the time administering the Securities Act. “Common Stock” means the common stock, par value $0.001 per share, of the Company and any and all shares of capital stock or other equity securities of: (i) the Company which are added to or exchanged or substituted for the Common Stock by reason of the declaration of any stock dividend or stock split, the issuance of any distribution or the reclassification, readjustment, recapitalization or other such modification of the capital structure of the Company; and (ii) any other corporation, now or hereafter organized under the laws of any state or other governmental authority, with which the Company is merged, which results from any consolidation or reorganization to which the Company is a party, or to which is sold all or substantially all of the shares or assets of the Company, if immediately after such merger, consolidation, reorganization or sale, the Company or the stockholders of the Company own equity securities having in the aggregate more than 50% of the total voting power of such other corporation.",
"“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder. “Family Member” means (a) with respect to any individual, such individual’s spouse, any descendants (whether natural or adopted), any trust all of the beneficial interests of which are -------------------------------------------------------------------------------- owned by any of such individuals or by any of such individuals together with any organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, the estate of any such individual, and any corporation, association, partnership or limited liability company, all of the equity interests of which are owned by those above described individuals, trusts or organizations and (b) with respect to any trust, the owners of the beneficial interests of such trust. “Holder” means each Investor or any such Investor’s successors and Permitted Assignees who acquire rights in accordance with this Agreement with respect to any Registrable Securities directly or indirectly from an Investor or from any Permitted Assignee. “Majority of the Holders” means at any time Holders representing a majority of the Registrable Securities.",
"“Permitted Assignee” means (a) with respect to a partnership, its partners or former partners in accordance with their partnership interests, (b) with respect to a corporation, its shareholders in accordance with their interest in the corporation, (c) with respect to a limited liability company, its members or former members in accordance with their interest in the limited liability company, (d) with respect to an individual, any Family Member of such party or (e) an entity that is controlled by, controls, or is under common control with a transferor. “Piggyback Registration” means, in any registration of Common Stock referenced in Section 3(a) of this Agreement, the right of each Holder to include the Registrable Securities of such Holder in such registration. The terms “register,” “registered,” and “registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement.",
"“Registrable Securities” means the Shares, but excluding (i) any Shares that have been publicly sold or are eligible be sold under the Securities Act pursuant to Rule 144 of the Securities Act without the requirement for the Company to be in compliance with the current public information required thereunder and without volume or manner-of-sale restrictions; (ii) any Shares sold by a person in a transaction pursuant to a registration statement filed under the Securities Act, or (iii) any Shares that are at the time subject to an effective registration statement under the Securities Act. “Registration Statement” has the meaning ascribed to such term in Section 3(a) hereof. “Rule 145” means Rule 145 promulgated by the Commission under the Securities Act, as such rule may be amended or supplemented from time to time, or any similar successor rule that may be promulgated by the Commission.",
"“Rule 144” means Rule 144 promulgated by the Commission under the Securities Act, as such rule may be amended or supplemented from time to time, or any similar successor rule that may be promulgated by the Commission. -------------------------------------------------------------------------------- “Rule 415” means Rule 415 promulgated by the Commission under the Securities Act, as such rule may be amended or supplemented from time to time, or any similar successor rule that may be promulgated by the Commission. “Securities Act” means the Securities Act of 1933, as amended, or any similar federal statute promulgated in replacement thereof, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. “Shares” has the meaning ascribed to such term in the recitals of this Agreement. “Term” has the meaning ascribed to such term in Section 2 hereof.",
"2. Term. The term (the “Term”) of this Agreement shall commence on the Effective Date and terminate on the date on which all of the shares of Registrable Securities held are eligible to be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required thereunder and without volume or manner-of-sale restrictions. 3. Registration. (a) Piggyback Registration. If at any time during the Term of this Agreement, the Company proposes to register for sale any of its Common Stock, for its own account or for the account of others (other than the Holders), under the Securities Act on any form for registration thereunder (the “Registration Statement”), other than (i) a registration relating solely to employee benefit plans or securities issued or issuable to employees, consultants (to the extent the securities owned or to be owned by such consultants could be registered on Form S-8) or any of their Family Members (including a registration on Form S-8) or (ii) a registration relating solely to a Securities Act Rule 145 transaction or a registration on Form S-4 in connection with a merger, acquisition, divestiture, reorganization or similar event, the Company shall promptly (and in no event less than twenty (20) calendar days prior to the filing of such Registration Statement) give written notice thereof to the Holders (the “Company Notice”).",
"If a Holder wishes to include any Registrable Securities as a Piggyback Registration in the subject Registration Statement, such Holder shall provide written notice to the Company specifying the number of Registrable Securities desired to be included (an “Inclusion Notice”) within ten (10) calendar days of the date of the Company Notice (the “Inclusion Period”). Provided that, during the Inclusion Period, the Company receives Inclusion Notices requesting the Piggyback Registration, the Company shall include as a Piggyback Registration all of the Registrable Securities specified in the Inclusion Notices. Notwithstanding the foregoing, the Company may, without the consent of any of the Holders, withdraw such Registration Statement prior to its becoming effective if the Company or such other shareholders have elected to abandon the proposal to register the securities proposed to be registered thereby. There is no limitation on the number of piggyback registrations pursuant to the preceding sentence which the Company is obligated to effect. (b) Underwriting. If a Piggyback Registration is for a registered public offering that is to be made by an underwriting, the Company shall, in the Company Notice, so advise the -------------------------------------------------------------------------------- Holders of the Registrable Securities eligible for inclusion in such Registration Statement pursuant to Section 3(a).",
"In such event, in addition to the conditions set forth in Section 3(a), the right of any Holder to Piggyback Registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to sell any of their Registrable Securities through such underwriting shall (together with the Company and any other shareholders of the Company selling their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter selected for such underwriting by the Company or the selling shareholders, as applicable. Notwithstanding any other provision of this Section 3, if the underwriter or the Company determines that marketing factors require a limitation on the number of shares of Common Stock or the amount of other securities to be underwritten, the underwriter may exclude some or all of the Registrable Securities from such registration and underwriting. The Company shall so advise all Holders, and indicate to each such Holder the number of shares of Registrable Securities that may be included in the registration and underwriting, if any. The number of shares that may be included in the registration and underwriting shall be allocated first to the Company and then, subject to obligations and commitments existing as of the date hereof, to all selling shareholders, including the Holders, who have requested to sell in the registration on a pro rata basis according to the number of shares requested to be included therein.",
"No Registrable Securities excluded from the underwriting by reason of the underwriter’s marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw such Holder’s Registrable Securities therefrom by delivering a written notice to the Company and the underwriter. The Registrable Securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities, a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities pursuant to the terms and limitations set forth herein in the same proportion used above in determining the underwriter limitation. 4. Registration Procedures The Company will keep each Holder who has delivered an Inclusion Notice reasonably advised as to the filing and effectiveness of the Registration Statement. At its expense with respect to the Registration Statement, the Company will: (a) use its best efforts to cause such Registration Statement to become effective and remain effective for a period of one year or for such shorter period ending on the earlier to occur of (i) the sale of all Registrable Securities and (ii) the availability under Rule 144 for the Holders to sell all of the Registrable Common Shares without the requirement for the Company to be in compliance with the current public information required thereunder and without volume or manner-of-sale restrictions (the “Effectiveness Period”).",
"Each Holder agrees to furnish to the Company a completed questionnaire in the form provided by the Company (a “Selling Shareholder Questionnaire”) not later than three (3) Business Days following the date on which such Holder receives draft materials of such Registration Statement; -------------------------------------------------------------------------------- (b) if the Registration Statement is subject to review by the Commission, promptly respond to all comments and diligently pursue resolution of any comments to the satisfaction of the Commission; (c) prepare and file with the Commission such amendments and supplements to such Registration Statement as may be necessary to keep such Registration Statement effective during the Effectiveness Period; (d) furnish, without charge, to each Holder of Registrable Securities covered by such Registration Statement (i) such number of copies of such Registration Statement (including any exhibits thereto other than exhibits incorporated by reference) and each amendment and supplement thereto, as such Holder may reasonably request, (ii) such number of copies of the prospectus included in such Registration Statement (including each preliminary prospectus and any other prospectus filed under Rule 424 of the Securities Act) as such Holder may reasonably request, in conformity with the requirements of the Securities Act, and (iii) such other documents as such Holder may require to consummate the disposition of the Registrable Securities owned by such Holder, but only during the Effectiveness Period; (e) use its best efforts to register or qualify such registration under such other applicable securities laws of such jurisdictions as any Holder of Registrable Securities covered by such Registration Statement reasonably requests and as may be necessary for the marketability of the Registrable Securities and do any and all other acts and things necessary to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Holder; provided, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph, or (ii) subject itself to taxation in any such jurisdiction; (f) use its best efforts to comply, and continue to comply during the Effectiveness Period, in all material respects with the Securities Act and the Exchange Act and with all applicable rules and regulations of the Commission with respect to the disposition of all securities covered by such Registration Statement; (g) as promptly as practicable after becoming aware of such event, notify each Holder of Registrable Securities being offered or sold pursuant to the Registration Statement of the issuance by the Commission of any stop order or other suspension of effectiveness of the Registration Statement; (h) use its best efforts to cause all the Registrable Securities covered by the Registration Statement to be quoted on the NASDAQ Capital Market or such other principal securities market on which securities of the same class or series issued by the Company are then listed or traded; (i) provide a transfer agent and registrar, which may be a single entity, for the shares of Common Stock at all times; (j) cooperate with the Holders of Registrable Securities being offered pursuant to the -------------------------------------------------------------------------------- Registration Statement to issue and deliver, or cause its transfer agent to issue and deliver, certificates representing Registrable Securities to be offered pursuant to the Registration Statement within a reasonable time after the delivery of certificates representing the Registrable Securities to the transfer agent or the Company, as applicable, and enable such certificates to be in such denominations or amounts as the Holders may reasonably request and registered in such names as the Holders may request; and (k) during the Effectiveness Period, refrain from bidding for or purchasing any Common Stock or any right to purchase Common Stock or attempting to induce any person to purchase any such security or right if such bid, purchase or attempt would in any way limit the right of the Holders to sell Registrable Securities by reason of the limitations set forth in Regulation M of the Exchange Act.",
"5. Registration Expenses. The Company shall pay all expenses in connection with any registration obligation provided herein, including, without limitation, all registration, filing, stock exchange fees, printing expenses, all fees and expenses of complying with applicable securities laws, and the fees and disbursements of counsel for the Company and of its independent accountants; provided, that, in any underwritten registration, each party shall pay for its own underwriting discounts and commissions and transfer taxes. Except as provided in this Section and Section 9, the Company shall not be responsible for the expenses of any attorney or other advisor employed by a Holder. 6. Assignment of Rights. No Holder may assign its rights under this Agreement to any party without the prior written consent of the Company; provided, however, that any Holder may assign its rights under this Agreement without such consent to a Permitted Assignee as long as (a) such transfer or assignment is effected in accordance with applicable securities laws; (b) such transferee or assignee agrees in writing to become subject to the terms of this Agreement; and (c) such Holder notifies the Company in writing of such transfer or assignment, stating the name and address of the transferee or assignee and identifying the Registrable Securities with respect to which such rights are being transferred or assigned.",
"7. Information by Holder. Holders included in any registration shall furnish to the Company such information as the Company may reasonably request in writing regarding such Holders and the distribution proposed by such Holders including an updated Selling Shareholder Questionnaire if requested by the Company. 8. Indemnification.",
"(a) In the event of a registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company will, to the extent permitted by law, indemnify and hold harmless the Holder, each of the officers, directors, agents, affiliates, members, managers, control persons, and principal shareholders of the Holder, each underwriter of such Registrable Securities thereunder and each other person, if any, who controls such Holder or underwriter within the meaning of the Securities Act, against any losses, claims, damages or liabilities, joint or several, to which the Holder, or such underwriter or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or -------------------------------------------------------------------------------- actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such Registrable Securities was registered under the Securities Act pursuant to this Agreement, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances when made, and will subject to the provisions of Section 8(c) reimburse the Holder, each such underwriter and each such controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company shall not be liable to the Holder to the extent that any such damages arise out of or are based upon an untrue statement or omission made in any preliminary prospectus if (i) the Holder failed to send or deliver a copy of the final prospectus delivered by the Company to the Holder with or prior to the delivery of written confirmation of the sale by the Holder to the person asserting the claim from which such damages arise, (ii) the final prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (iii) to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by any such Holder in writing specifically for use in such registration statement or prospectus.",
"(b) In the event of a registration of any Registrable Securities under the Securities Act pursuant to this Agreement, each Holder severally but not jointly will, to the extent permitted by law, indemnify and hold harmless the Company, and each person, if any, who controls the Company within the meaning of the Securities Act, each officer of the Company who signs the registration statement, each director of the Company, each underwriter and each person who controls any underwriter within the meaning of the Securities Act, against all losses, claims, damages or liabilities, joint or several, to which the Company or such officer, director, underwriter or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the registration statement under which such Registrable Securities were registered under the Securities Act pursuant to this Agreement, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company and each such officer, director, underwriter and controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Holder will be liable hereunder in any such case if and only to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with information pertaining to such Holder, as such, furnished in writing to the Company by such Holder specifically for use in such registration statement or prospectus, and provided, further, however, that the liability of the Holder hereunder shall be limited to the net proceeds actually received by the Holder from the sale of Registrable Securities pursuant to such registration statement.",
"-------------------------------------------------------------------------------- (c) Promptly after receipt by an indemnified party hereunder of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party hereunder, notify the indemnifying party in writing thereof, but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to such indemnified party other than under this Section 8(c) and shall only relieve it from any liability which it may have to such indemnified party under this Section 8(c), except and only if and to the extent the indemnifying party is prejudiced by such omission. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in and, to the extent it shall wish, to assume and undertake the defense thereof with counsel satisfactory to such indemnified party, and, after notice from the indemnifying party to such indemnified party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 8(c) for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation and of liaison with counsel so selected, provided, however, that, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnifying party shall have reasonably concluded that there may be reasonable defenses available to indemnified party which are different from or additional to those available to the indemnifying party or if the interests of the indemnified party reasonably may be deemed to conflict with the interests of the indemnifying party, the indemnified parties, as a group, shall have the right to select one separate counsel, reasonably satisfactory to the indemnified and indemnifying party, and to assume such legal defenses and otherwise to participate in the defense of such action, with the reasonable expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the indemnifying party as incurred.",
"(d) In order to provide for just and equitable contribution in the event of joint liability under the Securities Act in any case in which either (i) a Holder, or any controlling person of a Holder, makes a claim for indemnification pursuant to this Section 8 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 8 provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of the Holder or controlling person of the Holder in circumstances for which indemnification is not provided under this Section 8; then, and in each such case, the Company and the Holder will contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (after contribution from others) in such proportion so that the Holder is responsible only for the portion represented by the percentage that the public offering price of its securities offered by the registration statement bears to the public offering price of all securities offered by such registration statement, provided, however, that, in any such case, (y) the Holder will not be required to contribute any amount in excess of the public offering price of all such securities sold by it pursuant to such registration statement; and (z) no person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person or entity who was not guilty of such fraudulent misrepresentation and provided, further, however, that the liability of the Holder hereunder shall -------------------------------------------------------------------------------- be limited to the net proceeds actually received by the Holder from the sale of Registrable Securities pursuant to such registration statement.",
"9. SEC Reports. With a view to making available to the Holder the benefits of Rule 144 promulgated under the Securities Act or any other similar rule or regulation of the SEC that may at any time permit the Holder to sell securities of the Company to the public without registration, the Company agrees to: (a) make and keep public information available, as those terms are understood and defined in Rule 144, (b) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act so long as the Company remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144, (c) furnish to each Holder so long as such Holder owns Registrable Securities, promptly upon request, (i) a written statement by the Company, if true, that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested to permit the Holder to sell such securities pursuant to Rule 144 without registration; and (d) so long as the Holder owns any Registrable Securities, if the Company is not required to file reports and other documents under the Securities Act and the Exchange Act, it will make available other information as required by, and so long as necessary to permit sales of Registrable Securities pursuant to, Rule 144.",
"10. Miscellaneous. (a) Governing Law; Jurisdiction. The validity and effect of this Agreement, and the rights and obligations of the parties hereto, shall be enforced, governed by, and construed in all respect in accordance with the internal laws of the State of New York (without reference to conflict of laws provisions). Each Party hereby irrevocably and unconditionally (a) agrees that any action or proceeding, at law or equity, arising out of or relating to this Agreement and any other agreements or the transactions contemplated hereby and thereby shall only be brought in the state or federal courts located in New York County, New York, (b) expressly submits to the personal jurisdiction and venue of such courts for the purposes thereof and (c) waives and agrees not to raise (by way of motion, as a defense or otherwise) any and all jurisdictional, venue and convenience objections or defenses that such party may have in such action or proceeding. Each party hereby irrevocably and unconditionally consents to the service of process of any of the aforementioned courts. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by law or commence legal proceedings or otherwise proceed against any other party in any other jurisdiction to enforce judgments obtained in any action or proceeding brought pursuant to this Section 10(a).",
"(b) Remedies. In the event of a breach by the Company or by a Holder of any of their respective obligations under this Agreement, each Holder or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, shall be entitled to specific performance of its rights under this Agreement. The Company and each Holder agree that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby further agrees that, in the event of any action for -------------------------------------------------------------------------------- specific performance in respect of such breach, it shall not assert or shall waive the defense that a remedy at law would be adequate.",
"(c) Successors and Assigns. Except as otherwise provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, Permitted Assignees, executors and administrators of the parties hereto. (d) No Inconsistent Agreements. The Company has not entered, as of the date hereof, and shall not enter, on or after the date of this Agreement, into any agreement with respect to its securities that would have the effect of impairing the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. (e) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subjects hereof. (f) Notices, etc. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, on the date of transmittal of services via facsimile or telecopy to the party to whom notice is to be given (if receipt is orally confirmed by phone and a confirming copy delivered thereafter in accordance with this Section), or on the fifth day after mailing if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, or via a nationally recognized overnight courier providing a receipt for delivery and properly addressed to the applicable address as set forth below.",
"Any party may change its address for purposes of this paragraph by giving notice of the new address to each of the other parties in the manner set forth above. (a) If to the Company to: MEDL Mobile Holdings, Inc. 18475 Bandilier Circle, Fountain Valley, CA 92708 Attention: Chief Executive Officer Fax: (b) If to a Holder, to the Holder’s address set forth on the signature page hereto.",
"(g) Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any Holder, upon any breach or default of the Company under this Agreement, shall impair any such right, power or remedy of such Holder nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of any similar breach or default thereunder occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring.",
"Any waiver, permit, consent or approval of any kind or character on the part of any Holder of any breach or default under this Agreement, or any waiver on the part of any Holder of any provisions or conditions of -------------------------------------------------------------------------------- this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, or by law or otherwise afforded to any holder, shall be cumulative and not alternative. (h) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. In the event that any signature is delivered by facsimile or electronic transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or electronci signature page were an original thereof.",
"(i) Severability. In the case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. (j) Amendments. The provisions of this Agreement may be amended at any time and from time to time, and particular provisions of this Agreement may be waived, with and only with an agreement or consent in writing signed by the Company and the Majority of the Holders. The Holders acknowledge that by the operation of this Section, the Majority Holders may have the right and power to diminish or eliminate all rights of the Holders under this Agreement. (k) Waiver of Jury Trial.",
"EACH HOLDER AND THE COMPANY HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS LETTER AGREEMENT. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY SUCH HOLDER AND THE COMPANY. [SIGNATURE PAGES FOLLOW] -------------------------------------------------------------------------------- This Registration Rights Agreement is hereby executed as of the date first above written. MEDL MOBILE HOLDINGS, INC. BY:________________________________ Name: Andrew Maltin Title: Chief Executive Officer [SIGNATURE PAGE OF HOLDER FOLLOWS] -------------------------------------------------------------------------------- This Registration Rights Agreement is hereby executed as of the date first above written. TO BE COMPLETED BY INVESTOR By: ______________________________ Address for Notices: _________________________________ _________________________________ _________________________________ Telephone No. : _______________________________ E-mail address: _______________________________ Tax ID: _________________________"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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GILBERT, Circuit Judge. The appellant, a lad 12 years of age, claiming to be the foreign-bom son of Toy Ping Chee, a native-born citizen of the United States, was denied admission to the. United States for failure of proof of his relationship to his alleged father. He appeals from the order in the court below, which dismissed his petition for habeas corpus upon a hearing had upon the petition and the proceedings upon which admission had been denied him. The petition alleged that the hearing upon the appellant’s application for admission was unfair, in that the evidence presented to the commissioner and to the board of special inquiry was of so conclusive a character that it was abuse of discretion to reject the same. The conclusion of the commissioner and the board was based upon certain discrepancies between the testimony of the applicant and that of others, especially that of his alleged brother, given in the! year 1917, at the time when the latter was permitted to land as a son of said Toy Ping Chee. Toy Wing Guey testified at that time concerning the neighboring families in the native village from which he and the applicant purported to have come, and concerning the names and ages of children who lived in an adjoining house. He said that there were three children in that house — Toy Ting Sing, a boy 16 or 17 years old; Toy Tew, a girl 18 or 19 years old; and Toy See, á boy 8 or 9 years old. The applicant testified, as to the same children, that in 1927 Toy Ting Sing was 20 years old, Toy Tew was 19 years old, and that Toy See -was 8 or 9 years old, and had been his schoolmate during the past year. From these discrepancies, and the manner in which his testimony was given, the chairman of the board was of the opinion that the appellant had been coached, and that he had failed to make allowance for the 10 years that had elapsed since his brother’s said testimony had been given. The discrepancies cannot he dismissed as unimportant. They went to the, very crux of the appellant’s claim of relationship to his alleged father, and were sufficient to justify its rejection by the officers whose duty it was to act in the premises. Said the court in Quock Ting v. United States, 140 U. S. 420, 11 S. Ct. 734, 35 L. Ed. 501: “He may be contradicted by the facts he states as completely as by direct adverse testimony;' and there may be so many omissions in his account of particular transactions, or of his own conduct, as to discredit his whole story. His manner, too, of testifying, may give rise to doubts of his sincerity.” The judgment is affirmed. | 07-23-2022 | [
"GILBERT, Circuit Judge. The appellant, a lad 12 years of age, claiming to be the foreign-bom son of Toy Ping Chee, a native-born citizen of the United States, was denied admission to the. United States for failure of proof of his relationship to his alleged father. He appeals from the order in the court below, which dismissed his petition for habeas corpus upon a hearing had upon the petition and the proceedings upon which admission had been denied him.",
"The petition alleged that the hearing upon the appellant’s application for admission was unfair, in that the evidence presented to the commissioner and to the board of special inquiry was of so conclusive a character that it was abuse of discretion to reject the same. The conclusion of the commissioner and the board was based upon certain discrepancies between the testimony of the applicant and that of others, especially that of his alleged brother, given in the! year 1917, at the time when the latter was permitted to land as a son of said Toy Ping Chee. Toy Wing Guey testified at that time concerning the neighboring families in the native village from which he and the applicant purported to have come, and concerning the names and ages of children who lived in an adjoining house.",
"He said that there were three children in that house — Toy Ting Sing, a boy 16 or 17 years old; Toy Tew, a girl 18 or 19 years old; and Toy See, á boy 8 or 9 years old. The applicant testified, as to the same children, that in 1927 Toy Ting Sing was 20 years old, Toy Tew was 19 years old, and that Toy See -was 8 or 9 years old, and had been his schoolmate during the past year. From these discrepancies, and the manner in which his testimony was given, the chairman of the board was of the opinion that the appellant had been coached, and that he had failed to make allowance for the 10 years that had elapsed since his brother’s said testimony had been given.",
"The discrepancies cannot he dismissed as unimportant. They went to the, very crux of the appellant’s claim of relationship to his alleged father, and were sufficient to justify its rejection by the officers whose duty it was to act in the premises. Said the court in Quock Ting v. United States, 140 U. S. 420, 11 S. Ct. 734, 35 L. Ed. 501: “He may be contradicted by the facts he states as completely as by direct adverse testimony;' and there may be so many omissions in his account of particular transactions, or of his own conduct, as to discredit his whole story. His manner, too, of testifying, may give rise to doubts of his sincerity.” The judgment is affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6836865/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
898 So.2d 1021 (2005) Lauren Richard ROSECAN, Appellant, v. Carol Ann SPRINGER, Appellee. No. 4D03-4404. District Court of Appeal of Florida, Fourth District. March 9, 2005. Rehearing Denied April 13, 2005. Paula Revene, Fort Lauderdale, and Greene, Smith & Associates, P.A., Miami, for appellant. Neil B. Jagolinzer of Christiansen & Jacknin, West Palm Beach, for appellee. MAY, J. This is our second opportunity to review the trial court's award of permanent periodic alimony in this dissolution proceeding. In 2003, this court issued its opinion in the former husband's appeal from the final judgment of dissolution. See Rosecan v. Springer, 845 So.2d 927 (Fla. 4th DCA 2003). We reversed the permanent periodic alimony award, and remanded the case to the trial court. We did not dictate the ultimate result, but permitted the court to use its discretion in fashioning alimony in line with the factual findings it had previously made. Rather than comply with this court's instructions and our mandate, the trial court had this to say: [W]hat they did simply is to say that they didn't understand. Well, what they didn't understand is they didn't tax effect, even though the final judgment says taxable to the wife and a deductible by the husband. They didn't tax effect that, so that's why they couldn't figure out the numbers and they obviously didn't take the time, or didn't have the ability to take the time to look at the books that were submitted to me. The trial court's suggestion that we did not understand the tax consequences is refuted by our opinion in which we recited that "the court awarded a permanent periodic alimony of $20,000 a month, taxable to the wife." Rosecan, 845 So.2d at 929. We understood. On remand, the trial court, without any new evidence, attempted to rework its original findings in order to award the *1022 same amount of alimony we reversed in our prior opinion. In its original judgment, the trial court found the following: "The disparity in income between the parties is significant even if the Wife were to return to work full-time.... Working full time as a non-surgical ophthalmologist, her wages in the short-run would not likely exceed $130,000. Her annual wages in the long run of $200,000 to $300,000 (three to five years) will still never approach that of her Husband. However, her ability to reach that level of earnings do [sic] not require her to re-train for surgical skills. Her voluntary retirement is not a justification to receive alimony...." On remand, contrary to our instruction and the findings articulated above, the court reconstructed the findings of fact. "[T]o impute earned yearly income to the Wife of $200,000.00, as suggested by Husband's accountant, would require the Wife not only to work full-time, but at even a greater level of employment than a 40 hour work week. That was never the historical reality of the intact marriage as the evidence and the Corrected Final Judgment specifically identified. Therefore, the speculation made by the Husband's accountant was not reliably established." Similarly, in the original final judgment, the court found: "The Wife's resources include income-producing rental property, substantial liquid assets yielding passive income, and substantially more liquid assets upon equitable distribution.... The Court is persuaded that she shall indeed receive a respectable income therefrom without liquidating all her assets...." On remand, and we again emphasize without hearing further testimony, the court found: "The Court specifically rejects the Husband's accountant's speculation that the Wife would receive $100,000.00 to $200,000.00 in passive income. There simply is not reliable supporting evidence from the trial for that contention. The Wife's accountant opined that her passive income would be less than $1,000.00 per month." Remands are for the purpose of correcting the error which resulted in the reversal of a judgment. The trial court's discretion upon remand is limited by the scope of the relief granted. See Akins v. Akins, 839 So.2d 910, 911 (Fla. 5th DCA 2003). Needless to say, the trial court exceeded its authority on remand in this case. As the trial court initially found, the former wife was not a stay-at-home wife, who sacrificed her career for the sake of the husband's career and family. She is both a doctor and a lawyer, who has an earning capacity. She also received income-producing assets, which were acknowledged by the trial court in the original final judgment, but ignored by the court on remand. The fact that the former husband has a lucrative practice does not justify the court turning a blind eye to the statutory factors to be considered in an award of alimony, which include the financial resources of each party and the sources of income available to each. See § 61.08(2)(a)-(g), Fla. Stat. (2001). The former wife's identified need is $18,289. The testimony from the trial revealed her earning capacity at a minimum of $130,000 with a potential of $200,000-$300,000 in three to five years. The $130,000 earning capacity yields over $10,000 per month in income. The former wife received substantial income-producing *1023 assets as a result of the equitable distribution. Upon this remand, the court should determine the amount of passive income to be attributed to those assets, add that to at least the minimum income of $130,000 and determine what difference, if any, results. The court should then determine what alimony, if any, is warranted. REVERSED. GUNTHER and KLEIN, JJ., concur. | 10-30-2013 | [
"898 So.2d 1021 (2005) Lauren Richard ROSECAN, Appellant, v. Carol Ann SPRINGER, Appellee. No. 4D03-4404. District Court of Appeal of Florida, Fourth District. March 9, 2005. Rehearing Denied April 13, 2005. Paula Revene, Fort Lauderdale, and Greene, Smith & Associates, P.A., Miami, for appellant. Neil B. Jagolinzer of Christiansen & Jacknin, West Palm Beach, for appellee. MAY, J. This is our second opportunity to review the trial court's award of permanent periodic alimony in this dissolution proceeding. In 2003, this court issued its opinion in the former husband's appeal from the final judgment of dissolution. See Rosecan v. Springer, 845 So.2d 927 (Fla. 4th DCA 2003). We reversed the permanent periodic alimony award, and remanded the case to the trial court.",
"We did not dictate the ultimate result, but permitted the court to use its discretion in fashioning alimony in line with the factual findings it had previously made. Rather than comply with this court's instructions and our mandate, the trial court had this to say: [W]hat they did simply is to say that they didn't understand. Well, what they didn't understand is they didn't tax effect, even though the final judgment says taxable to the wife and a deductible by the husband. They didn't tax effect that, so that's why they couldn't figure out the numbers and they obviously didn't take the time, or didn't have the ability to take the time to look at the books that were submitted to me. The trial court's suggestion that we did not understand the tax consequences is refuted by our opinion in which we recited that \"the court awarded a permanent periodic alimony of $20,000 a month, taxable to the wife.\"",
"Rosecan, 845 So.2d at 929. We understood. On remand, the trial court, without any new evidence, attempted to rework its original findings in order to award the *1022 same amount of alimony we reversed in our prior opinion. In its original judgment, the trial court found the following: \"The disparity in income between the parties is significant even if the Wife were to return to work full-time.... Working full time as a non-surgical ophthalmologist, her wages in the short-run would not likely exceed $130,000. Her annual wages in the long run of $200,000 to $300,000 (three to five years) will still never approach that of her Husband. However, her ability to reach that level of earnings do [sic] not require her to re-train for surgical skills. Her voluntary retirement is not a justification to receive alimony....\" On remand, contrary to our instruction and the findings articulated above, the court reconstructed the findings of fact. \"[T]o impute earned yearly income to the Wife of $200,000.00, as suggested by Husband's accountant, would require the Wife not only to work full-time, but at even a greater level of employment than a 40 hour work week.",
"That was never the historical reality of the intact marriage as the evidence and the Corrected Final Judgment specifically identified. Therefore, the speculation made by the Husband's accountant was not reliably established.\" Similarly, in the original final judgment, the court found: \"The Wife's resources include income-producing rental property, substantial liquid assets yielding passive income, and substantially more liquid assets upon equitable distribution.... The Court is persuaded that she shall indeed receive a respectable income therefrom without liquidating all her assets....\" On remand, and we again emphasize without hearing further testimony, the court found: \"The Court specifically rejects the Husband's accountant's speculation that the Wife would receive $100,000.00 to $200,000.00 in passive income. There simply is not reliable supporting evidence from the trial for that contention. The Wife's accountant opined that her passive income would be less than $1,000.00 per month.\" Remands are for the purpose of correcting the error which resulted in the reversal of a judgment.",
"The trial court's discretion upon remand is limited by the scope of the relief granted. See Akins v. Akins, 839 So.2d 910, 911 (Fla. 5th DCA 2003). Needless to say, the trial court exceeded its authority on remand in this case. As the trial court initially found, the former wife was not a stay-at-home wife, who sacrificed her career for the sake of the husband's career and family. She is both a doctor and a lawyer, who has an earning capacity. She also received income-producing assets, which were acknowledged by the trial court in the original final judgment, but ignored by the court on remand. The fact that the former husband has a lucrative practice does not justify the court turning a blind eye to the statutory factors to be considered in an award of alimony, which include the financial resources of each party and the sources of income available to each. See § 61.08(2)(a)-(g), Fla. Stat.",
"(2001). The former wife's identified need is $18,289. The testimony from the trial revealed her earning capacity at a minimum of $130,000 with a potential of $200,000-$300,000 in three to five years. The $130,000 earning capacity yields over $10,000 per month in income. The former wife received substantial income-producing *1023 assets as a result of the equitable distribution. Upon this remand, the court should determine the amount of passive income to be attributed to those assets, add that to at least the minimum income of $130,000 and determine what difference, if any, results. The court should then determine what alimony, if any, is warranted. REVERSED.",
"GUNTHER and KLEIN, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1842330/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR RECONSIDERATION McMAHON, District Judge. On January 3, 2001, I ordered that judgment be entered against defendant OSI, and that plaintiff Wilner be awarded $1,000. In addition, I dismissed plaintiffs complaint for lack of subject matter jurisdiction (in that defendant, pursuant to Fed.R.Civ.P. 68, had offered plaintiff the full amount — $1,000— that plaintiff could hope to recover in this action), and I retained jurisdiction to set the amount of attorneys’ fees to be awarded to plaintiffs’ counsel. Wilner v. OSI Collection Services, Inc., 198 F.R.D. 393, 397 (S.D.N.Y. Jan.3, 2001). Counsel have moved for attorneys’ fees in the amount of $12,814.59, consisting of an award of $8,419.59 to the firm of Edelman, Combs & Latturner, an out-of-state firm, and $2,095.00 for Adam J. Fishbein, Esq., who appeared as local counsel. In addition, Mr. Fishbein has moved, by letter, for reconsideration of the Court’s order and decision dismissing the plaintiffs case and denying the motion for class certification. Id. at 397. I will first address the motion for reconsideration. 1. The Motion For Reconsideration Of The Order Dismissing Wilner’s Claim As Moot Is Granted Plaintiff moves for reconsideration of the previous order dismissing this case as moot, on the grounds that defendant’s offer of judgment — “$3,000, inclusive of attorney’s fees and costs” — was not all that plaintiff could have received under the statute. By way of background, plaintiff alleges that he received a debt collection letter from defendant OSI that violates the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. The FDCPA limits the liability of a debt collector to “any actual damages sustained” by the claimant due to the debt collector’s violation of the Act, “such additional damages as the court may allow, but not exceeding $1,000,” and “costs of the action, together with a reasonable attorney’s fee as determined by the court.” 15 U.S.C. §§ 1692k(a)(l), (2), (3). As Wilner has not alleged that he suffered any actual damages, his recovery is thus limited to the statutory damages. On October 27, 2000 (subsequent to plaintiffs motion for class certification), defendant served on Wilner a Rule 68 offer of judgment in the amount of $3,000, inclusive of all legal fees, disbursements and costs. Fed.R.Civ.P. 68. Rule 68 provides that: At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specific in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is *323accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. Id. Courts have held, based on the language of this rule, that when defendant offers “all that [a plaintiff can] hope to recover through [the] litigation, ‘there is no justification for taking the time of the court and the defendant in the pursuit of [a] minuscule individual elaim[ ] which defendant has ... satisfied.’ ” Ambalu v. Rosenblatt, 194 F.R.D. 451, (E.D.N.Y.2000) (requiring plaintiff to accept offer of judgment and dismissing plaintiffs Fair Debt Act claim) (quoting Abrams v. Interco Inc., 719 F.2d 23, 32 (2d Cir.1983)); see also Murphy v. Equifax Check Servs., Inc., 35 F.Supp.2d 200, 203 (D.Conn.1999) (dismissing plaintiffs Fair Debt Act claim because defendant “agreed to give the plaintiff full relief.”). Following the reasoning of Ambalu v. Rosenblatt, 194 F.R.D. 451, 452 (E.D.N.Y.2000), I held that Wilner’s claim was moot, as he no longer had a “legally cognizable interest” in the outcome. Id. at 452. Plaintiff argues, however,, that his failure to accept the $3,000 offer of judgment did not render his claim moot because the Fair Debt Act allows for statutory damages of $1,000 and “reasonable” attorney’s fees and costs, which even at the time the offer of judgment was made could have exceeded, and in fact did exceed, $2,000.1 Indeed, in Ambalu, defendant’s offer of judgment was for “$1,000, the costs of the action, and a reasonable attorney’s fee incurred up through the date of the offer as determined by the court.” The language of that offer mirrored the statute in a way that defendant OSI’s offer does not. By setting a cap on the total amount awarded, OSI clearly did not offer more than plaintiff could have received under the statute, with respect to the costs and attorney’s fees. The question though, is whether plaintiff has a “legally cognizable interest” in that portion of the award beyond $1,000. In other words, does plaintiffs interest in the suit end with the $1,000 in statutory damages, or do the costs and attorneys’ fees also “belong” to the plaintiff. I must conclude that, at least with respect to this statute, they do. In Teng v. Metropolitan Retail Recovery, 851 F.Supp. 61, 70 (E.D.N.Y.1994), Judge Spatt concluded that § 1692k(a)(3) mandated the recovery of “the costs of the action; together with a reasonable attorney’s fee as determined by the court,” by a prevailing plaintiff as a means of fulfilling the intent of Congress that the act should be enforced by debtors acting as private attorneys general. The Court also noted that several other courts had required an award of attorney’s fees even where violations were so minimal that statutory damages were not warranted. Id. The Court concluded that given the structure of the section, attorney’s fees should not be construed as a special or discretionary remedy. Id. at 71. See also Pipiles v. Credit Bureau of Lockport, 886 F.2d 22, 25 (2d Cir.1989) (mandating recovery of costs and attorney’s fees by a prevailing plaintiff); Graziano v. Harrison, 950 F.2d 107 (3d Cir.1991) (remanding for determination of attorney’s fees where District Court had denied an award because plaintiff had shown only a minimal violation of the FDCPA); Carroll v. Wolpoff & Abramson, 53 F.3d 626 (4th Cir.1995); Tolentino v. Friedman, 46 F.3d 645 (7th Cir.1995); Booth v. Collection Experts, Inc., 969 F.Supp. 1161 (E.D.Wis.1997); Jackson v. Peisner, 1994 U.S. Dist. LEXIS 14101 (E.D.Mich.1994). Because the availability of attorney’s fees and costs is so integral to the statute on which plaintiff brings suit, I hold on reconsideration that defendant’s offer of judgment did not constitute more than Wilner could have received under the statute. Wilner’s claim is thus not moot. In light of my holding that plaintiff may now proceed with his claim, I need not determine the amount of attorneys’ fees. I agree *324with defendants, however, that the figure proposed by plaintiffs counsel, Mr. Fishbein, is not justifiable. As I noted in my January 3, 2001 opinion, this is a routine filing under the Fair Debt Collection Practices Act, the provisions of which must be, by now, quite familial' to both Mr. Fishbein and his co-counsel, the firm of Edelman and Combs. Counsel’s efforts could not have resulted in the more than $12,000 in fees that plaintiff proposes should go to three different sets of attorneys. On this issue, it has recently come to my attention that last year, Judge Gleeson of the Eastern District questioned Adam Fishbein in open court whether his proposed fees reflected his use of “boilerplate” language in a motion for summary judgment on his client’s FDCPA claim. Laster v. Cole, No. 99-CV-2837, 2000 WL 863463 (E.D.N.Y. June 23, 2000). After first arguing that he had spent nine hours preparing the summary judgment motion in that case, Fishbein later admitted that he worked on the motion for only six hours, and that he added three additional hours to reflect the amount of time he would have spent if he had drafted the motion from scratch. Judge Gleeson found that Fishbein was in essence seeking a multiplyer for his accumulated expertise in this type of case. He found that, “rather than file an honest affirmation of services and ask for the multiplier, [Fishbein] inflated his billable hours and filed a perjurious affirmation.” Id. The Court ordered Fishbein to show cause why he should not be ordered to pay $600 — the amount by which he inflated his fee in the case — to the Clerk of the Court as a sanction for filing the false affirmation. Judge Gleeson decided not to impose the sanction, based on the following submission from Mr. Fishbein: It was with a great sense of embarrassment and shame that I left oral argument concerning plaintiffs fee application and upon receipt and publication of the decision. That decision has already accomplished what I think is an important goal in that I promise to make accurate representations of time in future matters before any Court.... I realize, as Your Honor pointed out, that I failed to indicate to the Court exactly the breakdown of the hours for time actually spent. I now know to set - forth the hours spent on a matter and then make a separate application for a multiplier based upon the results achieved in the matter being that I may have devoted my time in an efficient fashion by incorporating previous work product. I feel that the Court’s recent decision without the imposition of sanctions has given me pause to become more careful in practice so that I shall be able to continue and prevail in these matters. As a fairly young practitioner, I believe that whatever is the Court’s objective, its order to show cause has been accomplished without the actual imposition of the sanctions in that I have had the opportunity to devote this time to attempt to better explain myself to the Court. I respectfully request that the Court take the foregoing into consideration, and in a non-pedestrian fashion, wish to express my regret that the Court has had to devote its time to the within issue. Laster v. Cole, No. 99-CV-2837, 2000 WL 1091163 at *1 (E.D.N.Y. July 27, 2000). It does not appear that Mr. Fishbein has learned his lesson. Should plaintiff prevail, counsel would be well-advised to review his time sheets before resubmitting them to the court. 2. The Motion To Reconsider The Denial Of Class Certification Is Granted In my original decision, I declined to decide whether the usual rule that the mootness of the named plaintiffs claim rendered the class action moot, or whether these circumstances created an exception to that rule, because, on the record before me, plaintiff had not satisfied the prerequisites for class certification. Id. at 396. In particular, I held that plaintiff had failed to offer anything more than speculation on the issue of numerosity. Id. Plaintiff moves for reconsideration on the ground that defendant’s belatedly-filed responses to Wilner’s interrogatories (which were apparently transmitted to the Court via *325letter, rather than by a supplemental brief in support of the motion) demonstrated that some 14,120 letters in substantially the form of the letter sent to Wilner had been transmitted by OSI. OSI indicated that at least some of those letters would fall outside the relevant statute of limitations, but it offered no estimate of how many. Nonetheless, even assuming that actions relating to 50% of those letters were time-barred, the number more than satisfied the numerosity requirement. See Fed.R.Civ.P. 23; Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.), cert. denied, 515 U.S. 1122, 115 S.Ct. 2277, 132 L.Ed.2d 281 (1995) (recognizing that “numerosity” is presumed at a level of forty members). Thus, I will revisit the class certification motion. In addition to numerosity of parties, Rule 23 provides that [o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if there are questions of law or fact common to the class, the claims or defenses of the representative parties are typical of the claims or defenses of the class, and the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a); Savino v. Computer Credit Inc., 164 F.3d 81, 86-87 (2d Cir.1998) (applying Rule 23 to FDCPA claims); Macarz v. Transworld Systems, Inc., 193 F.R.D. 46 (D.Conn.2000) (same). Additionally, plaintiff must satisfy one of the three criteria set forth in Rule 23(b). Comer v. Cisneros, 37 F.3d 775, 796 (2d Cir.1994). Like other courts in this circuit which have considered the applicability of the class action to lawsuits brought under the FDCPA, I have no trouble concluding that the commonality and typicality requirements are met. The primary question of law and fact in this case is whether the notices sent to the proposed class, which are the same as or similar to the notice sent to Wilner, violate the statute. See, e.g., Savino v. Computer Credit, Inc., 173 F.R.D. 346, 352 (E.D.N.Y.1997); Macarz, 193 F.R.D. at 49; D’Alauro v. G.C. Services Ltd. Partnership, 168 F.R.D. 451, 456 (E.D.N.Y.1996). For the same reason— Wilner’s claim is typical of those in the class. See In re Drexel Burnham Lambert Corp., Inc., 960 F.2d 285, 291 (2d Cir.1992) (finding requirement satisfied when each class members’ claim arises from the same course of events and each class member makes same legal arguments to prove the defendant’s liability); Savino, 173 F.R.D. at 352-53. However, there is not enough evidence in the record from which I can decide the question of Wilner’s adequacy as a class representative. Thus, even though I grant the motion for reconsideration, I cannot certify a claim at this time. Adequacy of representation is measured by two standards: (1) class counsel must be qualified, experienced and generally able to conduct the litigation, see In re Joint Eastern & Southern Dist. Asbestos Litigation, 78 F.3d 764, 778 (2d Cir.1996), and (2) the class members must not have interests that are antagonistic to one another, see Drexel, 960 F.2d at 291. My concerns are the same as those of other courts in the Second Circuit which have refused to certify similar proposed classes: plaintiffs understanding of and involvement in his claims, and the fee arrangement between the named plaintiff and his counsel. See Berrios v. Sprint Corp., No CV-97-0081, 1998 WL 199842 at *14-*17 (E.D.N.Y. March 16, 1998); Weber v. Goodman, 9 F.Supp.2d 163, (E.D.N.Y.1998). The courts in Berrios and Weber were both concerned about the extent to which plaintiff was able to “control” class counsel. In particular, there was evidence that plaintiffs did not adequately understand the merits of pursuing the case as a class action, and that plaintiffs’ counsel may have given plaintiff a false impression of the relative merits of pursuing an individual action (in which plaintiffs could recover up to $1,000 in statutory damages) versus joining as a class (for which plaintiffs might only receive a few dollars). Berrios, 1998 WL 199842 at *14; Weber, 9 F.Supp.2d at 172. Plaintiff has the burden of showing that Wilner is sufficiently involved in the case and has an adequate understanding of both his role in the case and the extent to which his recovery could be diminished if he pursues it as a class action. My second concern is that plaintiffs fee arrangement with his counsel does not vio*326late the ethical rules of this jurisdiction. Before certifying a class, courts often examine whether the litigation can be funded during the pendency of the case. Berrios, at *15, (citing Eisen, 417 U.S. at 178-79, 94 S.Ct. 2140). Recently, courts have accepted a funding mechanism whereby plaintiffs counsel agrees to pay all necessary costs, and the class representative agrees to pay a pro rata share of the costs should the suit be unsuccessful. Berrios, at *15 (citing cases); Harrison v. Great Springwaters of Am. Inc., 1997 WL 469996, at *8 (E.D.N.Y. June 18, 1997). As the court in Berrios explains: Under Disciplinary Rule 5-103(b) of the New York State Lawyer’s Code of Professional Responsibility, lawyers may advance the costs of litigation to a client provided that the client remains “ultimately liable.” 22 N.Y.C.R.R. § 1200.22. New York’s Rule 5-103(b) is identical to the Disciplinary Rule 5-103(b) of the ABA’s Model Code of Professional Responsibility. In an attempt to update the ethics rales, the ABA developed the Model Rules including Rule 1.8(e) which permits a lawyer to advance costs even though the client is not ultimately liable for the sums if the lawsuit fails. However, this Court applies the New York State Lawyer’s Code of Professional Responsibility as it is interpreted by the courts of the circuit. See Local Civil Rule 1.5(b)(5). Berrios, 1998 WL 199842 at *16. The court in Berrios held that “it is possible for plaintiff to comply with federal class action case law and New York’s disciplinary Rule 5-103(b) by accepting ultimate responsibility for her pro rata share of the costs and expenses of this suit.” Id. at *17. See also Weber, 9 F.Supp.2d at 174 (“[T]he cases [plaintiffs counsel] offer for the proposition that plaintiff need not be at all responsible for the costs and expenses of a class action occur in other districts where the local equivalent of Rule 5-103(b) does not apply.”) Because the fee arrangement between plaintiff and his counsel-did not require plaintiff to bear this responsibility, class certification was denied. Berrios, 1998 WL 199842 at *17; Weber, 9 F.Supp.2d at 174. This matter will be set for hearing on the issues delineated above. This constitutes the order and decision of the Court.
. In their objection to plaintiff counsel’s calculation of fees, even defendants propose a number higher than $2,000, albeit not much higher. Indeed, while I would significantly reduce plaintiffs proposed figure, I would set an amount greater than $2,000. | 11-26-2022 | [
"MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR RECONSIDERATION McMAHON, District Judge. On January 3, 2001, I ordered that judgment be entered against defendant OSI, and that plaintiff Wilner be awarded $1,000. In addition, I dismissed plaintiffs complaint for lack of subject matter jurisdiction (in that defendant, pursuant to Fed.R.Civ.P. 68, had offered plaintiff the full amount — $1,000— that plaintiff could hope to recover in this action), and I retained jurisdiction to set the amount of attorneys’ fees to be awarded to plaintiffs’ counsel. Wilner v. OSI Collection Services, Inc., 198 F.R.D. 393, 397 (S.D.N.Y. Jan.3, 2001). Counsel have moved for attorneys’ fees in the amount of $12,814.59, consisting of an award of $8,419.59 to the firm of Edelman, Combs & Latturner, an out-of-state firm, and $2,095.00 for Adam J. Fishbein, Esq., who appeared as local counsel. In addition, Mr. Fishbein has moved, by letter, for reconsideration of the Court’s order and decision dismissing the plaintiffs case and denying the motion for class certification.",
"Id. at 397. I will first address the motion for reconsideration. 1. The Motion For Reconsideration Of The Order Dismissing Wilner’s Claim As Moot Is Granted Plaintiff moves for reconsideration of the previous order dismissing this case as moot, on the grounds that defendant’s offer of judgment — “$3,000, inclusive of attorney’s fees and costs” — was not all that plaintiff could have received under the statute. By way of background, plaintiff alleges that he received a debt collection letter from defendant OSI that violates the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. The FDCPA limits the liability of a debt collector to “any actual damages sustained” by the claimant due to the debt collector’s violation of the Act, “such additional damages as the court may allow, but not exceeding $1,000,” and “costs of the action, together with a reasonable attorney’s fee as determined by the court.” 15 U.S.C.",
"§§ 1692k(a)(l), (2), (3). As Wilner has not alleged that he suffered any actual damages, his recovery is thus limited to the statutory damages. On October 27, 2000 (subsequent to plaintiffs motion for class certification), defendant served on Wilner a Rule 68 offer of judgment in the amount of $3,000, inclusive of all legal fees, disbursements and costs. Fed.R.Civ.P. 68. Rule 68 provides that: At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specific in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is *323accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs.",
"Id. Courts have held, based on the language of this rule, that when defendant offers “all that [a plaintiff can] hope to recover through [the] litigation, ‘there is no justification for taking the time of the court and the defendant in the pursuit of [a] minuscule individual elaim[ ] which defendant has ... satisfied.’ ” Ambalu v. Rosenblatt, 194 F.R.D. 451, (E.D.N.Y.2000) (requiring plaintiff to accept offer of judgment and dismissing plaintiffs Fair Debt Act claim) (quoting Abrams v. Interco Inc., 719 F.2d 23, 32 (2d Cir.1983)); see also Murphy v. Equifax Check Servs., Inc., 35 F.Supp.2d 200, 203 (D.Conn.1999) (dismissing plaintiffs Fair Debt Act claim because defendant “agreed to give the plaintiff full relief.”).",
"Following the reasoning of Ambalu v. Rosenblatt, 194 F.R.D. 451, 452 (E.D.N.Y.2000), I held that Wilner’s claim was moot, as he no longer had a “legally cognizable interest” in the outcome. Id. at 452. Plaintiff argues, however,, that his failure to accept the $3,000 offer of judgment did not render his claim moot because the Fair Debt Act allows for statutory damages of $1,000 and “reasonable” attorney’s fees and costs, which even at the time the offer of judgment was made could have exceeded, and in fact did exceed, $2,000.1 Indeed, in Ambalu, defendant’s offer of judgment was for “$1,000, the costs of the action, and a reasonable attorney’s fee incurred up through the date of the offer as determined by the court.” The language of that offer mirrored the statute in a way that defendant OSI’s offer does not. By setting a cap on the total amount awarded, OSI clearly did not offer more than plaintiff could have received under the statute, with respect to the costs and attorney’s fees. The question though, is whether plaintiff has a “legally cognizable interest” in that portion of the award beyond $1,000. In other words, does plaintiffs interest in the suit end with the $1,000 in statutory damages, or do the costs and attorneys’ fees also “belong” to the plaintiff.",
"I must conclude that, at least with respect to this statute, they do. In Teng v. Metropolitan Retail Recovery, 851 F.Supp. 61, 70 (E.D.N.Y.1994), Judge Spatt concluded that § 1692k(a)(3) mandated the recovery of “the costs of the action; together with a reasonable attorney’s fee as determined by the court,” by a prevailing plaintiff as a means of fulfilling the intent of Congress that the act should be enforced by debtors acting as private attorneys general. The Court also noted that several other courts had required an award of attorney’s fees even where violations were so minimal that statutory damages were not warranted. Id. The Court concluded that given the structure of the section, attorney’s fees should not be construed as a special or discretionary remedy. Id.",
"at 71. See also Pipiles v. Credit Bureau of Lockport, 886 F.2d 22, 25 (2d Cir.1989) (mandating recovery of costs and attorney’s fees by a prevailing plaintiff); Graziano v. Harrison, 950 F.2d 107 (3d Cir.1991) (remanding for determination of attorney’s fees where District Court had denied an award because plaintiff had shown only a minimal violation of the FDCPA); Carroll v. Wolpoff & Abramson, 53 F.3d 626 (4th Cir.1995); Tolentino v. Friedman, 46 F.3d 645 (7th Cir.1995); Booth v. Collection Experts, Inc., 969 F.Supp. 1161 (E.D.Wis.1997); Jackson v. Peisner, 1994 U.S. Dist. LEXIS 14101 (E.D.Mich.1994). Because the availability of attorney’s fees and costs is so integral to the statute on which plaintiff brings suit, I hold on reconsideration that defendant’s offer of judgment did not constitute more than Wilner could have received under the statute. Wilner’s claim is thus not moot.",
"In light of my holding that plaintiff may now proceed with his claim, I need not determine the amount of attorneys’ fees. I agree *324with defendants, however, that the figure proposed by plaintiffs counsel, Mr. Fishbein, is not justifiable. As I noted in my January 3, 2001 opinion, this is a routine filing under the Fair Debt Collection Practices Act, the provisions of which must be, by now, quite familial' to both Mr. Fishbein and his co-counsel, the firm of Edelman and Combs. Counsel’s efforts could not have resulted in the more than $12,000 in fees that plaintiff proposes should go to three different sets of attorneys. On this issue, it has recently come to my attention that last year, Judge Gleeson of the Eastern District questioned Adam Fishbein in open court whether his proposed fees reflected his use of “boilerplate” language in a motion for summary judgment on his client’s FDCPA claim.",
"Laster v. Cole, No. 99-CV-2837, 2000 WL 863463 (E.D.N.Y. June 23, 2000). After first arguing that he had spent nine hours preparing the summary judgment motion in that case, Fishbein later admitted that he worked on the motion for only six hours, and that he added three additional hours to reflect the amount of time he would have spent if he had drafted the motion from scratch. Judge Gleeson found that Fishbein was in essence seeking a multiplyer for his accumulated expertise in this type of case. He found that, “rather than file an honest affirmation of services and ask for the multiplier, [Fishbein] inflated his billable hours and filed a perjurious affirmation.” Id. The Court ordered Fishbein to show cause why he should not be ordered to pay $600 — the amount by which he inflated his fee in the case — to the Clerk of the Court as a sanction for filing the false affirmation.",
"Judge Gleeson decided not to impose the sanction, based on the following submission from Mr. Fishbein: It was with a great sense of embarrassment and shame that I left oral argument concerning plaintiffs fee application and upon receipt and publication of the decision. That decision has already accomplished what I think is an important goal in that I promise to make accurate representations of time in future matters before any Court.... I realize, as Your Honor pointed out, that I failed to indicate to the Court exactly the breakdown of the hours for time actually spent. I now know to set - forth the hours spent on a matter and then make a separate application for a multiplier based upon the results achieved in the matter being that I may have devoted my time in an efficient fashion by incorporating previous work product. I feel that the Court’s recent decision without the imposition of sanctions has given me pause to become more careful in practice so that I shall be able to continue and prevail in these matters. As a fairly young practitioner, I believe that whatever is the Court’s objective, its order to show cause has been accomplished without the actual imposition of the sanctions in that I have had the opportunity to devote this time to attempt to better explain myself to the Court. I respectfully request that the Court take the foregoing into consideration, and in a non-pedestrian fashion, wish to express my regret that the Court has had to devote its time to the within issue.",
"Laster v. Cole, No. 99-CV-2837, 2000 WL 1091163 at *1 (E.D.N.Y. July 27, 2000). It does not appear that Mr. Fishbein has learned his lesson. Should plaintiff prevail, counsel would be well-advised to review his time sheets before resubmitting them to the court. 2. The Motion To Reconsider The Denial Of Class Certification Is Granted In my original decision, I declined to decide whether the usual rule that the mootness of the named plaintiffs claim rendered the class action moot, or whether these circumstances created an exception to that rule, because, on the record before me, plaintiff had not satisfied the prerequisites for class certification. Id. at 396. In particular, I held that plaintiff had failed to offer anything more than speculation on the issue of numerosity. Id.",
"Plaintiff moves for reconsideration on the ground that defendant’s belatedly-filed responses to Wilner’s interrogatories (which were apparently transmitted to the Court via *325letter, rather than by a supplemental brief in support of the motion) demonstrated that some 14,120 letters in substantially the form of the letter sent to Wilner had been transmitted by OSI. OSI indicated that at least some of those letters would fall outside the relevant statute of limitations, but it offered no estimate of how many. Nonetheless, even assuming that actions relating to 50% of those letters were time-barred, the number more than satisfied the numerosity requirement. See Fed.R.Civ.P. 23; Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.",
"), cert. denied, 515 U.S. 1122, 115 S.Ct. 2277, 132 L.Ed.2d 281 (1995) (recognizing that “numerosity” is presumed at a level of forty members). Thus, I will revisit the class certification motion. In addition to numerosity of parties, Rule 23 provides that [o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if there are questions of law or fact common to the class, the claims or defenses of the representative parties are typical of the claims or defenses of the class, and the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a); Savino v. Computer Credit Inc., 164 F.3d 81, 86-87 (2d Cir.1998) (applying Rule 23 to FDCPA claims); Macarz v. Transworld Systems, Inc., 193 F.R.D. 46 (D.Conn.2000) (same).",
"Additionally, plaintiff must satisfy one of the three criteria set forth in Rule 23(b). Comer v. Cisneros, 37 F.3d 775, 796 (2d Cir.1994). Like other courts in this circuit which have considered the applicability of the class action to lawsuits brought under the FDCPA, I have no trouble concluding that the commonality and typicality requirements are met. The primary question of law and fact in this case is whether the notices sent to the proposed class, which are the same as or similar to the notice sent to Wilner, violate the statute.",
"See, e.g., Savino v. Computer Credit, Inc., 173 F.R.D. 346, 352 (E.D.N.Y.1997); Macarz, 193 F.R.D. at 49; D’Alauro v. G.C. Services Ltd. Partnership, 168 F.R.D. 451, 456 (E.D.N.Y.1996). For the same reason— Wilner’s claim is typical of those in the class. See In re Drexel Burnham Lambert Corp., Inc., 960 F.2d 285, 291 (2d Cir.1992) (finding requirement satisfied when each class members’ claim arises from the same course of events and each class member makes same legal arguments to prove the defendant’s liability); Savino, 173 F.R.D. at 352-53. However, there is not enough evidence in the record from which I can decide the question of Wilner’s adequacy as a class representative. Thus, even though I grant the motion for reconsideration, I cannot certify a claim at this time. Adequacy of representation is measured by two standards: (1) class counsel must be qualified, experienced and generally able to conduct the litigation, see In re Joint Eastern & Southern Dist. Asbestos Litigation, 78 F.3d 764, 778 (2d Cir.1996), and (2) the class members must not have interests that are antagonistic to one another, see Drexel, 960 F.2d at 291.",
"My concerns are the same as those of other courts in the Second Circuit which have refused to certify similar proposed classes: plaintiffs understanding of and involvement in his claims, and the fee arrangement between the named plaintiff and his counsel. See Berrios v. Sprint Corp., No CV-97-0081, 1998 WL 199842 at *14-*17 (E.D.N.Y. March 16, 1998); Weber v. Goodman, 9 F.Supp.2d 163, (E.D.N.Y.1998). The courts in Berrios and Weber were both concerned about the extent to which plaintiff was able to “control” class counsel. In particular, there was evidence that plaintiffs did not adequately understand the merits of pursuing the case as a class action, and that plaintiffs’ counsel may have given plaintiff a false impression of the relative merits of pursuing an individual action (in which plaintiffs could recover up to $1,000 in statutory damages) versus joining as a class (for which plaintiffs might only receive a few dollars).",
"Berrios, 1998 WL 199842 at *14; Weber, 9 F.Supp.2d at 172. Plaintiff has the burden of showing that Wilner is sufficiently involved in the case and has an adequate understanding of both his role in the case and the extent to which his recovery could be diminished if he pursues it as a class action. My second concern is that plaintiffs fee arrangement with his counsel does not vio*326late the ethical rules of this jurisdiction. Before certifying a class, courts often examine whether the litigation can be funded during the pendency of the case. Berrios, at *15, (citing Eisen, 417 U.S. at 178-79, 94 S.Ct.",
"2140). Recently, courts have accepted a funding mechanism whereby plaintiffs counsel agrees to pay all necessary costs, and the class representative agrees to pay a pro rata share of the costs should the suit be unsuccessful. Berrios, at *15 (citing cases); Harrison v. Great Springwaters of Am. Inc., 1997 WL 469996, at *8 (E.D.N.Y. June 18, 1997). As the court in Berrios explains: Under Disciplinary Rule 5-103(b) of the New York State Lawyer’s Code of Professional Responsibility, lawyers may advance the costs of litigation to a client provided that the client remains “ultimately liable.” 22 N.Y.C.R.R. § 1200.22. New York’s Rule 5-103(b) is identical to the Disciplinary Rule 5-103(b) of the ABA’s Model Code of Professional Responsibility. In an attempt to update the ethics rales, the ABA developed the Model Rules including Rule 1.8(e) which permits a lawyer to advance costs even though the client is not ultimately liable for the sums if the lawsuit fails. However, this Court applies the New York State Lawyer’s Code of Professional Responsibility as it is interpreted by the courts of the circuit.",
"See Local Civil Rule 1.5(b)(5). Berrios, 1998 WL 199842 at *16. The court in Berrios held that “it is possible for plaintiff to comply with federal class action case law and New York’s disciplinary Rule 5-103(b) by accepting ultimate responsibility for her pro rata share of the costs and expenses of this suit.” Id. at *17. See also Weber, 9 F.Supp.2d at 174 (“[T]he cases [plaintiffs counsel] offer for the proposition that plaintiff need not be at all responsible for the costs and expenses of a class action occur in other districts where the local equivalent of Rule 5-103(b) does not apply.”) Because the fee arrangement between plaintiff and his counsel-did not require plaintiff to bear this responsibility, class certification was denied. Berrios, 1998 WL 199842 at *17; Weber, 9 F.Supp.2d at 174. This matter will be set for hearing on the issues delineated above. This constitutes the order and decision of the Court. .",
"In their objection to plaintiff counsel’s calculation of fees, even defendants propose a number higher than $2,000, albeit not much higher. Indeed, while I would significantly reduce plaintiffs proposed figure, I would set an amount greater than $2,000."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8731719/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IN THE SUPREME COURT OF THE STATE OF DELAWARE
PAUL LACOMBE, § § No. 4, 2021 Defendant Below, § Appellant, § § v. § Court Below–Superior Court § of the State of Delaware STATE OF DELAWARE, § § Cr. ID No. 1112018546 (N) Plaintiff Below, § Appellee. §
Submitted: January 26, 2021 Decided: February 22, 2021
ORDER
On January 4, 2021, the appellant, Paul Lacombe, filed a notice of appeal from
the Superior Court’s November 25, 2020 order denying his third motion for
postconviction relief. Under Supreme Court Rule 6(a)(iv), a timely notice of appeal
should have been filed on or before December 28, 2020.1 On January 6, 2021, the
Senior Court Clerk issued, by certified mail, a notice directing Lacombe to show
cause why his appeal should not be dismissed as untimely filed. Lacombe received
the notice to show cause as evidenced by the undated return receipt that was filed
with the Court on January 13, 2021. A timely response was due on or before January
1 Because the thirtieth day fell on a legal holiday—December 25, 2020—the notice of appeal was due on or before the next business day, or December 28, 2020. Del. Supr. Ct. R. 11(a). 25, 2021.2 To date, Lacombe has not responded to the notice to show cause.
Therefore, dismissal of the appeal is deemed unopposed.
NOW, THEREFORE, IT IS HEREBY ORDERED, under Supreme Court
Rules 3(b)(2) and 29(b), that the appeal is DISMISSED.
BY THE COURT:
/s/ Karen L. Valihura Justice
2 See Del. Supr. Ct. R. 11(a). 2 | 02-23-2021 | [
"IN THE SUPREME COURT OF THE STATE OF DELAWARE PAUL LACOMBE, § § No. 4, 2021 Defendant Below, § Appellant, § § v. § Court Below–Superior Court § of the State of Delaware STATE OF DELAWARE, § § Cr. ID No. 1112018546 (N) Plaintiff Below, § Appellee. § Submitted: January 26, 2021 Decided: February 22, 2021 ORDER On January 4, 2021, the appellant, Paul Lacombe, filed a notice of appeal from the Superior Court’s November 25, 2020 order denying his third motion for postconviction relief. Under Supreme Court Rule 6(a)(iv), a timely notice of appeal should have been filed on or before December 28, 2020.1 On January 6, 2021, the Senior Court Clerk issued, by certified mail, a notice directing Lacombe to show cause why his appeal should not be dismissed as untimely filed. Lacombe received the notice to show cause as evidenced by the undated return receipt that was filed with the Court on January 13, 2021. A timely response was due on or before January 1 Because the thirtieth day fell on a legal holiday—December 25, 2020—the notice of appeal was due on or before the next business day, or December 28, 2020. Del.",
"Supr. Ct. R. 11(a). 25, 2021.2 To date, Lacombe has not responded to the notice to show cause. Therefore, dismissal of the appeal is deemed unopposed. NOW, THEREFORE, IT IS HEREBY ORDERED, under Supreme Court Rules 3(b)(2) and 29(b), that the appeal is DISMISSED. BY THE COURT: /s/ Karen L. Valihura Justice 2 See Del. Supr. Ct. R. 11(a). 2"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4662163/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 3:17-cv-01104-VLB Document 82-27 Filed 05/15/19 Page 1 of 3
Exhibit 28 Case 3:17-cv-01104-VLB Document 82-27 Filed 05/15/19 Page 2 of 3
Yale University Office of the Chair Department ofSpanish & Portuguese Camp11s address: 82-90 Wall Street P.O. Box 208204 Telephone: 203 432-1151 New Haven, Co11nectiwto6520-8204 Fax: 203 432-1178 February 19, 2008
Ms. Susan Byrne 5 West 21 st Street #5 New York, NY 10010
Dear Ms. Byrne:
I write to confirm our telephone conversation. The Department of Spanish and Portuguese is recommending your appointment as Assistant Professor of Spanish for a term of four years, from July 1, 2008 to June 30, 2012. The recommendation must now be approved by the Faculty of Arts and Sciences Executive Committee, whose recommendation must then be submitted for approval to the Joint Boards of Permanent Officer of the Faculty of Arts and Sciences. Thereafter, the appointment will be transmitted by the Provost for final approval by the Fellows of the Yale Corporation, the University's governing board. These steps are normally routine.
Your initial salary, effective July 1, 2008, would be $70,000. Although the salary represents compensation for the nine-month academic year, salary payments are divided into twelve equal installments, with the first installment to be paid on the last day of the initial month of appointment. Yale also offers .a generous package of health, retirement. and other benefits, as desc;ibed in the Faculty Handbook n{enti'oned below. --
Funds of up to $1,200 a year are available for you to attel\cl professional meetings at which you are asked to read a paper for chair a session.
The normal teaching load in our department is two courses per term for a total of four courses each year.
Yale has an extremely generous leave system and you will be eligible for a full year's leave at full pay in your 2 nd, 3rd , or 4 th year on the faculty after at least one full year of teaching.
Yale will cover ordinary and reasonable moving expenses for your household and office items in accordance with University policy. Before making any moving anangements, you should be sure to consult with the University's Transportation Manager, Diane Brown, who will help you coordinate and aITange payment for your move. She can be reached at diane.brown(@yale.edu or (203) 432-9961. The business adm inistrator in our depaiiment will also be available to offer assistance in helping to aITange your move here and she can be reached at joelle.siracuse(ci),yale.edu or at 203-432-115 1. , ,
Yale will provide you with a computer. These are standardlE!.ptop and desktop configurations that are fully supported on campHs and willb'e upgraded on a regular schedule. For more details, please refer to: http://w\""'v.yale.cclu/fsp/doco/standarcls.h tml.
INITIAL DISCOVERY PROTOCOLS P710 Case 3:17-cv-01104-VLB Document 82-27 Filed 05/15/19 Page 3 of 3
Letter to Ms. Susan Byrne from Prof Roberto Gonzalez Echevarria, page 2 of2 February 19, 2008
The appointment as Assistant Professor, as I have indicated, would be for a term of four years. A description of Yale's ladder faculty ranks, incl ucling expectations and schedules for reappointment and promotion, information on leave policy, fringe benefits, and other matters are described Faculty Handbook, which can be foundon the web at http://www.yale.edu/provost/html/facultyhb.html is of continuing impo11ance to all faculty members, and because the policies it contains represent essential employment understanding between you and the University, I urge you to read it with care. If you decide to join us, you will be asked to keep up with the revisions of it that will be posted from time to time.
In addition, we have recently modified our policies on appointments and promotion. These changes can be viewed at: http://w-ww.yale.edu/gateways/fas tenure report.pelf.
Let me know if you have any questions or concerns about the terms of your appointment as I have described them here.
I want to assure you that my colleagues and I are enthusiastic about the prospects of having you as our colleague and we are looking forward to your a1Tival to Yale.
cc: Associate Provost Emily P. Bakemeier
INITIAL DISCOVERY PROTOCOLS P711 | 2019-05-15 | [
"Case 3:17-cv-01104-VLB Document 82-27 Filed 05/15/19 Page 1 of 3 Exhibit 28 Case 3:17-cv-01104-VLB Document 82-27 Filed 05/15/19 Page 2 of 3 Yale University Office of the Chair Department ofSpanish & Portuguese Camp11s address: 82-90 Wall Street P.O. Box 208204 Telephone: 203 432-1151 New Haven, Co11nectiwto6520-8204 Fax: 203 432-1178 February 19, 2008 Ms. Susan Byrne 5 West 21 st Street #5 New York, NY 10010 Dear Ms. Byrne: I write to confirm our telephone conversation. The Department of Spanish and Portuguese is recommending your appointment as Assistant Professor of Spanish for a term of four years, from July 1, 2008 to June 30, 2012. The recommendation must now be approved by the Faculty of Arts and Sciences Executive Committee, whose recommendation must then be submitted for approval to the Joint Boards of Permanent Officer of the Faculty of Arts and Sciences.",
"Thereafter, the appointment will be transmitted by the Provost for final approval by the Fellows of the Yale Corporation, the University's governing board. These steps are normally routine. Your initial salary, effective July 1, 2008, would be $70,000. Although the salary represents compensation for the nine-month academic year, salary payments are divided into twelve equal installments, with the first installment to be paid on the last day of the initial month of appointment. Yale also offers .a generous package of health, retirement. and other benefits, as desc;ibed in the Faculty Handbook n{enti'oned below. -- Funds of up to $1,200 a year are available for you to attel\\cl professional meetings at which you are asked to read a paper for chair a session. The normal teaching load in our department is two courses per term for a total of four courses each year.",
"Yale has an extremely generous leave system and you will be eligible for a full year's leave at full pay in your 2 nd, 3rd , or 4 th year on the faculty after at least one full year of teaching. Yale will cover ordinary and reasonable moving expenses for your household and office items in accordance with University policy. Before making any moving anangements, you should be sure to consult with the University's Transportation Manager, Diane Brown, who will help you coordinate and aITange payment for your move. She can be reached at diane.brown(@yale.edu or (203) 432-9961. The business adm inistrator in our depaiiment will also be available to offer assistance in helping to aITange your move here and she can be reached at joelle.siracuse(ci),yale.edu or at 203-432-115 1. , , Yale will provide you with a computer. These are standardlE!.ptop and desktop configurations that are fully supported on campHs and willb'e upgraded on a regular schedule. For more details, please refer to: http://w\\\"\"'v.yale.cclu/fsp/doco/standarcls.h tml. INITIAL DISCOVERY PROTOCOLS P710 Case 3:17-cv-01104-VLB Document 82-27 Filed 05/15/19 Page 3 of 3 Letter to Ms. Susan Byrne from Prof Roberto Gonzalez Echevarria, page 2 of2 February 19, 2008 The appointment as Assistant Professor, as I have indicated, would be for a term of four years.",
"A description of Yale's ladder faculty ranks, incl ucling expectations and schedules for reappointment and promotion, information on leave policy, fringe benefits, and other matters are described Faculty Handbook, which can be foundon the web at http://www.yale.edu/provost/html/facultyhb.html is of continuing impo11ance to all faculty members, and because the policies it contains represent essential employment understanding between you and the University, I urge you to read it with care. If you decide to join us, you will be asked to keep up with the revisions of it that will be posted from time to time. In addition, we have recently modified our policies on appointments and promotion. These changes can be viewed at: http://w-ww.yale.edu/gateways/fas tenure report.pelf. Let me know if you have any questions or concerns about the terms of your appointment as I have described them here.",
"I want to assure you that my colleagues and I are enthusiastic about the prospects of having you as our colleague and we are looking forward to your a1Tival to Yale. cc: Associate Provost Emily P. Bakemeier INITIAL DISCOVERY PROTOCOLS P711"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/98145080/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 12a0076n.06 FILED No. 10-5927 Jan 20, 2012 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT
L-S INDUSTRIES, INC., ) ) ON APPEAL FROM THE Plaintiff/Counter-Defendant/Appellee ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN v. ) DISTRICT OF TENNESSEE ) J. CHRISTOPHER MATLACK, ) OPINION ) Defendant/Counter-Plaintiff/Appellant ) ) v. ) ) WILLIAM HUGHES ) ) Counter-Defendant/Appellee )
BEFORE: MOORE and GRIFFIN, Circuit Judges; and QUIST, Senior District Judge.*
Quist, District Judge.
I. BACKGROUND
After a four-day jury trial, the jury found that Defendant Matlack had breached his fiduciary
duty of loyalty to his former employer, Plaintiff L-S Industries (“LSI”), and awarded LSI $131,500.
The jury also found that LSI and Counter-Defendant William Hughes, President of LSI, had
breached the contract according to which Matlack received his bonus compensation. The jury
* Honorable Gordon J. Quist, United States Senior District Judge for the Western District of Michigan, sitting by designation. awarded Matlack $130,500 for his breach of contract counter-claim. The district court denied
Matlack’s motion for prejudgment interest on his $130,500 jury award. (R. 123.) The sole issue on
appeal is whether the district court abused its discretion in denying Matlack prejudgment interest on
his breach of contract award.
II. ANALYSIS
The district court had subject matter jurisdiction in this diversity case pursuant to 28 U.S.C.
§ 1332. “There is no dispute that in a diversity action the question of prejudgment interest must be
determined under state law.” Daily v. Gusto Records, Inc., 14 F. App’x 579, 591 (6th Cir. 2001)
(citing Mass. Benefit Ass’n v. Miles, 137 U.S. 689 (1891)).
The award of prejudgment interest is within the sound discretion of the trial court, and the
decision will not be disturbed upon appellate review unless the record reveals a manifest and
palpable abuse of discretion. Engert v. Peerless Ins. Co., 382 S.W.2d 541, 550-51 (Tenn. Ct. App.
1964); see also Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 333 (6th Cir. 2007)
and Sparton Tech. Inc. v. Util-Link, LLC, 248 F. App’x 684, 693 (6th Cir. 2007) (applying Tennessee
law). “Generally stated, the abuse of discretion standard does not authorize an appellate court to
merely substitute its judgment for that of the trial court.” In re Estate of Ladd, 247 S.W.3d 628, 645
(Tenn. Ct. App. 2007) (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998)). “A trial
court acts within its discretion when it applies the correct legal standard and reaches a decision that
is not clearly unreasonable.” Bogan v. Bogan, 60 S.W.3d 721, 733 (Tenn. 2001).
First, the district court identified the correct legal standard. The Tennessee Supreme Court
in Myint articulated the following standard regarding the award of prejudgment interest:
Several principles guide trial courts in exercising their discretion to award or deny
2 prejudgment interest. Foremost are the principles of equity. Tenn. Code Ann. § 47- 14-123. Simply stated, the court must decide whether the award of prejudgment interest is fair, given the particular circumstances of the case. In reaching an equitable decision, a court must keep in mind that the purpose of awarding the interest is to fully compensate a plaintiff for the loss of the use of funds to which he or she was legally entitled, not to penalize a defendant for wrongdoing.
Myint, 970 S.W.2d at 927 (citations omitted) (emphasis added); see also Tenn. Code. Ann. § 47-14-
123 (authorizing trial courts to award prejudgment interest “in accordance with principles of
equity”). Moreover, “[t]rial courts are afforded a great deal of discretion and are entitled to
deference regarding the determination of whether to award prejudgment interest.” Int’l Flight Ctr.
v. City of Murfreesboro, 45 S.W.3d 565, 573 (Tenn. Ct. App. 2000) (citations omitted).
Second, the district court applied this principle in a reasonable manner; the record certainly
does not reveal a manifest and palpable abuse of discretion. In accord with Myint, the district court
said that under the “particular circumstances” of this case it would be “unfair” to award prejudgment
interest to Matlack because, given the jury award, Matlack did not need to be more “fully
compensated.” Moreover, under the circumstances, awarding Matlack prejudgment interest would
“penalize” LSI, rather than more fully compensate Matlack. These are entirely reasonable assertions
given the jury’s findings and overall decision to award LSI more money than Matlack. In sum, the
district court exercised its discretion by weighing the equities of the case to decide that prejudgment
interest would be unfair in this instance.
Matlack’s arguments that the district court applied the incorrect legal standard are unavailing.
First, in Scholz v. S.B. International, Inc., 40 S.W.3d 78 (Tenn. Ct. App. 2000), the court gave three
examples where prejudgment interest may be inappropriate, but it did not limit a court’s ability to
deny prejudgement interest in only those three circumstances. Id. at 83 (“Prejudgment interest may
3 at times be inappropriate such as . . . .” (emphasis added)). Indeed, the three circumstances in Myint
do “not represent an all inclusive list of the reasons that could justify a court’s denial of prejudgment
interest.” Story v. Lanier, 166 S.W.3d 167, 182 (Tenn. Ct. App. 2004). Second, Matlack’s argument
that the district court applied a Tennessee Rule of Civil Procedure simply because the district court
used the words “prevailing parties” is conjecture. As discussed, the district court applied Myint,
which is still the controlling substantive law in Tennessee on this matter.
III. CONCLUSION
The district court did not abuse its discretion by denying Matlack prejudgment interest.
Therefore, the district court is AFFIRMED.
4 | 09-22-2015 | [
"NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 12a0076n.06 FILED No. 10-5927 Jan 20, 2012 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT L-S INDUSTRIES, INC., ) ) ON APPEAL FROM THE Plaintiff/Counter-Defendant/Appellee ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN v. ) DISTRICT OF TENNESSEE ) J. CHRISTOPHER MATLACK, ) OPINION ) Defendant/Counter-Plaintiff/Appellant ) ) v. ) ) WILLIAM HUGHES ) ) Counter-Defendant/Appellee ) BEFORE: MOORE and GRIFFIN, Circuit Judges; and QUIST, Senior District Judge.",
"* Quist, District Judge. I. BACKGROUND After a four-day jury trial, the jury found that Defendant Matlack had breached his fiduciary duty of loyalty to his former employer, Plaintiff L-S Industries (“LSI”), and awarded LSI $131,500. The jury also found that LSI and Counter-Defendant William Hughes, President of LSI, had breached the contract according to which Matlack received his bonus compensation. The jury * Honorable Gordon J. Quist, United States Senior District Judge for the Western District of Michigan, sitting by designation. awarded Matlack $130,500 for his breach of contract counter-claim. The district court denied Matlack’s motion for prejudgment interest on his $130,500 jury award.",
"(R. 123.) The sole issue on appeal is whether the district court abused its discretion in denying Matlack prejudgment interest on his breach of contract award. II. ANALYSIS The district court had subject matter jurisdiction in this diversity case pursuant to 28 U.S.C. § 1332. “There is no dispute that in a diversity action the question of prejudgment interest must be determined under state law.” Daily v. Gusto Records, Inc., 14 F. App’x 579, 591 (6th Cir.",
"2001) (citing Mass. Benefit Ass’n v. Miles, 137 U.S. 689 (1891)). The award of prejudgment interest is within the sound discretion of the trial court, and the decision will not be disturbed upon appellate review unless the record reveals a manifest and palpable abuse of discretion. Engert v. Peerless Ins. Co., 382 S.W.2d 541, 550-51 (Tenn. Ct. App. 1964); see also Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 333 (6th Cir. 2007) and Sparton Tech. Inc. v. Util-Link, LLC, 248 F. App’x 684, 693 (6th Cir. 2007) (applying Tennessee law). “Generally stated, the abuse of discretion standard does not authorize an appellate court to merely substitute its judgment for that of the trial court.” In re Estate of Ladd, 247 S.W.3d 628, 645 (Tenn. Ct. App.",
"2007) (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998)). “A trial court acts within its discretion when it applies the correct legal standard and reaches a decision that is not clearly unreasonable.” Bogan v. Bogan, 60 S.W.3d 721, 733 (Tenn. 2001). First, the district court identified the correct legal standard. The Tennessee Supreme Court in Myint articulated the following standard regarding the award of prejudgment interest: Several principles guide trial courts in exercising their discretion to award or deny 2 prejudgment interest. Foremost are the principles of equity. Tenn. Code Ann. § 47- 14-123. Simply stated, the court must decide whether the award of prejudgment interest is fair, given the particular circumstances of the case. In reaching an equitable decision, a court must keep in mind that the purpose of awarding the interest is to fully compensate a plaintiff for the loss of the use of funds to which he or she was legally entitled, not to penalize a defendant for wrongdoing.",
"Myint, 970 S.W.2d at 927 (citations omitted) (emphasis added); see also Tenn. Code. Ann. § 47-14- 123 (authorizing trial courts to award prejudgment interest “in accordance with principles of equity”). Moreover, “[t]rial courts are afforded a great deal of discretion and are entitled to deference regarding the determination of whether to award prejudgment interest.” Int’l Flight Ctr. v. City of Murfreesboro, 45 S.W.3d 565, 573 (Tenn. Ct. App. 2000) (citations omitted). Second, the district court applied this principle in a reasonable manner; the record certainly does not reveal a manifest and palpable abuse of discretion. In accord with Myint, the district court said that under the “particular circumstances” of this case it would be “unfair” to award prejudgment interest to Matlack because, given the jury award, Matlack did not need to be more “fully compensated.” Moreover, under the circumstances, awarding Matlack prejudgment interest would “penalize” LSI, rather than more fully compensate Matlack. These are entirely reasonable assertions given the jury’s findings and overall decision to award LSI more money than Matlack.",
"In sum, the district court exercised its discretion by weighing the equities of the case to decide that prejudgment interest would be unfair in this instance. Matlack’s arguments that the district court applied the incorrect legal standard are unavailing. First, in Scholz v. S.B. International, Inc., 40 S.W.3d 78 (Tenn. Ct. App. 2000), the court gave three examples where prejudgment interest may be inappropriate, but it did not limit a court’s ability to deny prejudgement interest in only those three circumstances. Id.",
"at 83 (“Prejudgment interest may 3 at times be inappropriate such as . . . .” (emphasis added)). Indeed, the three circumstances in Myint do “not represent an all inclusive list of the reasons that could justify a court’s denial of prejudgment interest.” Story v. Lanier, 166 S.W.3d 167, 182 (Tenn. Ct. App. 2004). Second, Matlack’s argument that the district court applied a Tennessee Rule of Civil Procedure simply because the district court used the words “prevailing parties” is conjecture. As discussed, the district court applied Myint, which is still the controlling substantive law in Tennessee on this matter. III. CONCLUSION The district court did not abuse its discretion by denying Matlack prejudgment interest. Therefore, the district court is AFFIRMED. 4"
]
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A.G. Trickett, died testate March 11, 1925, a resident of Whittier, California, and his holographic will was admitted to probate in the superior court of the county of Los Angeles. This is an appeal from a decree of distribution. The decedent was survived by his widow, Annie G. Trickett; his four children, Mary P. Sidwell, Charles W. *Page 22 Trickett, Francis A. Nutt, and Maggie R. Shahan; his three grandchildren, Jessie Neva O'Dell, DeRoy Eugene Colt, and Demi Morgan Colt, the issue of two predeceased daughters of the decedent. The will purported to devise and to bequeath a life estate to testator's widow in certain real property and in certain outstanding obligations due to the testator, with remainder over to his four children. These bequests were supplemented by a general residuary clause which reads as follows: "and all other property I may have hold at that time [the time of his death] is to be divided amongst the four children mentioned if living at that time if any of them should dye then to be divided between the rest living not their heirs or any other relatives or friends of mine." The will does not in terms mention or provide for the three grandchildren above mentioned. They are the appellants, and the point is made in their behalf that they, being among the heirs at law of the testator and he having failed to provide for them in his will or to indicate that such omission was intentional, are entitled under the provisions of section 1307 of the Civil Code to share in his estate as if he had died intestate. That code section provides: "When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, has the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in the preceding section." The quoted code section places a child and the issue of a deceased child in the same category, so that if no provision be made for them in the will of a decedent they are entitled to share in his estate the same as though no will had been made, unless it appears that such omission was intentional. The intention of the testator to omit such children must be determined from the terms of the will itself, and parol evidence may not be resorted to for the purpose of showing the intention of the testator (Estate of Stevens,83 Cal. 322 [17 Am. St. Rep. 252, 23 P. 379]; Estate of Utz,43 Cal. 200; Bush v. Lindsey, 44 Cal. 121; Estate of Wardell,57 Cal. 484; Rhoton v. Blevin, 99 Cal. 645 [34 P. 513]; Inre Salmon, 107 Cal. 614 [48 Am. St. Rep. 164, 40 P. 1030]). We are limited, therefore, to the terms of the will under *Page 23 consideration for the determination of the question of whether or not decedent intentionally omitted appellants, his heirs at law, from his will. It must appear upon the face of the will not only that the omission was intentional, but "the words of the will must show that the testator has the persons omitted in his mind, and having them so in his mind, has omitted them from the provisions of the will." (Estate of Lindsay, 176 Cal. 238 [168 P. 113]; Estate of Minear, 180 Cal. 239 [180 P. 535];Estate of Callaghan, 119 Cal. 571 [39 L.R.A. 689, 51 P. 860];Estate of Hassell, 168 Cal. 287 [142 P. 838]; Payne v.Payne, 18 Cal. 291.) In Rhoton v. Blevin, supra, the testator was survived by his widow, four children, and three grandchildren, the issue of two deceased daughters. The material portions of the will, among other things, provided: "First knowing that my beloved wife, Ona Blevin, will ever continue the same kind, devoted mother to our children which she has so thoroughly proven herself on all occasions, I make no provision for said children further than herein mentioned, . . ." Although the testator did not refer to or in any way designate his grandchildren by name in the will, the court held that it appeared from the face of the will that the grandchildren were not unintentionally overlooked or omitted from the will, and that by the use of the word "children" the testator meant also the issue of his deceased daughters as well as his living children. In Estate of Hassell, supra, three children were not named or provided for in the will, but there was this provision: "Those of my heirs not herein mentioned has been omitted by me with full knowledge thereof." It was held that the intent of the testator as thus expressed was clearly sufficient to indicate that the omission was not unintentional. In this behalf the court said: "At law, while the word (heirs) may include others, it always includes the children of a decedent." In Estate of Lindsay,supra, a will, after giving all the testator's property to his wife, recited that the disposition was purposely made because he knew that she would provide for "their son" and then further declared: "Should any other person or persons present themselves claiming to be heirs of mine, I give and bequeath to such person or persons the sum of Five Dollars ($5.00)." The court held in that case that inasmuch as the testator was writing of persons *Page 24 claiming to be "heirs" he must have had in mind his illegitimate children of whom he had made a public acknowledgment, and the court said: "The will, read in the light of the law of succession, shows on its face that the testator had in mind the persons, or the very class of persons, here asserting a right to succeed to a portion of his estate. He did make provision for all such persons, and the appellants, accordingly, do not bring themselves within the terms of section 1307, which is operative only where the testator `omits to provide in his will for any of his children. . . .'" In Estate of Minear, supra, the will stated in part: (1) "I am a single man, I have never been married." (2) "Now, if there should be any other or others than the ones that I have named in my will above that claim to be my lawful heirs and can and do prove that they are to each of them I will $5.00 five dollars if there should be any such." The court said: "Taking the two provisions together, we think it is perfectly clear that what the testator in effect said was this: `I never have been married, therefore I have no children. But if any persons other than those named in my will prove they are my heirs (either as children or otherwise) I give each of them $5.00. The true construction of the will we believe to be that the testator intended to exclude from any substantial share in his estate anyone not named in his will, whether a child or otherwise." The rule of construction announced in those cases covers and controls the situation presented in the case at bar. From an examination in its entirety of the will in question, it appears to us that the intention of the testator was to permit only his wife and those of his children living at his death to share in his estate. The intent is sufficiently indicated, we think, by the words of the will itself. The declaration in the will was to the effect that the residue of the estate should go only to his living children, and that if any one of them should predecease him, then the share given to such child was to go to the others living at the time of his death and "not their heirs or any other relatives or friends of mine." It is palpable, it seems to us, that the testator intended only his living children to share in his estate and to exclude therefrom all other persons. Not only did the testator make the fact of his children being alive at the time of his death an express condition precedent to *Page 25 his bequest to his living children, but he added, also, the proviso directing to whom such estate should go in the event of the death of any of his children. He expressly excluded the issue of those living children named in the will who might predecease him, and placed the issue of said living children, in the event of the death of their parent, in the same situation, with relation to the deceased, as now stand the appellants. The clause excluding from participation in the testator's estate "any other relatives," considered and construed in the light of the meaning ordinarily and in law attributed to the words employed therein, is especially significant, for, coupled with the preceding clauses of the will, it indicates the testator's intention to exclude from his bounty all persons embraced within its terms. The testator presumably knew the law and therefore must be deemed to have used the word "relatives" in its legal sense. The word "relative" is ordinarily defined to mean "one that is connected by blood, affinity, relation" (Webster's Dictionary). And, in law, "the word `relatives' or `relations,' when used in a devise or bequest, should be construed, unless a contrary intention appears, as meaning those next of kin who, in cases of intestacy, would take under the statutes of distribution, . . ." (40 Cyc. 1458; Thompson v. Thornton, 197 Mass. 273 [83 N.E. 880]. See, also, Estate of Sowash, 62 Cal.App. 512 [217 P. 123].) Marked and measured by the meaning of the word "relatives" as employed in testamentary dispositions, the conclusion is inescapable that the testator in the instant case must have had in mind his blood relations, among whom, necessarily, were his grandchildren, the appellants herein, and consequently must have intended to exclude them from participation in his estate. The testator was emphatic in his declaration that no "other relatives" should take under his will, and, as was said inEstate of Lindsay, supra, "read in the light of the law of succession (sec. 1386, Civ. Code), the will shows on its face that the testator had in mind the very persons, or the very class of persons, here asserting a right to succeed to a portion of his estate." The general scheme of the will and the intent of the testator as manifested by the language of the will compel the conclusion that the testator failed to provide for appellants not because he was oblivious of their existence but, *Page 26 rather, because he did not desire them to share in his estate. Appellants, in support of their contention, cite and rely on the case of Hargadine v. Pulte, 27 Mo. 423. The will under consideration in that case was not in all respects similar to the will in the instant case. There the testator gave his entire estate to his wife and attempted to exclude "all and every person or persons." There was not apparent on the face of the will the sedulous discrimination between the living children and the grandchildren and the clear intent that testator wished only his living children to share in his bounty as appears in the will here under consideration. The ruling of the court in the case last cited is not reasoned in extenso and is practically rested upon the case of Bradley v. Bradley, 24 Mo. 311. In the latter case the principal provision of the will was as follows: "that my wife, Ann Bradley, be my sole heir to all my estate. . . ." No mention or reference was made to the children of the deceased nor was there anything on the face of the will indicating an intent on the part of the testator to exclude purposely his children. The Bradley case obviously is not pertinent to the point presented here. Hargadine v. Pulte,supra, was not cited, as counsel for appellants contend, by this court with approval in the Estate of Stevens, supra. The case of Bradley v. Bradley, supra, was there cited merely as affirmatory of the proposition that parole evidence is inadmissible to show the intent of the testator to exclude his children. In re Parrott's Estate, 45 Nev. 318 [203 P. 258], also relied upon by appellants, presents a will in which the testator declared that he had "no children," which in fact was not true. There was no recital in the will there, as in the will in the case at bar, evincing an intent to exclude all "other relatives." In none of the cases decided by this court and relied upon by appellants was there any declaration in the will of the testator, as in the instant case, that no other "heirs or any other relatives . . ." should share in the testator's bounty. InEstate of Stevens, supra, the testator failed to mention or provide for his daughter, but left a legacy to her child, the testator's grandson, and it was held that the fact that he mentioned his daughter's child did not necessarily imply that the daughter was in his mind and she was accordingly *Page 27 permitted to take as a pretermitted heir. In Bush v. Lindsey,supra, the will made no mention of or reference to the children of the testator. A grandson, to whom all the estate was given, was the only person named in the will. In Estate of Ross,140 Cal. 282 [73 P. 976], the testator mistakenly assumed that his son was alive, when in fact he had died leaving issue. No reference being made to the lawful heir, the issue of the deceased son, the grandson, was permitted to take as a pretermitted heir. In Estate of Utz, supra, the will made no provision for the testator's grandchildren nor was there any general or particular reference made to them as a class. InEstate of Van Wyck, 185 Cal. 49 [196 P. 50], provision was made for the testator's son and daughter, but no mention of a grandchild, the issue of a predeceased daughter, was made. InEstate of Matthews, 176 Cal. 576 [169 P. 233], provision was made in the will for a deceased daughter, and no reference having been made to the issue of said daughter, it was held that the latter was unintentionally excluded from the will. In Re Salmon,supra, the testator gave a small legacy to the respective widows of each of his deceased sons, but made no reference to the issue of said sons, and they were permitted to take as pretermitted heirs because the mere mentioning of the widows was held to be insufficient to manifest an intent to exclude the grandchildren. In Estate of Wardell, supra, testatrix made no provision for an illegitimate daughter. The court said: "Her name was not mentioned in it, and it does not appear by anything in the will itself that the omission was intentional." In short, the testamentary documents under consideration in the California cases cited by appellants and just considered and discussed failed to indicate in terms, or by necessary implication, that the testator intentionally made no provision for his heirs at law. The construction of the will and the distribution of the estate as decreed by the trial court in the instant case are in harmony with the requirements of the law and with the manifest intent of the testator. The decree is affirmed. Seawell, J., Waste, J., Lawlor, J., and Richards, J., concurred. *Page 28 | 07-05-2016 | [
"A.G. Trickett, died testate March 11, 1925, a resident of Whittier, California, and his holographic will was admitted to probate in the superior court of the county of Los Angeles. This is an appeal from a decree of distribution. The decedent was survived by his widow, Annie G. Trickett; his four children, Mary P. Sidwell, Charles W. *Page 22 Trickett, Francis A. Nutt, and Maggie R. Shahan; his three grandchildren, Jessie Neva O'Dell, DeRoy Eugene Colt, and Demi Morgan Colt, the issue of two predeceased daughters of the decedent. The will purported to devise and to bequeath a life estate to testator's widow in certain real property and in certain outstanding obligations due to the testator, with remainder over to his four children. These bequests were supplemented by a general residuary clause which reads as follows: \"and all other property I may have hold at that time [the time of his death] is to be divided amongst the four children mentioned if living at that time if any of them should dye then to be divided between the rest living not their heirs or any other relatives or friends of mine.\" The will does not in terms mention or provide for the three grandchildren above mentioned.",
"They are the appellants, and the point is made in their behalf that they, being among the heirs at law of the testator and he having failed to provide for them in his will or to indicate that such omission was intentional, are entitled under the provisions of section 1307 of the Civil Code to share in his estate as if he had died intestate.",
"That code section provides: \"When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, has the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in the preceding section.\" The quoted code section places a child and the issue of a deceased child in the same category, so that if no provision be made for them in the will of a decedent they are entitled to share in his estate the same as though no will had been made, unless it appears that such omission was intentional. The intention of the testator to omit such children must be determined from the terms of the will itself, and parol evidence may not be resorted to for the purpose of showing the intention of the testator (Estate of Stevens,83 Cal. 322 [17 Am.",
"St. Rep. 252, 23 P. 379]; Estate of Utz,43 Cal. 200; Bush v. Lindsey, 44 Cal. 121; Estate of Wardell,57 Cal. 484; Rhoton v. Blevin, 99 Cal. 645 [34 P. 513]; Inre Salmon, 107 Cal. 614 [48 Am. St. Rep. 164, 40 P. 1030]). We are limited, therefore, to the terms of the will under *Page 23 consideration for the determination of the question of whether or not decedent intentionally omitted appellants, his heirs at law, from his will. It must appear upon the face of the will not only that the omission was intentional, but \"the words of the will must show that the testator has the persons omitted in his mind, and having them so in his mind, has omitted them from the provisions of the will.\" (Estate of Lindsay, 176 Cal.",
"238 [168 P. 113]; Estate of Minear, 180 Cal. 239 [180 P. 535];Estate of Callaghan, 119 Cal. 571 [39 L.R.A. 689, 51 P. 860];Estate of Hassell, 168 Cal. 287 [142 P. 838]; Payne v.Payne, 18 Cal. 291.) In Rhoton v. Blevin, supra, the testator was survived by his widow, four children, and three grandchildren, the issue of two deceased daughters. The material portions of the will, among other things, provided: \"First knowing that my beloved wife, Ona Blevin, will ever continue the same kind, devoted mother to our children which she has so thoroughly proven herself on all occasions, I make no provision for said children further than herein mentioned, .",
". .\" Although the testator did not refer to or in any way designate his grandchildren by name in the will, the court held that it appeared from the face of the will that the grandchildren were not unintentionally overlooked or omitted from the will, and that by the use of the word \"children\" the testator meant also the issue of his deceased daughters as well as his living children. In Estate of Hassell, supra, three children were not named or provided for in the will, but there was this provision: \"Those of my heirs not herein mentioned has been omitted by me with full knowledge thereof.\" It was held that the intent of the testator as thus expressed was clearly sufficient to indicate that the omission was not unintentional. In this behalf the court said: \"At law, while the word (heirs) may include others, it always includes the children of a decedent.\" In Estate of Lindsay,supra, a will, after giving all the testator's property to his wife, recited that the disposition was purposely made because he knew that she would provide for \"their son\" and then further declared: \"Should any other person or persons present themselves claiming to be heirs of mine, I give and bequeath to such person or persons the sum of Five Dollars ($5.00).\"",
"The court held in that case that inasmuch as the testator was writing of persons *Page 24 claiming to be \"heirs\" he must have had in mind his illegitimate children of whom he had made a public acknowledgment, and the court said: \"The will, read in the light of the law of succession, shows on its face that the testator had in mind the persons, or the very class of persons, here asserting a right to succeed to a portion of his estate. He did make provision for all such persons, and the appellants, accordingly, do not bring themselves within the terms of section 1307, which is operative only where the testator `omits to provide in his will for any of his children. . . .'\" In Estate of Minear, supra, the will stated in part: (1) \"I am a single man, I have never been married.\" (2) \"Now, if there should be any other or others than the ones that I have named in my will above that claim to be my lawful heirs and can and do prove that they are to each of them I will $5.00 five dollars if there should be any such.\"",
"The court said: \"Taking the two provisions together, we think it is perfectly clear that what the testator in effect said was this: `I never have been married, therefore I have no children. But if any persons other than those named in my will prove they are my heirs (either as children or otherwise) I give each of them $5.00. The true construction of the will we believe to be that the testator intended to exclude from any substantial share in his estate anyone not named in his will, whether a child or otherwise.\" The rule of construction announced in those cases covers and controls the situation presented in the case at bar. From an examination in its entirety of the will in question, it appears to us that the intention of the testator was to permit only his wife and those of his children living at his death to share in his estate. The intent is sufficiently indicated, we think, by the words of the will itself.",
"The declaration in the will was to the effect that the residue of the estate should go only to his living children, and that if any one of them should predecease him, then the share given to such child was to go to the others living at the time of his death and \"not their heirs or any other relatives or friends of mine.\" It is palpable, it seems to us, that the testator intended only his living children to share in his estate and to exclude therefrom all other persons. Not only did the testator make the fact of his children being alive at the time of his death an express condition precedent to *Page 25 his bequest to his living children, but he added, also, the proviso directing to whom such estate should go in the event of the death of any of his children. He expressly excluded the issue of those living children named in the will who might predecease him, and placed the issue of said living children, in the event of the death of their parent, in the same situation, with relation to the deceased, as now stand the appellants.",
"The clause excluding from participation in the testator's estate \"any other relatives,\" considered and construed in the light of the meaning ordinarily and in law attributed to the words employed therein, is especially significant, for, coupled with the preceding clauses of the will, it indicates the testator's intention to exclude from his bounty all persons embraced within its terms. The testator presumably knew the law and therefore must be deemed to have used the word \"relatives\" in its legal sense. The word \"relative\" is ordinarily defined to mean \"one that is connected by blood, affinity, relation\" (Webster's Dictionary). And, in law, \"the word `relatives' or `relations,' when used in a devise or bequest, should be construed, unless a contrary intention appears, as meaning those next of kin who, in cases of intestacy, would take under the statutes of distribution, . .",
".\" (40 Cyc. 1458; Thompson v. Thornton, 197 Mass. 273 [83 N.E. 880]. See, also, Estate of Sowash, 62 Cal.App. 512 [217 P. 123].) Marked and measured by the meaning of the word \"relatives\" as employed in testamentary dispositions, the conclusion is inescapable that the testator in the instant case must have had in mind his blood relations, among whom, necessarily, were his grandchildren, the appellants herein, and consequently must have intended to exclude them from participation in his estate. The testator was emphatic in his declaration that no \"other relatives\" should take under his will, and, as was said inEstate of Lindsay, supra, \"read in the light of the law of succession (sec. 1386, Civ.",
"Code), the will shows on its face that the testator had in mind the very persons, or the very class of persons, here asserting a right to succeed to a portion of his estate.\" The general scheme of the will and the intent of the testator as manifested by the language of the will compel the conclusion that the testator failed to provide for appellants not because he was oblivious of their existence but, *Page 26 rather, because he did not desire them to share in his estate. Appellants, in support of their contention, cite and rely on the case of Hargadine v. Pulte, 27 Mo. 423. The will under consideration in that case was not in all respects similar to the will in the instant case. There the testator gave his entire estate to his wife and attempted to exclude \"all and every person or persons.\"",
"There was not apparent on the face of the will the sedulous discrimination between the living children and the grandchildren and the clear intent that testator wished only his living children to share in his bounty as appears in the will here under consideration. The ruling of the court in the case last cited is not reasoned in extenso and is practically rested upon the case of Bradley v. Bradley, 24 Mo. 311. In the latter case the principal provision of the will was as follows: \"that my wife, Ann Bradley, be my sole heir to all my estate. . . .\" No mention or reference was made to the children of the deceased nor was there anything on the face of the will indicating an intent on the part of the testator to exclude purposely his children. The Bradley case obviously is not pertinent to the point presented here.",
"Hargadine v. Pulte,supra, was not cited, as counsel for appellants contend, by this court with approval in the Estate of Stevens, supra. The case of Bradley v. Bradley, supra, was there cited merely as affirmatory of the proposition that parole evidence is inadmissible to show the intent of the testator to exclude his children. In re Parrott's Estate, 45 Nev. 318 [203 P. 258], also relied upon by appellants, presents a will in which the testator declared that he had \"no children,\" which in fact was not true. There was no recital in the will there, as in the will in the case at bar, evincing an intent to exclude all \"other relatives.\" In none of the cases decided by this court and relied upon by appellants was there any declaration in the will of the testator, as in the instant case, that no other \"heirs or any other relatives . . .\" should share in the testator's bounty. InEstate of Stevens, supra, the testator failed to mention or provide for his daughter, but left a legacy to her child, the testator's grandson, and it was held that the fact that he mentioned his daughter's child did not necessarily imply that the daughter was in his mind and she was accordingly *Page 27 permitted to take as a pretermitted heir.",
"In Bush v. Lindsey,supra, the will made no mention of or reference to the children of the testator. A grandson, to whom all the estate was given, was the only person named in the will. In Estate of Ross,140 Cal. 282 [73 P. 976], the testator mistakenly assumed that his son was alive, when in fact he had died leaving issue. No reference being made to the lawful heir, the issue of the deceased son, the grandson, was permitted to take as a pretermitted heir. In Estate of Utz, supra, the will made no provision for the testator's grandchildren nor was there any general or particular reference made to them as a class. InEstate of Van Wyck, 185 Cal. 49 [196 P. 50], provision was made for the testator's son and daughter, but no mention of a grandchild, the issue of a predeceased daughter, was made.",
"InEstate of Matthews, 176 Cal. 576 [169 P. 233], provision was made in the will for a deceased daughter, and no reference having been made to the issue of said daughter, it was held that the latter was unintentionally excluded from the will. In Re Salmon,supra, the testator gave a small legacy to the respective widows of each of his deceased sons, but made no reference to the issue of said sons, and they were permitted to take as pretermitted heirs because the mere mentioning of the widows was held to be insufficient to manifest an intent to exclude the grandchildren. In Estate of Wardell, supra, testatrix made no provision for an illegitimate daughter. The court said: \"Her name was not mentioned in it, and it does not appear by anything in the will itself that the omission was intentional.\"",
"In short, the testamentary documents under consideration in the California cases cited by appellants and just considered and discussed failed to indicate in terms, or by necessary implication, that the testator intentionally made no provision for his heirs at law. The construction of the will and the distribution of the estate as decreed by the trial court in the instant case are in harmony with the requirements of the law and with the manifest intent of the testator. The decree is affirmed. Seawell, J., Waste, J., Lawlor, J., and Richards, J., concurred. *Page 28"
]
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Citation Nr: 1440533
Decision Date: 09/11/14 Archive Date: 09/18/14
DOCKET NO. 12-26 507 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts
THE ISSUES
1. Entitlement to an initial rating higher than 50 percent prior to March 12, 2013 for posttraumatic stress disorder (PTSD), and higher than 70 percent from March 12, 2013, forward.
2. Entitlement to a total disability evaluation based on individual unemployability (TDIU), prior to March 12, 2013.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. Larson, Associate Counsel
INTRODUCTION
The Veteran had active service from February 1969 to October 1970.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts which granted the Veteran service connection for PTSD and assigned an initial rating of 50 percent effective January 1, 2008. The Veteran filed a timely Notice of Disagreement (NOD) and VA Form 9 Substantive Appeal regarding this initial rating assigned. He was then given a VA examination to assess the severity of his condition, which resulted in the RO granting him in a November 2013 rating decision a 70 percent rating effective March 12, 2013. As this increase resulted in a "staged" rating for the condition and did not represent a full grant of the benefits sought, it is presumed he continues to seek the highest possible rating for the PTSD and the claim is still on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993).
The Veteran requested a hearing before the Board. He was scheduled for a Travel Board hearing on May 21, 2014. However it appears the hearing was cancelled by the Veteran. He has not requested a new hearing and thus the Board is proceeding with the adjudication of the claim.
The Board also notes that the Veteran was granted a total disability rating based on individual unemployability in the November 2013 decision. Therefore, there is no need to address a derivative TDIU claim here.
FINDING OF FACT
During the pendency of the Veteran's claim, his PTSD has resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; near-continuous depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; and the inability to establish and maintain effective relationships.
CONCLUSIONS OF LAW
Entitlement to an initial rating of 70 percent for PTSD is granted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2013).
However, entitlement to a 100 percent rating either before or after March 12, 2013 is denied. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Higher rating for PTSD
Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. All reasonable doubt is resolved in the Veteran's favor. 38 C.F.R. § 4.3.
In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the evaluation is at issue, the 'present level' of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the 'present level' of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007).
Similarly, as is the case here, where a Veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence 'used to decide whether an original rating on appeal was erroneous...' Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, 'staged' ratings may be assigned for separate periods of time based on facts found. Id.
The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders-specifically under 38 C.F.R. § 4.130, DC 9411. In addition, the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) provides guidance for the nomenclature employed within 38 C.F.R. § 4.130.
When evaluating a mental disorder, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b).
Under the General Rating Formula, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411.
A 70 percent rating requires occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id.
The use of the phrase "such symptoms as," followed by a list of examples provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also 38 C.F.R. § 4.130.
The Federal Circuit recently clarified that the General Rating Formula for Mental Disorders requires not only (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency or duration; but also (2) that those symptoms cause the level of occupational and social impairment specified in the regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013).
In evaluating the evidence, the Board also has considered various Global Assessment of Functioning (GAF) scores contained in the DSM-IV which clinicians have assigned to a veteran. A GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence bearing on occupational and social impairment. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95.
Generally speaking, the higher the GAF score, the higher the overall functioning of the individual. A score of 60-51 is indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers.) A score of 50-41 illustrates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." A score of 40-31 is assigned for some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). DSM-IV at 46-47. See 38 C.F.R. § 4.130.
The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000).
Prior to March 12, 2013
The Veteran received VA treatment for his PTSD beginning in May 2008. In June 2008, his treating physician noted that his PTSD caused the following symptoms: nightmares; a foreshortened sense of future; sleep trouble; intense thoughts and flashbacks of his stressor; avoiding of thinking and talking about his stressor; emotional numbness; feeling detached from others; anger and irritability; hypervigilance; and an exaggerated startle response. The physician further described him as having a moderately anxious mood and congruent affect, as well as being neatly dressed and groomed and alert to person, place, and time. The Veteran's thought process was logical and organized, while his attention and concentration were within normal limits. The examiner denied there was any evidence of perceptual disturbance. When discussing the Veteran's depression, the physician noted that there were symptoms of irritability, loss of energy, feelings of worthlessness and guilt, self-criticalness, and endorsement of occasional, fleeting suicidal ideation without intent or plan. The physician listed his GAF score as 48.
The Veteran submitted a statement from a treating psychologist dated September 2008 that reiterates the majority of these symptoms.
A February 2009 VA treatment note for his PTSD states that he had some passive thoughts of death but no plan or intention. The Veteran discussed that his family was a source of support. He stated he continued to suffer from chronic sleeping trouble and chronic low self-esteem, but that the latter was related to his substance abuse.
The Veteran submitted another statement from a treating psychologist from May 2009. The psychologist detailed the Veteran's PTSD symptoms, including repeated nightmares, sleep impairment, anger and irritability, avoidance of crowds, inability to have close friends, refusal to make plans or arrangements for social events or vacations, and strong startle response. The psychologist stated that the PTSD symptoms caused major impairment in his thinking, judgment, and mood in everyday life. He further assigned a GAF score of 40. In the letter, the psychologist notes that the Veteran worked for 38 years as a phone company before taking a "somewhat forced retirement" in July 2007.
His VA treatment records contain those from his participation in group counseling in 2009, but they do not comment on his individual symptoms or the severity of his PTSD.
After review of the relevant evidence from this earlier period on appeal, the Board is granting the Veteran a higher initial rating of 70 percent. He presented evidence, namely the June 2008 VA treatment record that noted the presence of a fleeting suicidal ideation. Furthermore, the GAF score assigned represented serious symptoms, including for suicidal ideation, as well as serious impairment in social, occupational, or school functioning. This GAF score only decreased according the May 2009 letter from a treating psychologist and at that time was indicative of major impairment in several areas. This psychologist's conclusion that the Veteran's symptoms resulted in major impairment in thinking, judgment, and mood is contemplated by the criteria for a 70 percent rating according to the General Rating Formula for Mental Disorders. Thus, in resolving all reasonable doubt in the Veteran's favor, the Board is granting him the higher 70 percent rating.
The issue of entitlement to a schedular rating in excess of 70 percent for PTSD, for the entire appellate period, is addressed in the remand below.
However, he is not warranted the higher 100 percent rating, as there is no psychiatric medical evidence indicating that he suffered from "total occupational and social impairment." Furthermore, he has not produced evidence, lay or otherwise, indicating he experienced gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, is a persistent danger or hurting self or others, is intermittently unable to perform activities of daily living, has a disorientation to time or place, or suffers from memory loss for names of close relatives, occupation, or own name prior to March 12, 2013. The symptoms he has shown have not been of similar severity, frequency or duration to those contemplated by the higher 100 percent rating. Thus, an initial rating higher than 70 percent prior to March 12, 2013 is denied.
II. TDIU, prior to March 12, 2013
ORDER
Entitlement to an initial rating of 70 percent for PTSD is granted.
But entitlement to a rating higher than 70 percent, either before or since March 12, 2013, is denied.
____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 09-11-2014 | [
"Citation Nr: 1440533 Decision Date: 09/11/14 Archive Date: 09/18/14 DOCKET NO. 12-26 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an initial rating higher than 50 percent prior to March 12, 2013 for posttraumatic stress disorder (PTSD), and higher than 70 percent from March 12, 2013, forward. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU), prior to March 12, 2013. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran had active service from February 1969 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts which granted the Veteran service connection for PTSD and assigned an initial rating of 50 percent effective January 1, 2008. The Veteran filed a timely Notice of Disagreement (NOD) and VA Form 9 Substantive Appeal regarding this initial rating assigned. He was then given a VA examination to assess the severity of his condition, which resulted in the RO granting him in a November 2013 rating decision a 70 percent rating effective March 12, 2013.",
"As this increase resulted in a \"staged\" rating for the condition and did not represent a full grant of the benefits sought, it is presumed he continues to seek the highest possible rating for the PTSD and the claim is still on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran requested a hearing before the Board. He was scheduled for a Travel Board hearing on May 21, 2014. However it appears the hearing was cancelled by the Veteran. He has not requested a new hearing and thus the Board is proceeding with the adjudication of the claim. The Board also notes that the Veteran was granted a total disability rating based on individual unemployability in the November 2013 decision. Therefore, there is no need to address a derivative TDIU claim here. FINDING OF FACT During the pendency of the Veteran's claim, his PTSD has resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; near-continuous depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; and the inability to establish and maintain effective relationships. CONCLUSIONS OF LAW Entitlement to an initial rating of 70 percent for PTSD is granted. 38 U.S.C.A.",
"§§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2013). However, entitlement to a 100 percent rating either before or after March 12, 2013 is denied. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Higher rating for PTSD Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.",
"Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. All reasonable doubt is resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.",
"Where an increase in the evaluation is at issue, the 'present level' of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the 'present level' of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending.",
"Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, as is the case here, where a Veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence 'used to decide whether an original rating on appeal was erroneous...' Fenderson v. West, 12 Vet. App. 119, 126 (1999).",
"If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, 'staged' ratings may be assigned for separate periods of time based on facts found. Id. The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders-specifically under 38 C.F.R. § 4.130, DC 9411. In addition, the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) provides guidance for the nomenclature employed within 38 C.F.R. § 4.130.",
"When evaluating a mental disorder, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Under the General Rating Formula, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.",
"38 C.F.R. § 4.130, DC 9411. A 70 percent rating requires occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. The use of the phrase \"such symptoms as,\" followed by a list of examples provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation.",
"See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also 38 C.F.R. § 4.130. The Federal Circuit recently clarified that the General Rating Formula for Mental Disorders requires not only (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency or duration; but also (2) that those symptoms cause the level of occupational and social impairment specified in the regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). In evaluating the evidence, the Board also has considered various Global Assessment of Functioning (GAF) scores contained in the DSM-IV which clinicians have assigned to a veteran. A GAF score is a scaled rating reflecting the \"psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.\" Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence bearing on occupational and social impairment. See generally 38 C.F.R.",
"§ 4.126; VAOPGCPREC 10-95. Generally speaking, the higher the GAF score, the higher the overall functioning of the individual. A score of 60-51 is indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers.) A score of 50-41 illustrates \"[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).\" A score of 40-31 is assigned for some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work).",
"DSM-IV at 46-47. See 38 C.F.R. § 4.130. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.",
"See Timberlake v. Gober, 14 Vet. App. 122 (2000). Prior to March 12, 2013 The Veteran received VA treatment for his PTSD beginning in May 2008. In June 2008, his treating physician noted that his PTSD caused the following symptoms: nightmares; a foreshortened sense of future; sleep trouble; intense thoughts and flashbacks of his stressor; avoiding of thinking and talking about his stressor; emotional numbness; feeling detached from others; anger and irritability; hypervigilance; and an exaggerated startle response.",
"The physician further described him as having a moderately anxious mood and congruent affect, as well as being neatly dressed and groomed and alert to person, place, and time. The Veteran's thought process was logical and organized, while his attention and concentration were within normal limits. The examiner denied there was any evidence of perceptual disturbance. When discussing the Veteran's depression, the physician noted that there were symptoms of irritability, loss of energy, feelings of worthlessness and guilt, self-criticalness, and endorsement of occasional, fleeting suicidal ideation without intent or plan. The physician listed his GAF score as 48. The Veteran submitted a statement from a treating psychologist dated September 2008 that reiterates the majority of these symptoms. A February 2009 VA treatment note for his PTSD states that he had some passive thoughts of death but no plan or intention.",
"The Veteran discussed that his family was a source of support. He stated he continued to suffer from chronic sleeping trouble and chronic low self-esteem, but that the latter was related to his substance abuse. The Veteran submitted another statement from a treating psychologist from May 2009. The psychologist detailed the Veteran's PTSD symptoms, including repeated nightmares, sleep impairment, anger and irritability, avoidance of crowds, inability to have close friends, refusal to make plans or arrangements for social events or vacations, and strong startle response. The psychologist stated that the PTSD symptoms caused major impairment in his thinking, judgment, and mood in everyday life. He further assigned a GAF score of 40. In the letter, the psychologist notes that the Veteran worked for 38 years as a phone company before taking a \"somewhat forced retirement\" in July 2007.",
"His VA treatment records contain those from his participation in group counseling in 2009, but they do not comment on his individual symptoms or the severity of his PTSD. After review of the relevant evidence from this earlier period on appeal, the Board is granting the Veteran a higher initial rating of 70 percent. He presented evidence, namely the June 2008 VA treatment record that noted the presence of a fleeting suicidal ideation. Furthermore, the GAF score assigned represented serious symptoms, including for suicidal ideation, as well as serious impairment in social, occupational, or school functioning. This GAF score only decreased according the May 2009 letter from a treating psychologist and at that time was indicative of major impairment in several areas. This psychologist's conclusion that the Veteran's symptoms resulted in major impairment in thinking, judgment, and mood is contemplated by the criteria for a 70 percent rating according to the General Rating Formula for Mental Disorders. Thus, in resolving all reasonable doubt in the Veteran's favor, the Board is granting him the higher 70 percent rating. The issue of entitlement to a schedular rating in excess of 70 percent for PTSD, for the entire appellate period, is addressed in the remand below. However, he is not warranted the higher 100 percent rating, as there is no psychiatric medical evidence indicating that he suffered from \"total occupational and social impairment.\"",
"Furthermore, he has not produced evidence, lay or otherwise, indicating he experienced gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, is a persistent danger or hurting self or others, is intermittently unable to perform activities of daily living, has a disorientation to time or place, or suffers from memory loss for names of close relatives, occupation, or own name prior to March 12, 2013. The symptoms he has shown have not been of similar severity, frequency or duration to those contemplated by the higher 100 percent rating. Thus, an initial rating higher than 70 percent prior to March 12, 2013 is denied. II.",
"TDIU, prior to March 12, 2013 ORDER Entitlement to an initial rating of 70 percent for PTSD is granted. But entitlement to a rating higher than 70 percent, either before or since March 12, 2013, is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
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Notice of Pre-AIA or AIA Status 1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . 2. A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 08 September 2022 has been entered. Claims 21-22, 25-29, 31-32 and 34-38 have been amended. Claims 21-40 are pending, of which claims, of which claim 21, claim 27 and claim 34 are in independent form. Response to Argument 3. a. The Office will maintain the double rejection between the instant application and the patent 10,705,805. The Office suggested applicants to file an eTD between the instant application and the patent 10,705,805. b. Applicant's arguments with respect to claims 21-40 have been considered but are moot in view of the new ground(s) of rejection. Status of Claims 4. Claims 21-40 are pending, of which claims, of which claim 21, 27 and 34 are in independent form. The Office's Note: 5. The Office has cited particular paragraphs / columns and line numbers in the reference(s) applied to the claims above for the convenience of the Applicant. Although the specified citations are representative of the teachings of the art and are applied to specific limitations within the individual claim(s), other passages and figures may apply as well. It is respectfully requested from the Applicant in preparing responses, to fully consider the references in entirety as potentially teaching all or part of the claimed invention, as well as the context of the cited passages as taught by the prior art or relied upon by the Examiner. Allowable Subject Matter 6. The Office suggested applicants to add limitations from step 836 of fig. 8 (para [0085] from specification) into independent claims 21, 27 and 34 “wherein in response to a determination that a development phase is complete, initiate testing and deployment”. This amendment will place the application in condition for allowance.
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.
7. Claims 21-40 are rejected under 35 U.S.C. 103 as being obvious over Gilbert US 20070016650 (hereinafter Gilbert) further in view Jann US 20170331915 (hereinafter Jann). Claim 21 is rejected, Gilbert teaches a system, comprising: one or more processors (Gilbert, component 10 – SERVER and component 26A - Client); and a memory storing instructions that, when executed on or across the one or more processors, cause the one or more processors to implement an authoring service to(Gilbert, US 20070016650, paragraph [0036], One embodiment of the invention relates to an online teaching and authoring system that allows authors to collaborate as they develop content. In one embodiment, the learning content learning management system (LCMS), herein referred to as "the system," includes a server that stores content from multiple authors and includes a synchronization module that detects changes in content items developed by authors. If a change in content items is detected, the system sends a message to other authors notifying them of the changed content. Fig. 1 and paragraph [0069-0071], component 25A - Authoring Module.): provide an authoring interface configured to display respective representations of one or more user interface layouts via a connection to a client (Gilbert, fig. 1 and paragraph [0069-0070], Each authoring module 25 preferably includes a user interface module 27 and a messaging module 29. In the illustrated embodiment, the client 26A comprises an authoring module 25A that includes a user interface module 27A and a messaging module 29A. Paragraph [0071-0072], For example, suppose an Author A using client 26A "checks-out" and begins working on a particular content item or course material (e.g., a chapter of a course) from the server 12. The checked-out content item is a portion of a larger group of content items ("content") stored in the content database 14. At a granular level, the content comprises a plurality of objects having a hierarchical structure. The user interface module 27A is configured to update the client's display to show the object hierarchy of the content with a visual indication of the checked-out content item. Paragraph [0071], the authoring module 25) ; detect that the connection has been disconnected and reconnected(Gilbert, fig. 16, component 224 – User disconnects from server, component 226 – User reconnects to server and paragraph [0104]. Paragraph [0014], The method further comprises checking out a content object from the storage, disconnecting the client computer from the storage after checking out the content object, modifying the content object on the client computer while the client computer is disconnected from the storage, and reconnecting the client computer to the storage after modifying the content object.); in response to the connection being reconnected, determine whether a client-side version of the particular user interface layout at the client is unsynchronized with the updated repository version of the particular user interface layout (Gilbert, fig. 16, component 224 – User disconnects from server, component 226 – User reconnects to server and paragraph [0104], In a step 227, the server synchronizes with the client 26. In one embodiment, this step entails the server 12 running a diff procedure to determine the differences between the server's version of the content object and the version on the client 26. In such a case, synchronization involves transmitting the out-of-sync portions of the content object from the client 26 to the server 12. In another embodiment, the server 12 requests the content object in its entirety from the client 26 without running a diff procedure. The user may also check-in the object after step 226. Paragraph [0014], The method further comprises checking out a content object from the storage, disconnecting the client computer from the storage after checking out the content object, modifying the content object on the client computer while the client computer is disconnected from the storage, and reconnecting the client computer to the storage after modifying the content object. Gilbert, Fig. 2 and paragraph [0081], Synchronization of content between a client 26 and server 12 can be performed automatically in certain cases. FIG. 2 is a flow chart describing a process in which an author logs into the server 12 from a client 26, in a step 30. In a step 32, the author "opens" (i.e., indicates intent to access for viewing) a specific project for the first time on that particular client. At this stage, the author has not checked-out the project, but has merely requested to download its hierarchical outline for viewing. As used herein, a project describes educational content containing a plurality of different objects. The project may include one or more lessons (or courses) within a course curriculum, or may refer to the entire curriculum. In a step 34, the server 12 automatically synchronizes all of the content within that particular project onto the client 26. Gilbert, Fig. 3, component 44, Server automatically synchronizes object and all of its child objects to client. Fig. 3 and paragraph [0082], FIG. 3 is a flow chart describing a process in which the server 12 automatically synchronizes an object and its "child objects"... If the versions of the object and all child objects on the client 26 are not current with respect to those on the server 12, the object and all of its child objects are automatically synchronized with the server 12. Gilbert, Fig. 16 and paragraph [0104].); and based on a determination that the client-side version of the particular user interface layout is unsynchronized with the updated repository version of the particular user interface layout (Gilbert, fig. 16, component 224 – User disconnects from server, component 226 – User reconnects to server and paragraph [0104], In a step 227, the server synchronizes with the client 26. In one embodiment, this step entails the server 12 running a diff procedure to determine the differences between the server's version of the content object and the version on the client 26. In such a case, synchronization involves transmitting the out-of-sync portions of the content object from the client 26 to the server 12. In another embodiment, the server 12 requests the content object in its entirety from the client 26 without running a diff procedure. The user may also check-in the object after step 226. Gilbert, Fig. 2, component 34 – Server synchronizes all content within project onto client. Gilbert, Fig. 2 and paragraph [0081], Synchronization of content between a client 26 and server 12 can be performed automatically in certain cases. FIG. 2 is a flow chart describing a process in which an author logs into the server 12 from a client 26, in a step 30. In a step 32, the author "opens" (i.e., indicates intent to access for viewing) a specific project for the first time on that particular client. At this stage, the author has not checked-out the project, but has merely requested to download its hierarchical outline for viewing. As used herein, a project describes educational content containing a plurality of different objects. The project may include one or more lessons (or courses) within a course curriculum, or may refer to the entire curriculum. In a step 34, the server 12 automatically synchronizes all of the content within that particular project onto the client 26. Gilbert, Fig. 3, component 44, Server automatically synchronizes object and all of its child objects to client. Fig. 3 and paragraph [0082], FIG. 3 is a flow chart describing a process in which the server 12 automatically synchronizes an object and its "child objects"... If the versions of the object and all child objects on the client 26 are not current with respect to those on the server 12, the object and all of its child objects are automatically synchronized with the server 12. Gilbert, Fig. 16 and paragraph [0104].): send a notification to the client indicating that the client-side version of the particular user interface layout at the client is unsynchronized with the updated repository version of the particular user interface layout, and synchronize the client-side version of the particular user interface layout with the updated repository version of the particular user interface layout (Gilbert, paragraph [0036], One embodiment of the invention relates to an online teaching and authoring system that allows authors to collaborate as they develop content. In one embodiment, the learning content learning management system (LCMS), herein referred to as "the system," includes a server that stores content from multiple authors and includes a synchronization module that detects changes in content items developed by authors. If a change in content items is detected, the system sends a message to other authors notifying them of the changed content. Paragraph [0094], FIG. 10 is a flow chart of a process in which an author updates a "reference" in a given course material. The illustrated process begins in a step 120, in which an author logs into the server 12 from a client 26. In a step 122, the author checks out Course A that includes a reference to Content Module A (Module A, as illustrated) from a different project. In a step 124, a new version of Content Module A is checked into the server 12 by someone else. In a step 126, the server sends the author (as well as all other users working on the project) a notification of the new version of Content Module A. In some embodiments, the Content Module A is rendered with an out-of-sync indication within a hierarchical project or course outline on the author's client display. The author can perform an " update-reference" function on Content Module A, illustrated as step 128. In a step 130, the server 12 transmits a read-only copy of the new version of Content Module A to the author's client 26. Fig. 7 and paragraph [0089], In a step 88, the server 12 sends the author an indication of the course object's child objects and synchronizes them with the client 26. Thus, by synchronizing with the new course object, the author has also synchronized with the course object's child objects. Fig. 16 and paragraph [0104-0105]. Paragraph [0106-0108], FIGS. 18-24 are screenshots of a client display according to one embodiment of an authoring module 25 (FIG. 1) of the invention. These screenshots show the display for a User 2. The screenshot of FIG. 18 shows that a User 1 has added new content under "New Course 7." The screen preferably includes a visual indication that User 1 has added the new content. For example, an exclamation point can be superimposed on the text "New Course 7," such as at 237, to indicate that the course has been updated by another user. The exclamation point is a visual indication activated by the client's user interface module 27 (FIG. 1) in response to an event message received by the messaging module 29 from the server 12. Gilbert, Fig. 2 and paragraph [0081], Synchronization of content between a client 26 and server 12 can be performed automatically in certain cases. FIG. 2 is a flow chart describing a process in which an author logs into the server 12 from a client 26, in a step 30. In a step 32, the author "opens" (i.e., indicates intent to access for viewing) a specific project for the first time on that particular client. At this stage, the author has not checked-out the project, but has merely requested to download its hierarchical outline for viewing. As used herein, a project describes educational content containing a plurality of different objects. The project may include one or more lessons (or courses) within a course curriculum, or may refer to the entire curriculum. In a step 34, the server 12 automatically synchronizes all of the content within that particular project onto the client 26. Gilbert, Fig. 3, component 44, Server automatically synchronizes object and all of its child objects to client. Fig. 3 and paragraph [0082], FIG. 3 is a flow chart describing a process in which the server 12 automatically synchronizes an object and its "child objects"... If the versions of the object and all child objects on the client 26 are not current with respect to those on the server 12, the object and all of its child objects are automatically synchronized with the server 12. Gilbert, Fig. 16 and paragraph [0104].). Gilbert does not explicitly teach update a repository version of a particular user interface layout of the one or more user interface layouts responsive to one or more edits received from the client via the authoring interface provided via the connection to edit the particular user interface layout; However, Krishnaswamy teaches update a repository version of a particular user interface layout of the one or more user interface layouts responsive to one or more edits received from the client via the authoring interface provided via the connection to edit the particular user interface layout(Krishnaswamy, US 11210459,fig. 7C and fig. 8B, and column 5, line 62 to column 6, line 25, a computer system comprises a server, which is configured to display a first graphical user interface to a first client, wherein the first graphical user interface comprises a check-out element configured for a check-out input related to a file and a check-in element configured for a check-in input related to the file, wherein the file comprises at least one spreadsheet, wherein the spreadsheet comprises at least one row, wherein the at least one row comprises a statement cell comprising a statement, a data type cell comprising a data type identifier, and a logic cell comprising a logic; in response to receiving the check-out input from the first client, check-out the file such that the file cannot be modified by a second client until the server receives the check-in input from the first client; receive from the first client, a write request associated with the checked-out file and a write input associated with the write request; modify at least one of the statement, the data type identifier, or the logic based on the write request and the write input from the first client;generate a set of rendering instructions corresponding to a second graphical user interface based on the spreadsheet such that the second graphical user interface comprises a label and an input element, wherein the label comprises the statement as modified, wherein the input element is configured for an input based on the data type identifier as modified; and transmit the set of rendering instructions to a computing device associated with a third client, whereby the set of rendering instructions causes the computing device associated with the third client to display the second graphical user interface. Column 42, line 11 to 50, FIG. 7C shows a graphical user interface dynamically rendered based on the spreadsheets illustrated in FIGS. 7A-B. As illustrated in FIG. 7A, the parent spreadsheet comprises of data needed to dynamically generate a GUI. ); It would have obvious to one having ordinary skill in the art before the effecting filing date of the claimed invention to combine the teachings of cited references. Thus, one of ordinary skill in the art before the effecting filing date of the claimed invention would have been motivated to incorporate Krishnaswamy into Gilbert's to display a first graphical user interface to a first client by a server. The server receives a modification request associated with a file that is checked-out and a modification input associated with the modification request. The server modifies a statement, a data type identifier or a logic. A set of rendering instructions is generated corresponding to a second graphical user interface based on rows of a spreadsheet after the spreadsheet is modified by the server such that the interface comprises labels and input elements. The server transmits a set of rendering instructions to a third client. The set of instructions causes the third client to display the second graphical interface when the set of rendering instructions is executed by the third client.as suggested by Krishnaswamy (See abstract and summary). The Office would like to use prior art Jann to back up Gilbert and Krishnaswamy to further teach limitation one or more user interface layouts(Jann, paragraph [0052], In some implementations, the user can personalize the layout and placement of one or more cards (e.g., the cards 122a-i) included in a UI of an overview page (e.g., the overview page 120) and the display of content included in each card. The personalization can enhance the workplace productivity of the user. Paragraph [0053], FIG. 1E is an illustration showing an example object page (object page 124) displayed in the shell main container 104. An object page can be a floor-plan used to represent objects in a UI. An object page can be used to display, create, or edit an object. An object can represent a business entity (e.g., a customer, a sales order, a product, an account, etc.). Enterprise applications that reflect a specific scenario (e.g., a sales order, am account status) can be bundled using an object. The object page can include a header area 126, a navigation area 128, a content area 130, and, in some implementations, a footer toolbar (e.g., footer toolbar 132 as shown in FIG. 1F). In some implementations, the footer toolbar can appear to float over the content displayed in the object page 124. For example, referring to FIG. 1C, a user can select the tile 114f and an object page can be displayed to the user.);15 It would have obvious to one having ordinary skill in the art before the effecting filing date of the claimed invention to combine the teachings of cited references. Thus, one of ordinary skill in the art before the effecting filing date of the claimed invention would have been motivated to incorporate Jann into Gilbert and Krishnaswamy 's to present system for the personalized set of applications for a user in a computing system hosting multiple applications. The user interface element initiates a dialog for adding and removing the application, and hence ensures maintaining the absolute relevance to the users, and allows the user to scroll content and visualize the content, which are not fitting in the card view as suggested by Gilbert (See abstract and summary). Claim 22 is rejected for the reasons set forth hereinabove for claim 21, Gilbert, Krishnaswamy and Jann teach the system of claim 21, wherein the memory further comprises instructions that, when executed on or across the one or more processors, cause the one or more processors to: send another notification via the connection to the client indicating that the client has been synchronized with the updated repository version of the particular user interface layout(Gilbert, paragraph [0110], The screenshot of FIG. 20 is taken after synchronization. A cylinder on Course 7 indicates that User 2 now has all of the updated course materials. Paragraph [0012], a messaging module configured to send and receive course-related event messages to and from the server. Gilbert, Fig. 16 and paragraph [0104]. Krishnaswamy, column 42, line 11 to 50.). Claim 23 is rejected for the reasons set forth hereinabove for claim 21, Gilbert, Krishnaswamy and Jann teach the system of claim 21, wherein the memory further comprises instructions that, when executed on or across the one or more processors, cause the one or more processors to: cause a representation of the repository version of the particular user interface layout to be displayed via the authoring interface(Gilbert, paragraph [0105], Each object preferably has a unique OID, or object identifier. The version status for each object is preferably maintained by a counter that increments its count by one each time a new version of the object is checked into the server 12. Fig. 23, Name, New module 2, Version Number 1. Fig. 23, New course 4, Version Number 0.); and cause the representation of the repository version of the particular user interface layout to be rendered at another device(Gilbert, paragraph [0070-0072], In a preferred embodiment, the clients 26 include authoring modules 25 for authoring, creating and modifying the content stored in the content database 14. FIG. 1 shows two authoring clients 26A and 26B. However, skilled artisans will appreciate that the system 10 can include any number of authoring clients 26. Each authoring module 25 preferably includes a user interface module 27 and a messaging module 29. In the illustrated embodiment, the client 26A comprises an authoring module 25A that includes a user interface module 27A and a messaging module 29A. Likewise, the client 26B comprises an authoring module 25B that includes a user interface module 27B and a messaging module 29B. In contrast to the clients 26, the clients 23 may be more appropriate for use by students who wish to access the content from the content database 14 and who are not involved in authoring the content.). Claim 24 is rejected for the reasons set forth hereinabove for claim 21, Gilbert, Krishnaswamy and Jann teach the system of claim 21, wherein the client-side version of the particular user interface layout comprises one or more additional edits to the particular user interface layout that are applied between disconnection and reconnection of the connection(Gilbert, fig. 16 and paragraph [0104-0105], In a step 224, the author disconnects the client 26 from the server. In some cases, this step entails disconnecting the client 26 from the network. In a step 225, the author modifies the content object on the client 26 while disconnected from the server 12. The author may, for example, edit the content object or remove particular child content objects. In a step 226, the author reconnects the client 26 to the server 12. In a step 227, the server synchronizes with the client 26. In one embodiment, this step entails the server 12 running a diff procedure to determine the differences between the server's version of the content object and the version on the client 26. Jann, fig. 1J and paragraph [0068-0069], The timeline 174 can be used for collaborative communications. The timeline 174 can be configured in multiple different ways depending on use case implementations. For example, the timeline 174 can provide information about changes of an object or about events related to an object. The timeline 174 can provide information about generated entries (e.g., value XY changed from A to B) or about manual entries (e.g., comments from an individual). In some implementations, the latest entry is at the top of a list displayed by a timeline. In some implementations, the timeline 174 can be displayed along with a business object. In some cases, the timeline 174 can be displayed to the right of the business object. Paragraph [0094], Data synchronization between the server and the local device has two directions: changes made on the device (for example, new, updated, and deleted records) are sent to the back end during flush operations and data changes on the back-end server (for example, changes by other users or by the same user as a consequence of its previous flush) are downloaded to the device during refresh operations. The offline SDK provides these two methods as separate operations (flush and refresh), so the application has the flexibility to implement the optimal data synchronization strategy. Paragraph [0139], In some implementations, the at least one application is enabled for offline use as a prepackaged application built for at least one mobile platform. In some implementations, the offline datastore is synchronized to the online datastore, in response to detecting network connectivity for the device.) Claim 25 is rejected for the reasons set forth hereinabove for claim 21, Gilbert, Krishnaswamy and Jann teach the system of claim 21, wherein the memory further comprises instructions that, when executed on or across the one or more processors, cause the one or more processors to: in response to a determination that a development phase is complete, archive the synchronized updated repository version(Gilbert, paragraph [0081], While the project is closed, the project content preferably remains saved within the author's client database 28. Paragraph [0085-0086], In many cases, the information in the content database 14 (FIG. 1) will be changed during a particular author's session on the system 10. This occurs when the author, other authors, organizational administrators, or super administrators "check-in" new or revised content into the database 14. If the newly checked-in content is relevant to the content in use (i.e., content that has been downloaded but not checked-out) by the author, the system 10 informs the author of the new content and provides synchronization options. Some examples of this follow. Gilbert, Fig. 16 and paragraph [0104]. Krishnaswamy, column 42, line 11 to 50. ). Claim 26 is rejected for the reasons set forth hereinabove for claim 21, Gilbert, Krishnaswamy and Jann teach the system of claim 21, wherein to synchronize the client-side version with the updated repository version, the memory further comprises instructions that, when executed on or across the one or more processors, cause the one or more processors to: detect one or more conflicts between the client-side version with the updated repository version(Jann, paragraph [0114], There are certain recommendations for a OData services that will make the overall offline experience of a application better. For example, entity types that can be changed by the client application should support ETags. This way the OData producer can detect requests for changes on stale data and return an error to the client (for example, Conflict detection). Gilbert, fig. 7 and paragraph [0089], In a step 84, the server 12 sends the author an indication that the new course object has been checked in. In some embodiments, this step entails sending the author a text message indicating that the new course has been checked in. Gilbert, Fig. 16 and paragraph [0104]. Krishnaswamy, column 42, line 11 to 50.); and resolve the one or more conflicts according to a conflict resolution(Jann, paragraph [0085], The synchronization between the offline stores and the back-end server is explicitly triggered by the FIORI application 310. The plugin provides a flush method to send modifications to the OData producer, and a refresh method to refresh the whole store or a subset of it. The local platform can be used to implement scenarios with no front-end server. Paragraph [0089], Any number of offline stores can be generated during a first launch of an application. The offline store generation is typically performed using a network connection and successful authentication in order to connect to the back-end server 330. At a later time, a flush operation and a refresh operation can be performed in an asynchronous fashion at the convenience of the user. Paragraph [0094], Data synchronization between the server and the local device. Gilbert, fig. 7 and paragraph [0089], In a step 86, the author requests and has performed a synchronization of the new course object.). As per claim 27, this is the method claim to system claim 21. Therefore, it is rejected for the same reasons as above. As per claim 28, this is the method claim to system claim 22. Therefore, it is rejected for the same reasons as above. As per claim 29, this is the method claim to system claim 23. Therefore, it is rejected for the same reasons as above. As per claim 30, this is the method claim to system claim 24. Therefore, it is rejected for the same reasons as above. As per claim 31, this is the method claim to system claim 25. Therefore, it is –rejected for the same reasons as above. As per claim 32, this is the method claim to system claim 26. Therefore, it is rejected for the same reasons as above. Claim 33 is rejected for the reasons set forth hereinabove for claim 27, Gilbert, Krishnaswamy and Jann teach the method of claim 27, further comprising: receiving a request to store a custom version of the particular user interface layout based on the client-side version(Gilbert, paragraph [0089], FIG. 8 is a flow chart of a process in which an object is checked-out during an author's session. In a step 90, an author logs into the server 12 from a client 26. In a step 92, the author checks-in a course including a given object.); and storing the custom version of the particular user interface layout to a data store(Gilbert, paragraph [0088], In preferred embodiments, when an object (either alone or as a group) is edited, the previous version of the object is not deleted from the server 12. The modified object is saved as a new version of the object in the server 12. Saving successive iterations of an object advantageously permits authors to "roll-back" to a previous version of the object, in which case the most current version of the object is replaced with a previous version. Also, if an author checks-out an object from the server 12, the author can subsequently perform an "undo check-out," in which the server 12 is instructed to roll-back to the version of the object prior to the check-out.). As per claim 34, this is the medium claim to system claim 21. Therefore, it is rejected for the same reasons as above. As per claim 35, this is the medium claim to system claim 22. Therefore, it is rejected for the same reasons as above. As per claim 36, this is the medium claim to system claim 23. Therefore, it is rejected for the same reasons as above. As per claim 37, this is the medium claim to system claim 24. Therefore, it is rejected for the same reasons as above. As per claim 38, this is the medium claim to system claim 25. Therefore, it is rejected for the same reasons as above. As per claim 39, this is the medium claim to system claim 26. Therefore, it is rejected for the same reasons as above. As per claim 40, this is the medium claim to method claim 33. Therefore, it is rejected for the same reasons as above. Conclusion
8. Any inquiry concerning this communication or earlier communications from the examiner should be directed to DUY KHUONG THANH NGUYEN whose telephone number is (571)270-7139. The examiner can normally be reached on M-F 8 to 5. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Lewis Bullock can be reached on 5712723759. 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. /DUY KHUONG T NGUYEN/Primary Examiner, Art Unit 2199 | 2022-10-12T16:59:15 | [
"Notice of Pre-AIA or AIA Status 1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . 2. A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 08 September 2022 has been entered. Claims 21-22, 25-29, 31-32 and 34-38 have been amended. Claims 21-40 are pending, of which claims, of which claim 21, claim 27 and claim 34 are in independent form. Response to Argument 3. a. The Office will maintain the double rejection between the instant application and the patent 10,705,805. The Office suggested applicants to file an eTD between the instant application and the patent 10,705,805. b.",
"Applicant's arguments with respect to claims 21-40 have been considered but are moot in view of the new ground(s) of rejection. Status of Claims 4. Claims 21-40 are pending, of which claims, of which claim 21, 27 and 34 are in independent form. The Office's Note: 5. The Office has cited particular paragraphs / columns and line numbers in the reference(s) applied to the claims above for the convenience of the Applicant. Although the specified citations are representative of the teachings of the art and are applied to specific limitations within the individual claim(s), other passages and figures may apply as well. It is respectfully requested from the Applicant in preparing responses, to fully consider the references in entirety as potentially teaching all or part of the claimed invention, as well as the context of the cited passages as taught by the prior art or relied upon by the Examiner.",
"Allowable Subject Matter 6. The Office suggested applicants to add limitations from step 836 of fig. 8 (para [0085] from specification) into independent claims 21, 27 and 34 “wherein in response to a determination that a development phase is complete, initiate testing and deployment”. This amendment will place the application in condition for allowance. 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. 7. Claims 21-40 are rejected under 35 U.S.C. 103 as being obvious over Gilbert US 20070016650 (hereinafter Gilbert) further in view Jann US 20170331915 (hereinafter Jann). Claim 21 is rejected, Gilbert teaches a system, comprising: one or more processors (Gilbert, component 10 – SERVER and component 26A - Client); and a memory storing instructions that, when executed on or across the one or more processors, cause the one or more processors to implement an authoring service to(Gilbert, US 20070016650, paragraph [0036], One embodiment of the invention relates to an online teaching and authoring system that allows authors to collaborate as they develop content.",
"In one embodiment, the learning content learning management system (LCMS), herein referred to as \"the system,\" includes a server that stores content from multiple authors and includes a synchronization module that detects changes in content items developed by authors. If a change in content items is detected, the system sends a message to other authors notifying them of the changed content. Fig. 1 and paragraph [0069-0071], component 25A - Authoring Module. ): provide an authoring interface configured to display respective representations of one or more user interface layouts via a connection to a client (Gilbert, fig. 1 and paragraph [0069-0070], Each authoring module 25 preferably includes a user interface module 27 and a messaging module 29. In the illustrated embodiment, the client 26A comprises an authoring module 25A that includes a user interface module 27A and a messaging module 29A. Paragraph [0071-0072], For example, suppose an Author A using client 26A \"checks-out\" and begins working on a particular content item or course material (e.g., a chapter of a course) from the server 12.",
"The checked-out content item is a portion of a larger group of content items (\"content\") stored in the content database 14. At a granular level, the content comprises a plurality of objects having a hierarchical structure. The user interface module 27A is configured to update the client's display to show the object hierarchy of the content with a visual indication of the checked-out content item. Paragraph [0071], the authoring module 25) ; detect that the connection has been disconnected and reconnected(Gilbert, fig. 16, component 224 – User disconnects from server, component 226 – User reconnects to server and paragraph [0104]. Paragraph [0014], The method further comprises checking out a content object from the storage, disconnecting the client computer from the storage after checking out the content object, modifying the content object on the client computer while the client computer is disconnected from the storage, and reconnecting the client computer to the storage after modifying the content object. ); in response to the connection being reconnected, determine whether a client-side version of the particular user interface layout at the client is unsynchronized with the updated repository version of the particular user interface layout (Gilbert, fig.",
"16, component 224 – User disconnects from server, component 226 – User reconnects to server and paragraph [0104], In a step 227, the server synchronizes with the client 26. In one embodiment, this step entails the server 12 running a diff procedure to determine the differences between the server's version of the content object and the version on the client 26. In such a case, synchronization involves transmitting the out-of-sync portions of the content object from the client 26 to the server 12. In another embodiment, the server 12 requests the content object in its entirety from the client 26 without running a diff procedure. The user may also check-in the object after step 226. Paragraph [0014], The method further comprises checking out a content object from the storage, disconnecting the client computer from the storage after checking out the content object, modifying the content object on the client computer while the client computer is disconnected from the storage, and reconnecting the client computer to the storage after modifying the content object. Gilbert, Fig. 2 and paragraph [0081], Synchronization of content between a client 26 and server 12 can be performed automatically in certain cases.",
"FIG. 2 is a flow chart describing a process in which an author logs into the server 12 from a client 26, in a step 30. In a step 32, the author \"opens\" (i.e., indicates intent to access for viewing) a specific project for the first time on that particular client. At this stage, the author has not checked-out the project, but has merely requested to download its hierarchical outline for viewing. As used herein, a project describes educational content containing a plurality of different objects. The project may include one or more lessons (or courses) within a course curriculum, or may refer to the entire curriculum.",
"In a step 34, the server 12 automatically synchronizes all of the content within that particular project onto the client 26. Gilbert, Fig. 3, component 44, Server automatically synchronizes object and all of its child objects to client. Fig. 3 and paragraph [0082], FIG. 3 is a flow chart describing a process in which the server 12 automatically synchronizes an object and its \"child objects\"... If the versions of the object and all child objects on the client 26 are not current with respect to those on the server 12, the object and all of its child objects are automatically synchronized with the server 12. Gilbert, Fig. 16 and paragraph [0104]. ); and based on a determination that the client-side version of the particular user interface layout is unsynchronized with the updated repository version of the particular user interface layout (Gilbert, fig.",
"16, component 224 – User disconnects from server, component 226 – User reconnects to server and paragraph [0104], In a step 227, the server synchronizes with the client 26. In one embodiment, this step entails the server 12 running a diff procedure to determine the differences between the server's version of the content object and the version on the client 26. In such a case, synchronization involves transmitting the out-of-sync portions of the content object from the client 26 to the server 12. In another embodiment, the server 12 requests the content object in its entirety from the client 26 without running a diff procedure.",
"The user may also check-in the object after step 226. Gilbert, Fig. 2, component 34 – Server synchronizes all content within project onto client. Gilbert, Fig. 2 and paragraph [0081], Synchronization of content between a client 26 and server 12 can be performed automatically in certain cases. FIG. 2 is a flow chart describing a process in which an author logs into the server 12 from a client 26, in a step 30. In a step 32, the author \"opens\" (i.e., indicates intent to access for viewing) a specific project for the first time on that particular client. At this stage, the author has not checked-out the project, but has merely requested to download its hierarchical outline for viewing.",
"As used herein, a project describes educational content containing a plurality of different objects. The project may include one or more lessons (or courses) within a course curriculum, or may refer to the entire curriculum. In a step 34, the server 12 automatically synchronizes all of the content within that particular project onto the client 26. Gilbert, Fig. 3, component 44, Server automatically synchronizes object and all of its child objects to client. Fig. 3 and paragraph [0082], FIG. 3 is a flow chart describing a process in which the server 12 automatically synchronizes an object and its \"child objects\"... If the versions of the object and all child objects on the client 26 are not current with respect to those on the server 12, the object and all of its child objects are automatically synchronized with the server 12. Gilbert, Fig. 16 and paragraph [0104]. ): send a notification to the client indicating that the client-side version of the particular user interface layout at the client is unsynchronized with the updated repository version of the particular user interface layout, and synchronize the client-side version of the particular user interface layout with the updated repository version of the particular user interface layout (Gilbert, paragraph [0036], One embodiment of the invention relates to an online teaching and authoring system that allows authors to collaborate as they develop content.",
"In one embodiment, the learning content learning management system (LCMS), herein referred to as \"the system,\" includes a server that stores content from multiple authors and includes a synchronization module that detects changes in content items developed by authors. If a change in content items is detected, the system sends a message to other authors notifying them of the changed content. Paragraph [0094], FIG. 10 is a flow chart of a process in which an author updates a \"reference\" in a given course material. The illustrated process begins in a step 120, in which an author logs into the server 12 from a client 26.",
"In a step 122, the author checks out Course A that includes a reference to Content Module A (Module A, as illustrated) from a different project. In a step 124, a new version of Content Module A is checked into the server 12 by someone else. In a step 126, the server sends the author (as well as all other users working on the project) a notification of the new version of Content Module A. In some embodiments, the Content Module A is rendered with an out-of-sync indication within a hierarchical project or course outline on the author's client display. The author can perform an \" update-reference\" function on Content Module A, illustrated as step 128. In a step 130, the server 12 transmits a read-only copy of the new version of Content Module A to the author's client 26. Fig. 7 and paragraph [0089], In a step 88, the server 12 sends the author an indication of the course object's child objects and synchronizes them with the client 26.",
"Thus, by synchronizing with the new course object, the author has also synchronized with the course object's child objects. Fig. 16 and paragraph [0104-0105]. Paragraph [0106-0108], FIGS. 18-24 are screenshots of a client display according to one embodiment of an authoring module 25 (FIG. 1) of the invention. These screenshots show the display for a User 2. The screenshot of FIG. 18 shows that a User 1 has added new content under \"New Course 7.\"",
"The screen preferably includes a visual indication that User 1 has added the new content. For example, an exclamation point can be superimposed on the text \"New Course 7,\" such as at 237, to indicate that the course has been updated by another user. The exclamation point is a visual indication activated by the client's user interface module 27 (FIG. 1) in response to an event message received by the messaging module 29 from the server 12. Gilbert, Fig. 2 and paragraph [0081], Synchronization of content between a client 26 and server 12 can be performed automatically in certain cases.",
"FIG. 2 is a flow chart describing a process in which an author logs into the server 12 from a client 26, in a step 30. In a step 32, the author \"opens\" (i.e., indicates intent to access for viewing) a specific project for the first time on that particular client. At this stage, the author has not checked-out the project, but has merely requested to download its hierarchical outline for viewing. As used herein, a project describes educational content containing a plurality of different objects. The project may include one or more lessons (or courses) within a course curriculum, or may refer to the entire curriculum. In a step 34, the server 12 automatically synchronizes all of the content within that particular project onto the client 26. Gilbert, Fig. 3, component 44, Server automatically synchronizes object and all of its child objects to client. Fig.",
"3 and paragraph [0082], FIG. 3 is a flow chart describing a process in which the server 12 automatically synchronizes an object and its \"child objects\"... If the versions of the object and all child objects on the client 26 are not current with respect to those on the server 12, the object and all of its child objects are automatically synchronized with the server 12. Gilbert, Fig. 16 and paragraph [0104].). Gilbert does not explicitly teach update a repository version of a particular user interface layout of the one or more user interface layouts responsive to one or more edits received from the client via the authoring interface provided via the connection to edit the particular user interface layout; However, Krishnaswamy teaches update a repository version of a particular user interface layout of the one or more user interface layouts responsive to one or more edits received from the client via the authoring interface provided via the connection to edit the particular user interface layout(Krishnaswamy, US 11210459,fig.",
"7C and fig. 8B, and column 5, line 62 to column 6, line 25, a computer system comprises a server, which is configured to display a first graphical user interface to a first client, wherein the first graphical user interface comprises a check-out element configured for a check-out input related to a file and a check-in element configured for a check-in input related to the file, wherein the file comprises at least one spreadsheet, wherein the spreadsheet comprises at least one row, wherein the at least one row comprises a statement cell comprising a statement, a data type cell comprising a data type identifier, and a logic cell comprising a logic; in response to receiving the check-out input from the first client, check-out the file such that the file cannot be modified by a second client until the server receives the check-in input from the first client; receive from the first client, a write request associated with the checked-out file and a write input associated with the write request; modify at least one of the statement, the data type identifier, or the logic based on the write request and the write input from the first client;generate a set of rendering instructions corresponding to a second graphical user interface based on the spreadsheet such that the second graphical user interface comprises a label and an input element, wherein the label comprises the statement as modified, wherein the input element is configured for an input based on the data type identifier as modified; and transmit the set of rendering instructions to a computing device associated with a third client, whereby the set of rendering instructions causes the computing device associated with the third client to display the second graphical user interface.",
"Column 42, line 11 to 50, FIG. 7C shows a graphical user interface dynamically rendered based on the spreadsheets illustrated in FIGS. 7A-B. As illustrated in FIG. 7A, the parent spreadsheet comprises of data needed to dynamically generate a GUI. ); It would have obvious to one having ordinary skill in the art before the effecting filing date of the claimed invention to combine the teachings of cited references. Thus, one of ordinary skill in the art before the effecting filing date of the claimed invention would have been motivated to incorporate Krishnaswamy into Gilbert's to display a first graphical user interface to a first client by a server.",
"The server receives a modification request associated with a file that is checked-out and a modification input associated with the modification request. The server modifies a statement, a data type identifier or a logic. A set of rendering instructions is generated corresponding to a second graphical user interface based on rows of a spreadsheet after the spreadsheet is modified by the server such that the interface comprises labels and input elements.",
"The server transmits a set of rendering instructions to a third client. The set of instructions causes the third client to display the second graphical interface when the set of rendering instructions is executed by the third client.as suggested by Krishnaswamy (See abstract and summary). The Office would like to use prior art Jann to back up Gilbert and Krishnaswamy to further teach limitation one or more user interface layouts(Jann, paragraph [0052], In some implementations, the user can personalize the layout and placement of one or more cards (e.g., the cards 122a-i) included in a UI of an overview page (e.g., the overview page 120) and the display of content included in each card.",
"The personalization can enhance the workplace productivity of the user. Paragraph [0053], FIG. 1E is an illustration showing an example object page (object page 124) displayed in the shell main container 104. An object page can be a floor-plan used to represent objects in a UI. An object page can be used to display, create, or edit an object. An object can represent a business entity (e.g., a customer, a sales order, a product, an account, etc.). Enterprise applications that reflect a specific scenario (e.g., a sales order, am account status) can be bundled using an object. The object page can include a header area 126, a navigation area 128, a content area 130, and, in some implementations, a footer toolbar (e.g., footer toolbar 132 as shown in FIG. 1F).",
"In some implementations, the footer toolbar can appear to float over the content displayed in the object page 124. For example, referring to FIG. 1C, a user can select the tile 114f and an object page can be displayed to the user. );15 It would have obvious to one having ordinary skill in the art before the effecting filing date of the claimed invention to combine the teachings of cited references. Thus, one of ordinary skill in the art before the effecting filing date of the claimed invention would have been motivated to incorporate Jann into Gilbert and Krishnaswamy 's to present system for the personalized set of applications for a user in a computing system hosting multiple applications. The user interface element initiates a dialog for adding and removing the application, and hence ensures maintaining the absolute relevance to the users, and allows the user to scroll content and visualize the content, which are not fitting in the card view as suggested by Gilbert (See abstract and summary).",
"Claim 22 is rejected for the reasons set forth hereinabove for claim 21, Gilbert, Krishnaswamy and Jann teach the system of claim 21, wherein the memory further comprises instructions that, when executed on or across the one or more processors, cause the one or more processors to: send another notification via the connection to the client indicating that the client has been synchronized with the updated repository version of the particular user interface layout(Gilbert, paragraph [0110], The screenshot of FIG. 20 is taken after synchronization. A cylinder on Course 7 indicates that User 2 now has all of the updated course materials. Paragraph [0012], a messaging module configured to send and receive course-related event messages to and from the server.",
"Gilbert, Fig. 16 and paragraph [0104]. Krishnaswamy, column 42, line 11 to 50.). Claim 23 is rejected for the reasons set forth hereinabove for claim 21, Gilbert, Krishnaswamy and Jann teach the system of claim 21, wherein the memory further comprises instructions that, when executed on or across the one or more processors, cause the one or more processors to: cause a representation of the repository version of the particular user interface layout to be displayed via the authoring interface(Gilbert, paragraph [0105], Each object preferably has a unique OID, or object identifier. The version status for each object is preferably maintained by a counter that increments its count by one each time a new version of the object is checked into the server 12. Fig.",
"23, Name, New module 2, Version Number 1. Fig. 23, New course 4, Version Number 0. ); and cause the representation of the repository version of the particular user interface layout to be rendered at another device(Gilbert, paragraph [0070-0072], In a preferred embodiment, the clients 26 include authoring modules 25 for authoring, creating and modifying the content stored in the content database 14. FIG. 1 shows two authoring clients 26A and 26B. However, skilled artisans will appreciate that the system 10 can include any number of authoring clients 26. Each authoring module 25 preferably includes a user interface module 27 and a messaging module 29.",
"In the illustrated embodiment, the client 26A comprises an authoring module 25A that includes a user interface module 27A and a messaging module 29A. Likewise, the client 26B comprises an authoring module 25B that includes a user interface module 27B and a messaging module 29B. In contrast to the clients 26, the clients 23 may be more appropriate for use by students who wish to access the content from the content database 14 and who are not involved in authoring the content.). Claim 24 is rejected for the reasons set forth hereinabove for claim 21, Gilbert, Krishnaswamy and Jann teach the system of claim 21, wherein the client-side version of the particular user interface layout comprises one or more additional edits to the particular user interface layout that are applied between disconnection and reconnection of the connection(Gilbert, fig. 16 and paragraph [0104-0105], In a step 224, the author disconnects the client 26 from the server.",
"In some cases, this step entails disconnecting the client 26 from the network. In a step 225, the author modifies the content object on the client 26 while disconnected from the server 12. The author may, for example, edit the content object or remove particular child content objects. In a step 226, the author reconnects the client 26 to the server 12. In a step 227, the server synchronizes with the client 26. In one embodiment, this step entails the server 12 running a diff procedure to determine the differences between the server's version of the content object and the version on the client 26. Jann, fig. 1J and paragraph [0068-0069], The timeline 174 can be used for collaborative communications. The timeline 174 can be configured in multiple different ways depending on use case implementations. For example, the timeline 174 can provide information about changes of an object or about events related to an object. The timeline 174 can provide information about generated entries (e.g., value XY changed from A to B) or about manual entries (e.g., comments from an individual). In some implementations, the latest entry is at the top of a list displayed by a timeline. In some implementations, the timeline 174 can be displayed along with a business object.",
"In some cases, the timeline 174 can be displayed to the right of the business object. Paragraph [0094], Data synchronization between the server and the local device has two directions: changes made on the device (for example, new, updated, and deleted records) are sent to the back end during flush operations and data changes on the back-end server (for example, changes by other users or by the same user as a consequence of its previous flush) are downloaded to the device during refresh operations. The offline SDK provides these two methods as separate operations (flush and refresh), so the application has the flexibility to implement the optimal data synchronization strategy. Paragraph [0139], In some implementations, the at least one application is enabled for offline use as a prepackaged application built for at least one mobile platform.",
"In some implementations, the offline datastore is synchronized to the online datastore, in response to detecting network connectivity for the device.) Claim 25 is rejected for the reasons set forth hereinabove for claim 21, Gilbert, Krishnaswamy and Jann teach the system of claim 21, wherein the memory further comprises instructions that, when executed on or across the one or more processors, cause the one or more processors to: in response to a determination that a development phase is complete, archive the synchronized updated repository version(Gilbert, paragraph [0081], While the project is closed, the project content preferably remains saved within the author's client database 28.",
"Paragraph [0085-0086], In many cases, the information in the content database 14 (FIG. 1) will be changed during a particular author's session on the system 10. This occurs when the author, other authors, organizational administrators, or super administrators \"check-in\" new or revised content into the database 14. If the newly checked-in content is relevant to the content in use (i.e., content that has been downloaded but not checked-out) by the author, the system 10 informs the author of the new content and provides synchronization options. Some examples of this follow. Gilbert, Fig.",
"16 and paragraph [0104]. Krishnaswamy, column 42, line 11 to 50. ). Claim 26 is rejected for the reasons set forth hereinabove for claim 21, Gilbert, Krishnaswamy and Jann teach the system of claim 21, wherein to synchronize the client-side version with the updated repository version, the memory further comprises instructions that, when executed on or across the one or more processors, cause the one or more processors to: detect one or more conflicts between the client-side version with the updated repository version(Jann, paragraph [0114], There are certain recommendations for a OData services that will make the overall offline experience of a application better. For example, entity types that can be changed by the client application should support ETags. This way the OData producer can detect requests for changes on stale data and return an error to the client (for example, Conflict detection).",
"Gilbert, fig. 7 and paragraph [0089], In a step 84, the server 12 sends the author an indication that the new course object has been checked in. In some embodiments, this step entails sending the author a text message indicating that the new course has been checked in. Gilbert, Fig. 16 and paragraph [0104]. Krishnaswamy, column 42, line 11 to 50. ); and resolve the one or more conflicts according to a conflict resolution(Jann, paragraph [0085], The synchronization between the offline stores and the back-end server is explicitly triggered by the FIORI application 310. The plugin provides a flush method to send modifications to the OData producer, and a refresh method to refresh the whole store or a subset of it. The local platform can be used to implement scenarios with no front-end server. Paragraph [0089], Any number of offline stores can be generated during a first launch of an application.",
"The offline store generation is typically performed using a network connection and successful authentication in order to connect to the back-end server 330. At a later time, a flush operation and a refresh operation can be performed in an asynchronous fashion at the convenience of the user. Paragraph [0094], Data synchronization between the server and the local device. Gilbert, fig. 7 and paragraph [0089], In a step 86, the author requests and has performed a synchronization of the new course object.). As per claim 27, this is the method claim to system claim 21.",
"Therefore, it is rejected for the same reasons as above. As per claim 28, this is the method claim to system claim 22. Therefore, it is rejected for the same reasons as above. As per claim 29, this is the method claim to system claim 23. Therefore, it is rejected for the same reasons as above. As per claim 30, this is the method claim to system claim 24. Therefore, it is rejected for the same reasons as above. As per claim 31, this is the method claim to system claim 25. Therefore, it is –rejected for the same reasons as above. As per claim 32, this is the method claim to system claim 26. Therefore, it is rejected for the same reasons as above. Claim 33 is rejected for the reasons set forth hereinabove for claim 27, Gilbert, Krishnaswamy and Jann teach the method of claim 27, further comprising: receiving a request to store a custom version of the particular user interface layout based on the client-side version(Gilbert, paragraph [0089], FIG. 8 is a flow chart of a process in which an object is checked-out during an author's session. In a step 90, an author logs into the server 12 from a client 26.",
"In a step 92, the author checks-in a course including a given object. ); and storing the custom version of the particular user interface layout to a data store(Gilbert, paragraph [0088], In preferred embodiments, when an object (either alone or as a group) is edited, the previous version of the object is not deleted from the server 12. The modified object is saved as a new version of the object in the server 12. Saving successive iterations of an object advantageously permits authors to \"roll-back\" to a previous version of the object, in which case the most current version of the object is replaced with a previous version. Also, if an author checks-out an object from the server 12, the author can subsequently perform an \"undo check-out,\" in which the server 12 is instructed to roll-back to the version of the object prior to the check-out.). As per claim 34, this is the medium claim to system claim 21. Therefore, it is rejected for the same reasons as above. As per claim 35, this is the medium claim to system claim 22. Therefore, it is rejected for the same reasons as above.",
"As per claim 36, this is the medium claim to system claim 23. Therefore, it is rejected for the same reasons as above. As per claim 37, this is the medium claim to system claim 24. Therefore, it is rejected for the same reasons as above. As per claim 38, this is the medium claim to system claim 25. Therefore, it is rejected for the same reasons as above. As per claim 39, this is the medium claim to system claim 26. Therefore, it is rejected for the same reasons as above. As per claim 40, this is the medium claim to method claim 33. Therefore, it is rejected for the same reasons as above. Conclusion 8. Any inquiry concerning this communication or earlier communications from the examiner should be directed to DUY KHUONG THANH NGUYEN whose telephone number is (571)270-7139.",
"The examiner can normally be reached on M-F 8 to 5. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Lewis Bullock can be reached on 5712723759. 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. /DUY KHUONG T NGUYEN/Primary Examiner, Art Unit 2199"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-10-16.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 31.1 CERTIFICATION I, Richard W. McCullough, certify that: 1. I have reviewed this Quarterly Report on Form 10-Q of PDC 2004-C Limited Partnership: 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present, in all material respects, the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant 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 and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditor 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:May 14, 2010 /s/ Richard W. McCullough Richard W. McCullough Chief Executive Officer Petroleum Development Corporation Managing General Partner | [
"Exhibit 31.1 CERTIFICATION I, Richard W. McCullough, certify that: 1. I have reviewed this Quarterly Report on Form 10-Q of PDC 2004-C Limited Partnership: 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present, in all material respects, the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4.",
"The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant 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 and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditor 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:May 14, 2010 /s/ Richard W. McCullough Richard W. McCullough Chief Executive Officer Petroleum Development Corporation Managing General Partner"
]
| https://applica-public.s3-eu-west-1.amazonaws.com/contract-discovery/edgar.txt.xz | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Election/Restrictions Applicant’s election without traverse of Group I: claims 1-16 in the reply filed on 7/12/2022 is acknowledged.
Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ohtsu (US 20160379800 A1) in view of Mcallister et al. (US 20170050010 A1) in view of Biskop (US 20190009456 A1).
Regarding claim 1, Ohtsu discloses a ink droplet volume measuring apparatus comprising: a substrate on which an ink droplet is dropped (Ohtsu ¶82- Note: the substrate is not understood to be part of the apparatus claimed. See MPEP §2114.); a confocal sensor configured to irradiate light to the ink droplet dropped on the substrate and scan the ink droplet (Ohtsu ¶82); and a controller configured to calculate a three-dimensional shape of the ink droplet from a signal scanned by the chromatic confocal sensor (Ohtsu ¶82);
Ohtsu is merely silent upon wherein the confocal senor is chromatic. At the time of the invention it was understood that confocal sensors were chromatic and thus operated with a plurality of wavelengths. For support see McAllister ¶54 which teaches “chromatic confocal “ imaging sensors were well known and commercially available at the time of the invention. In view of McAllister it It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the sensor of Ohtsu with chromatic sensor, since applying a known element to a known device ready for improvement to yield predictable results is considered obvious to one of ordinary skill in the art (KSR International Co. v. Teleflex Inc., 550 U.S.-, 82 USPQ2d 1385).
Ohtsu teaches the known concept of using a confocal sensor for measuring droplets from a inkjet printer where the calculated info is used to adjusting/calibration. It may be however unclear if the system is a integrated apparatus. At the time of the invention it would be obvious to one of ordinary skill in the art to integrate the sensor into a printer. For support see Biskop paragraphs 30-31, which explicitly teaches printers comprising both a printhead unit and a measurement unit were known and used at the time of the invention. As such, even if arguendo, Ohtsu may not explicitly state the system described is a integral apparatus, it was known at the time of the invention the components were capable of being integrated into a single apparatus.
Regarding claim 2, Ohtsu ) in view of Mcallister et al. in view of Biskop discloses a ink droplet volume measuring apparatus of claim 1 (See regarding claim 1). The further limitation of wherein a plurality of the ink droplets are dropped on the substrate does not provide any further structure detail to the apparatus. See MPEP §2114.
Regarding claim 3, Ohtsu ) in view of Mcallister et al. in view of Biskop discloses a ink droplet volume measuring apparatus of claim 1, wherein: the chromatic confocal sensor is configured to scan the plurality of ink droplets; and the controller is configured to calculate a three-dimensional shape for each of the plurality of droplets (See regarding claim 1).
Regarding claim 4, Ohtsu ) in view of Mcallister et al. in view of Biskop discloses a ink droplet volume measuring apparatus of claim 1 (See regarding claim 1). The further limitation of wherein the ink droplet comprises nanoparticles does not provide any further structure detail to the apparatus. See MPEP §2114.
Regarding claim 5, Ohtsu ) in view of Mcallister et al. in view of Biskop discloses a ink droplet volume measuring apparatus of claim 4 (See regarding claim 1). The further limitation of wherein the ink comprises ink for forming a quantum dot thin-film layer does not provide any further structure detail to the apparatus. See MPEP §2114.
Regarding claim 6, Ohtsu ) in view of Mcallister et al. in view of Biskop discloses a thin film layer forming apparatus comprising: an inkjet head comprising a nozzle for dropping an ink droplet (Ohtsu ¶82); a substrate on which the ink droplet is dropped (Ohtsu ¶82- Note: the substrate is not understood to be part of the apparatus claimed. See MPEP §2114.); a chromatic confocal sensor configured to irradiate light having a plurality of wavelengths to the ink droplet dropped on the substrate and scan the ink droplet (Ohtsu in view of McAllister. See discussion in regarding claim 1.); and a controller configured to feedback-control an ejection amount of the nozzle of the inkjet head by calculating the three-dimensional shape of the ink droplet from a signal scanned by the chromatic confocal sensor (Ohtsu ¶82). Ohtsu teaches the known concept of using a confocal sensor for measuring droplets from a inkjet printer where the calculated info is used to adjusting/calibration. It may be however unclear if the system is a integrated apparatus. At the time of the invention it would be obvious to one of ordinary skill in the art to integrate the sensor into a printer. For support see Biskop paragraphs 30-31, which explicitly teaches printers comprising both a printhead unit and a measurement unit were known and used at the time of the invention. As such, even if arguendo, Ohtsu may not explicitly state the system described is a integral apparatus, it was known at the time of the invention the components were capable of being integrated into a single apparatus.
Regarding claim 7, Ohtsu ) in view of Mcallister et al. in view of Biskop discloses a thin film layer forming apparatus of claim 6, wherein a plurality of the nozzles are provided to drop a plurality of the ink droplets on the substrate (Ohtsu ¶82).
Regarding claim 8, Ohtsu ) in view of Mcallister et al. in view of Biskop discloses a thin film layer forming apparatus of claim 7, wherein: the chromatic confocal sensor is configured to scan the plurality of ink droplets; and the controller is configured to calculate a three-dimensional shape for each of the plurality of ink droplets to feedback-control the ejection amount of each of the plurality of nozzles (Ohtsu ¶82).
Regarding claim 9, Ohtsu ) in view of Mcallister et al. in view of Biskop discloses a ink droplet volume measuring apparatus of claim 6 (See regarding claim 1). The further limitation of wherein the ink droplet comprises nanoparticles does not provide any further structure detail to the apparatus. See MPEP §2114.
Regarding claim 10, Ohtsu ) in view of Mcallister et al. in view of Biskop discloses a ink droplet volume measuring apparatus of claim 9 (See regarding claim 1). The further limitation of wherein the ink comprises ink for forming a quantum dot thin-film layer does not provide any further structure detail to the apparatus. See MPEP §2114.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to JARRETT J STARK whose telephone number is (571)272-6005. The examiner can normally be reached 8-4 M-F. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brett Feeney can be reached on (571) 270-5484. 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.
JARRETT J. STARK Primary Examiner Art Unit 2823
7/18/2022 /JARRETT J STARK/Primary Examiner, Art Unit 2822 | 2022-07-24T22:06:07 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Election/Restrictions Applicant’s election without traverse of Group I: claims 1-16 in the reply filed on 7/12/2022 is acknowledged. Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.",
"Patentability shall not be negated by the manner in which the invention was made. Claim(s) 1-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ohtsu (US 20160379800 A1) in view of Mcallister et al. (US 20170050010 A1) in view of Biskop (US 20190009456 A1). Regarding claim 1, Ohtsu discloses a ink droplet volume measuring apparatus comprising: a substrate on which an ink droplet is dropped (Ohtsu ¶82- Note: the substrate is not understood to be part of the apparatus claimed. See MPEP §2114. ); a confocal sensor configured to irradiate light to the ink droplet dropped on the substrate and scan the ink droplet (Ohtsu ¶82); and a controller configured to calculate a three-dimensional shape of the ink droplet from a signal scanned by the chromatic confocal sensor (Ohtsu ¶82); Ohtsu is merely silent upon wherein the confocal senor is chromatic.",
"At the time of the invention it was understood that confocal sensors were chromatic and thus operated with a plurality of wavelengths. For support see McAllister ¶54 which teaches “chromatic confocal “ imaging sensors were well known and commercially available at the time of the invention. In view of McAllister it It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the sensor of Ohtsu with chromatic sensor, since applying a known element to a known device ready for improvement to yield predictable results is considered obvious to one of ordinary skill in the art (KSR International Co. v. Teleflex Inc., 550 U.S.-, 82 USPQ2d 1385). Ohtsu teaches the known concept of using a confocal sensor for measuring droplets from a inkjet printer where the calculated info is used to adjusting/calibration. It may be however unclear if the system is a integrated apparatus. At the time of the invention it would be obvious to one of ordinary skill in the art to integrate the sensor into a printer.",
"For support see Biskop paragraphs 30-31, which explicitly teaches printers comprising both a printhead unit and a measurement unit were known and used at the time of the invention. As such, even if arguendo, Ohtsu may not explicitly state the system described is a integral apparatus, it was known at the time of the invention the components were capable of being integrated into a single apparatus. Regarding claim 2, Ohtsu ) in view of Mcallister et al. in view of Biskop discloses a ink droplet volume measuring apparatus of claim 1 (See regarding claim 1). The further limitation of wherein a plurality of the ink droplets are dropped on the substrate does not provide any further structure detail to the apparatus.",
"See MPEP §2114. Regarding claim 3, Ohtsu ) in view of Mcallister et al. in view of Biskop discloses a ink droplet volume measuring apparatus of claim 1, wherein: the chromatic confocal sensor is configured to scan the plurality of ink droplets; and the controller is configured to calculate a three-dimensional shape for each of the plurality of droplets (See regarding claim 1). Regarding claim 4, Ohtsu ) in view of Mcallister et al. in view of Biskop discloses a ink droplet volume measuring apparatus of claim 1 (See regarding claim 1). The further limitation of wherein the ink droplet comprises nanoparticles does not provide any further structure detail to the apparatus. See MPEP §2114. Regarding claim 5, Ohtsu ) in view of Mcallister et al. in view of Biskop discloses a ink droplet volume measuring apparatus of claim 4 (See regarding claim 1).",
"The further limitation of wherein the ink comprises ink for forming a quantum dot thin-film layer does not provide any further structure detail to the apparatus. See MPEP §2114. Regarding claim 6, Ohtsu ) in view of Mcallister et al. in view of Biskop discloses a thin film layer forming apparatus comprising: an inkjet head comprising a nozzle for dropping an ink droplet (Ohtsu ¶82); a substrate on which the ink droplet is dropped (Ohtsu ¶82- Note: the substrate is not understood to be part of the apparatus claimed. See MPEP §2114. ); a chromatic confocal sensor configured to irradiate light having a plurality of wavelengths to the ink droplet dropped on the substrate and scan the ink droplet (Ohtsu in view of McAllister.",
"See discussion in regarding claim 1. ); and a controller configured to feedback-control an ejection amount of the nozzle of the inkjet head by calculating the three-dimensional shape of the ink droplet from a signal scanned by the chromatic confocal sensor (Ohtsu ¶82). Ohtsu teaches the known concept of using a confocal sensor for measuring droplets from a inkjet printer where the calculated info is used to adjusting/calibration. It may be however unclear if the system is a integrated apparatus. At the time of the invention it would be obvious to one of ordinary skill in the art to integrate the sensor into a printer. For support see Biskop paragraphs 30-31, which explicitly teaches printers comprising both a printhead unit and a measurement unit were known and used at the time of the invention. As such, even if arguendo, Ohtsu may not explicitly state the system described is a integral apparatus, it was known at the time of the invention the components were capable of being integrated into a single apparatus. Regarding claim 7, Ohtsu ) in view of Mcallister et al. in view of Biskop discloses a thin film layer forming apparatus of claim 6, wherein a plurality of the nozzles are provided to drop a plurality of the ink droplets on the substrate (Ohtsu ¶82). Regarding claim 8, Ohtsu ) in view of Mcallister et al.",
"in view of Biskop discloses a thin film layer forming apparatus of claim 7, wherein: the chromatic confocal sensor is configured to scan the plurality of ink droplets; and the controller is configured to calculate a three-dimensional shape for each of the plurality of ink droplets to feedback-control the ejection amount of each of the plurality of nozzles (Ohtsu ¶82). Regarding claim 9, Ohtsu ) in view of Mcallister et al. in view of Biskop discloses a ink droplet volume measuring apparatus of claim 6 (See regarding claim 1). The further limitation of wherein the ink droplet comprises nanoparticles does not provide any further structure detail to the apparatus. See MPEP §2114.",
"Regarding claim 10, Ohtsu ) in view of Mcallister et al. in view of Biskop discloses a ink droplet volume measuring apparatus of claim 9 (See regarding claim 1). The further limitation of wherein the ink comprises ink for forming a quantum dot thin-film layer does not provide any further structure detail to the apparatus. See MPEP §2114. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to JARRETT J STARK whose telephone number is (571)272-6005. The examiner can normally be reached 8-4 M-F. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brett Feeney can be reached on (571) 270-5484. 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. JARRETT J. STARK Primary Examiner Art Unit 2823 7/18/2022 /JARRETT J STARK/Primary Examiner, Art Unit 2822"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-07-31.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114 A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 01/22/2021 has been entered. Information Disclosure Statement The information disclosure statement filed 01/22/2021 fails to comply with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609 because a legible English translation has not been provided; currently only the German version has been provided. It has been placed in the application file, but the information referred to therein has not been considered as to the merits. Applicant is advised that the date of any re-submission of any item of information contained in this information disclosure statement or the submission of any missing element(s) will be the date of submission for purposes of determining compliance with the requirements based on the time of filing the statement, including all certification requirements for statements under 37 CFR 1.97(e). See MPEP § 609.05(a).
Claim Interpretation The following is a quotation of 35 U.S.C. 112(f):
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph: An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
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;
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function. Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function. 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. 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 Such claim limitation(s) are: Yield data generation system in claim 1. Harvester performance data generation system in claim 1. Logistics performance data generation system in claim 1. Control parameter generation system in claim 1. Control signal generator system in claim 1. Harvester control logic in claim 3. Route controller in claim 4. Speed controller in claim 5. Field sequence identifier logic in claim 9. Road transport factor detector in claim 10. Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. As such; the following interpretations will be made in light of the specification; Yield data generation system, which corresponds to element 160 and as such is part of a computing system, which follows the process outlined in Fig 4. Harvester performance data generation system, which corresponds to element 162 and as such is part of a computing system, which follows the process outlined in Fig 5. Logistics performance data generation system, which corresponds to element 164 and as such is part of a computing system, and follows the process outlined in Fig 3. Control parameter generation system, which corresponds to element 166 and as such is part of a computing system, and consists of field sequence identifier logic, as described in paragraph 00121. Control signal generator system, which corresponds to element 168 and as such is part of a computing system, and includes communication control logic 232, resource deployment control logic 234, harvester/equipment 14control logic 236, and it can include other items 238, as described in paragraph 0041. Route controller, which corresponds to element 240 and as such is part of the control signal generator system based on Fig 2. Speed controller, which corresponds to element 242 and as such is part of the control signal generator system based on Fig 2. Road transport factor detector, which corresponds to element 224 and as such is part of the control parameter system based on Fig 2, which identifies time delays of roadways, as described in paragraphs 0038 and 0052. As indicated by the applicant in page 10 of the remarks, the Harvester control logic and Field sequence identifier logic correspond to hardware structures recited in paragraphs 0084-0085 and 0097 and shown in Fig 2, and as such will be interpreted to processors/memory. If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112 Applicant’s arguments are persuasive regarding the understanding of the ‘logic’ elements, and thus the 112b rejections have been withdrawn.
Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. Claim(s) 1-11, 15-16, 18 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Gilmore (US20150324719A1), and further in view of Johnson (US20130173321A1). Regarding Claim 1, Gilmore teaches; A control computing system (taught as a field operation architecture, Fig 1 element 100) comprising: at least one processor (taught as processors, element 161); and memory storing instructions executable by the at least one processor, wherein the instructions, when executed (taught as program modules as part of computer 810, paragraph 0087), provide; a yield data generation system that generates estimated yield data corresponding to a set of fields to be harvested by a set of harvesters (taught as a management control system, which gets yield data, paragraph 0036); a harvester performance data generation system that generates harvester performance data, indicative of an estimated rate of harvested material harvested by the set of harvesters at the set of fields (taught as a management control system, which gets machine performance data, paragraph 0036); a logistics performance data generation system that generates logistics performance data indicative of an estimated proportion of time the set of harvesters will be engaged in productive harvesting (taught as a management control system, which gets logistics data such as unloading times, transport times, paragraph 0036); a control parameter generation system (taught as a decision support system, paragraph 0065) configured to; detect a target harvest rate, indicative of a target rate at which harvested material is to be harvested (taught as detecting the detecting the volume of product/hour paragraph 0065, Figs 6-7, directed to harvest at target line 400), based on a target harvested material buffer indicative of a target amount of harvested material at a processing facility waiting to be processed (taught as incorporating the queue wait time into the worksite throughput considerations, and modifying the behaviors of the worksites to prevent excessive wait times, paragraph 0058); and generate a set of control parameters based on the target harvest rate, the yield data, the harvester performance data and the logistics performance data (taught as sending recommendations based on performance and harvest rates, such as those shown in Fig 7, element 222); and a control signal generator system that generates a set of harvester control signals, based on the control parameters (taught as the manager system, which is used to adjust control parameters based on the recommendations from the decision support system, paragraph 0061, Fig 5), and maintain the target harvest rate (taught as determining adjustments and modifications to the worksites to achieve a target level of throughput as represented by line 400 in Figs 6-7), However, Gilmore does not teach; generates a set of harvester control signals, based on the control parameters to control the set of harvesters to maintain the target harvest rate. Johnson teaches; generating a set of harvester control signals, based on the control parameters to control the set of harvesters to maintain the target harvest rate (taught as generating a crop harvesting plan that includes starting times and locations and constraints of material and field data, paragraph 0035). It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the scheduling/sequencing of harvested material as taught by Johnson into the system taught by Gilmore in order to increase the efficiency of the overall workflow process and account for longer term planning. For example, if one has multiple crops coming in with only one team in place at the storage facility, there could be bottlenecks in switching where each crop is stored, so by creating a schedule of which crops are to come in when, the storage team can effectively sort the crops. Additionally, this can improve dealing with different harvesting times over the course of a season; for example, wheat can be harvested at different times when compared to pumpkins, and thus such as system taught by Johnson could account and preemptively schedule a season of work. As Gilmore already teaches the use of a work schedule (paragraph 0042), this would be a simple and obvious implementation to make.
Regarding Claim 2, Gilmore as modified by Johnson teaches; The control computing system of claim 1 (see Claim 1 rejection). Gilmore further teaches; wherein the control signal generator system is configured to generate the set of harvester control signals to control the set of harvesters to maintain a harvest rate within a threshold range of the target harvest rate (taught as the manager system, which is used to adjust control parameters based on the recommendations from the decision support system, paragraph 0061, Fig 5, and is in line to accommodate a target harvest rate, as shown in Fig 7, and only adjusts when an error/trigger reaches a threshold value, paragraph 0058).
Regarding Claim 3, Gilmore as modified by Johnson teaches; The control computing system of claim 2 (see Claim 2 rejection). Gilmore further teaches; wherein the control signal generator system comprises: harvester control logic configured to generate harvester control signals to control at least one harvester in the set of harvesters to maintain a desired harvest rate (taught as reallocating resources, such as changing the number of harvesters working a field to maintain a desired mass flow/harvest rate, paragraph 0069).
Regarding Claim 4, Gilmore as modified by Johnson teaches; The control computing system of claim 3 (see Claim 3 rejection). Gilmore further teaches; wherein the harvester control logic comprises: a route controller (taught as a location system, element 27, paragraph 0083) configured to generate, as the set of harvester control signals, route information indicative of a commanded route for the at least one harvester and30J01.12-0156 P28010-US-PRIprovide the route information for a navigation system on the at least one harvester (taught as generating navigation routes for the harvesters, paragraph 0083).
Regarding Claim 5, Gilmore as modified by Johnson teaches; The control computing system of claim 4 (see Claim 4 rejection). Gilmore further teaches; wherein the harvester control logic comprises: a speed controller (taught as a control system, paragraph 0045) configured to generate harvester speed control signals to control a speed of the at least one harvester (taught as adjusting machine operation speed, paragraph 0045).
Regarding Claim 6, Gilmore as modified by Johnson teaches; The control computing system of claim 5 (see Claim 5 rejection). Gilmore further teaches; wherein the set of harvesters are supported by a set of support vehicles (taught as billet wagons, trucks, tractors and trailers, Fig 1, paragraph 0026) and wherein the route controller is configured to generate support vehicle route information indicative of a commanded route at least one support vehicle and provide the support vehicle route information to the at least one support vehicle (taught as the architecture, which includes the location system, configured to control the road transport system including the vehicles, paragraph 0029).
Regarding Claim 7, Gilmore as modified by Johnson teaches; The control computing system of claim 5 (see Claim 5 rejection). Gilmore further teaches; wherein the speed controller is configured to generate support vehicle speed control signals to control a speed of the at least one support vehicle (taught as controlling the speed of other machines, paragraph 0045).
Regarding Claim 8, Gilmore as modified by Johnson teaches; The control computing system of claim 3 (see Claim 3 rejection). Gilmore further teaches; and further comprising: a communication system configured to communicate the harvester control signals to the at least one harvester (taught as a communication system to communicate between the vehicles shown in Fig 2 such as tractors and wagons, and trucks, paragraph 0030); and a communication controller configured to generate communication control signals that control the communication system to send the harvester control signals to the at least one harvester for interaction by an operator of the at least one harvester (taught as sending recommendations based on performance and harvest rates, such as those shown in Fig 7, element 222).
Regarding Claim 9, Gilmore as modified by Johnson teaches; The control computing system of claim 1 (see Claim 1 rejection). Gilmore further teaches; wherein the set of fields to be harvested comprises a plurality of different fields each to be harvested by a different harvester (taught as encompassing multiple inputs from harvesters and fields, paragraph 0044). Johnson teaches; wherein the control parameter generation system comprises; field sequence identifier logic that generates, as a control parameter, a field sequence indicative of an ordered sequence of fields from which harvested material is to be transported to a processing facility (taught as determining a sequence of fields to be harvested, paragraph 0005, which includes details about types of crop/material, transportation and storage, paragraph 0009). It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the scheduling/sequencing of harvested material as taught by Johnson into the system taught by Gilmore in order to increase the efficiency of the overall workflow process and account for longer term planning. For example, if one has multiple crops coming in with only one team in place at the storage facility, there could be bottlenecks in switching where each crop is stored, so by creating a schedule of which crops are to come in when, the storage team can effectively sort the crops. Additionally, this can improve dealing with different harvesting times over the course of a season; for example, wheat can be harvested at different times when compared to pumpkins, and thus such as system taught by Johnson could account and preemptively schedule a season of work. As Gilmore already teaches the use of a work schedule (paragraph 0042), this would be a simple and obvious implementation to make.
Regarding claim 10, Gilmore as modified by Johnson teaches; The control computing system of claim 9 (see Claim 9 rejection). Gilmore further teaches; wherein the control parameter generation system comprises: a road transport factor detector logic (taught as the management and control system, column 5 lines 44, 49) configured to detect road transport factors, the field sequence identifier logic being configured to generate the field sequence based on the road transport factors (taught as determining real-time logistical information about transportation to storage/processing facilities, paragraph 0037-0038).
Regarding Claim 11, Gilmore teaches; A method of controlling a set of harvesters, (taught as a method of a control system, Fig 5a and 5b), comprising: generating yield data corresponding to a set of fields to be harvested by the set of harvesters (taught as generating a model, Fig 5a, step 254, including yield data, paragraph 0036); generating harvester performance data, indicative of an estimated rate of harvested material harvested by the set of harvesters (taught as reviewing machine performance data, Fig 5a step 286); generating logistics performance data indicative of an estimated proportion of time the set of harvesters will be engaged in productive harvesting (taught as obtaining logistics data such as unloading times, transport times, paragraph 0036); detecting a target harvest rate, indicative of a target rate at which harvested material is to be harvested (taught as operations data, Fig 5a step 282, and Fig 6, directed to harvest at target line 400) based on a target harvested material buffer indicative of a target amount of harvested material at a processing facility waiting to be processed (taught as incorporating the queue wait time into the worksite throughput considerations, and modifying the behaviors of the worksites to prevent excessive wait times, paragraph 0058); generating a set of control parameters based on the target harvest rate, the yield data, the harvester performance data and the logistics performance data; and generating a set of harvester control signals, based on the control parameters (taught as adjusting control parameters to achieve target rate, Fig 5b steps 296 and 314), to maintain the target harvest rate (taught as determining adjustments and modifications to the worksites to achieve a target level of throughput as represented by line 400 in Figs 6-7). However, Gilmore does not teach; generating a set of harvester control signals, based on the control parameters to control the set of harvesters to maintain the target rate. Johnson teaches; generating a set of harvester control signals, based on the control parameters to control the set of harvesters to maintain the target rate (taught as generating a crop harvesting plan that includes starting times and locations and field data, paragraph 0035). It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the scheduling/sequencing of harvested material as taught by Johnson into the system taught by Gilmore in order to increase the efficiency of the overall workflow process and account for longer term planning. For example, if one has multiple crops coming in with only one team in place at the storage facility, there could be bottlenecks in switching where each crop is stored, so by creating a schedule of which crops are to come in when, the storage team can effectively sort the crops. Additionally, this can improve dealing with different harvesting times over the course of a season; for example, wheat can be harvested at different times when compared to pumpkins, and thus such as system taught by Johnson could account and preemptively schedule a season of work. As Gilmore already teaches the use of a work schedule (paragraph 0042), this would be a simple and obvious implementation to make.
Regarding Claim 15, Gilmore as modified by Johnson teaches; The method of claim 11 (see Claim 11 rejection). Gilmore further teaches; wherein generating harvester performance data comprises: generating harvester performance data indicative of an estimated rate of harvested material harvested by each harvester (taught as monitoring the performance of individual machines, paragraph 0045).
Regarding Claim 16, Gilmore as modified by Johnson teaches; The method of claim 15 (see Claim 15 rejection). Gilmore further teaches; wherein generating harvester performance data comprises: identifying an operator for each harvester (taught as identifying the operators of the machines, paragraph 0052); and generating harvester performance data for each harvester/operator pair (taught as accounting for their combination with individual machines, paragraph 0052).
Regarding Claim 18, Gilmore as modified by Johnson teaches; The method of claim 11 (see Claim 11 rejection). Gilmore further teaches; wherein each given harvester is part of a front of resources that includes the given harvester and a corresponding set of support vehicles and wherein generating logistics performance data comprises: generating logistics performance data for each front (taught as determining harvest rate/logistics of each phase of work; harvest rate from a harvester, transportation from wagons and trucks, and transport to storage, as shown in Figs 6-7). While explicitly grouping the machines into a ‘front of resources’ is not explicitly taught, It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to group the combination of machines in order to plan the logistics and allocate resources more effectively. For example, knowing that Harvester A works twice as fast with Truck model B than with Truck model C would encourage the manager to pair A and B together and thus improve efficiency and to avoid backups in waiting for one element to finish their task before proceeding to the next.
Regarding Claim 20, Gilmore teaches; A harvester control computing system (taught as a field operation architecture, Fig 1 element 100), comprising: at least one processor (taught as processors, element 161); and memory storing instructions executable by the at least one processor, wherein the instructions, when executed (taught as program modules as part of computer 810, paragraph 0087), provide;
a yield data generation system that generates yield data corresponding to a set of fields being harvested by a set of harvesters (taught as a management control system, which gets yield data, paragraph 0036); a harvester performance data generation system that generates harvester performance data, indicative of an estimated rate of harvested material harvested by the set of harvesters at the set of fields (taught as a management control system, which gets machine performance data, paragraph 0036); 33J01.12-0156 P28010-US-PRI a logistics performance data generation system that generates logistics performance data indicative of an estimated proportion of time the set of harvesters will be engaged in productive harvesting at the set of fields (taught as a management control system, which gets logistics data such as unloading times, transport times, paragraph 0036); a control parameter generation system (taught as a decision support system, paragraph 0065) configured to; detect a target harvested material buffer indicative of a target amount of harvested material at a processing facility waiting to be processed (taught as detecting the detecting the volume of product/hour paragraph 0065, Figs 6-7, directed to harvest at target line 400, and incorporating the queue wait time into the worksite throughput considerations, and modifying the behaviors of the worksites to prevent excessive wait times, paragraph 0058), and generate a set of control parameters based on the target harvested material buffer, the yield data, the harvester performance data and the logistics performance data (taught as sending recommendations based on performance and harvest rates, such as those shown in Fig 7, element 222); and a control signal generator system that generates a set of harvester control signals (taught as the manager system, which is used to adjust control parameters based on the recommendations from the decision support system, paragraph 0061, Fig 5), based on the control parameters to control the set of harvesters to maintain and maintain a buffer of harvested material at the processing facility (taught as determining adjustments and modifications to the worksites to achieve a target level of throughput as represented by line 400 in Figs 6-7),within a threshold range of the target harvested material buffer (taught as a threshold, which is in line to accommodate a target harvest rate, as shown in Fig 7, and only adjusts when an error/ trigger reaches a threshold value, paragraph 0058). However, Gilmore does not teach; generating a field sequence indicative of an ordered sequence of fields from which harvested material is to be transported to a processing facility, and generating a set of harvester control signals, based on the control parameters to have the set of harvesters initiate the harvesting operations at the set of fields. Johnson teaches; generating a field sequence indicative of an ordered sequence of fields from which harvested material is to be transported to a processing facility (taught as determining a sequence of fields to be harvested, paragraph 0005, which includes details about types of crop/material, transportation and storage, paragraph 0009) and generating a set of harvester control signals, based on the control parameters to have the set of harvesters initiate the harvesting operations at the set of fields (taught as generating a crop harvesting plan that includes starting times and locations, paragraph 0035). It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the scheduling/sequencing of harvested material as taught by Johnson into the system taught by Gilmore in order to increase the efficiency of the overall workflow process and account for longer term planning. For example, if one has multiple crops coming in with only one team in place at the storage facility, there could be bottlenecks in switching where each crop is stored, so by creating a schedule of which crops are to come in when, the storage team can effectively sort the crops. Additionally, this can improve dealing with different harvesting times over the course of a season; for example, wheat can be harvested at different times when compared to pumpkins, and thus such as system taught by Johnson could account and preemptively schedule a season of work. As Gilmore already teaches the use of a work schedule (paragraph 0042), this would be a simple and obvious implementation to make.
Claims 12-14, 17 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Gilmore (US9772625B2) as modified by Johnson (US20130173321A1) as applied to claim 11 above, and further in view of Dybro (US9903979B2). Regarding Claim 12, Gilmore as modified by Johnson teaches; The method of claim 11 (see Claim 11 rejection). However, Gilmore does not teach; wherein generating yield data comprises; generating separate yield data for each field in the set of fields. Dybro teaches; wherein generating yield data comprises; generating separate yield data for each field in the set of fields (taught as aggregating yields of different regions, column 1 line 62-column 2 line 4). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to aggregate the yield data as taught by Dybro into the system taught by Gilmore in order to track the performances of different fields, which allows one to better plan current and future crop harvesting and management. For example, Gilmore’s system of tracking target harvest rates could be varied per crop and adjust the logistics to accommodate the differences, such as going to the processing facility for one crop vs a storage facility for another.
Regarding Claim 13, Gilmore as modified by Johnson and Dybro teaches; The method of claim 12 (see Claim 12 rejection). However, Gilmore does not teach; wherein generating yield data comprises generating yield data for individual sections of each field in the set of fields. Dybro teaches; wherein generating yield data comprises; generating yield data for individual sections of each field in the set of fields (taught as aggregating yields of different regions, column 1 line 62-column 2 line 4). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to aggregate the yield data as taught by Dybro into the system taught by Gilmore in order to track the performances of different regions, which allows one to better plan current and future crop harvesting and management. For example, Gilmore’s system of tracking target harvest rates could be varied per region in a field based on the topology, as inclined terrain may impact the harvest rate, and adjust the logistics to accommodate the differences.
Regarding Claim 14, Gilmore as modified by Johnson teaches; The method of claim 11 (see Claim 11 rejection). However, Gilmore does not teach; wherein generating yield data comprises: controlling data store accessing logic to access at least one of a yield map and historic yield data corresponding to the set of fields in a data store; and generating the yield data based on the at least one of a yield map and historic yield data corresponding to the set of fields. Dybro teaches; wherein generating yield data comprises: controlling data store accessing logic to access at least one of a yield map (taught as a yield mapping module mapping the allocation of aggregate yields over different regions, column 10 lines 24-33) and historic yield data corresponding to the set of fields in a data store (taught as determining yield from historical data, column 12 lines 46-59); and generating the yield data based on the at least one of a yield map and historic yield data corresponding to the set of fields (taught as adjusting the yield allocation weighting map based on historical and yield data, column 12 line 53-column 14 line 1). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to aggregate the yield and historical yield data as taught by Dybro into the system taught by Gilmore in order to track the performances of different regions, which allows one to better plan current and future crop harvesting and management. For example, Gilmore’s system of tracking target harvest rates could be varied per region in a field based on past performances in addition to current conditions, such as weather, which would affect the harvest rate.
Regarding Claim 17, Gilmore as modified by Johnson teaches; The method of claim 16 (see Claim 16 rejection). However, Gilmore does not teach; wherein generating harvester performance data comprises: identifying a field in which each harvester/operator pair is to harvest, as a harvester/operator/field combination; and generating the harvester performance data for each harvester/operator/field combination. Dybro teaches; wherein generating harvester performance data comprises: identifying a field in which each harvester/operator pair is to harvest, as a harvester/operator/field combination; and generating the harvester performance data for each harvester/operator/field combination (taught as aggregating yields of different regions, column 1 line 62-column 2 line 4). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to aggregate the yield and historical yield data of the fields, harvesters and operator combinations as taught by Dybro into the system taught by Gilmore in order to track the performances of different regions, which allows one to better plan current and future crop harvesting and management. For example, Gilmore’s system of tracking target harvest rates could be varied per combination in a field based on past performances in addition to current conditions, such as weather, which would affect the harvest rate, and Gilmore already teaches tracking individual harvesters and yield rates, as seen in the Claim 16 rejection. Adding in another variable of the specific field allows one to gain accuracy on the yield rate models and improve harvesting efficiency by adjusting the logistics and resource allocation to match a target harvest rate.
Regarding Claim 19, Gilmore as modified by Johnson teaches; The method of claim 18 (see Claim 18 rejection above). However, Gilmore does not teach; wherein each front has a set of operators and is deployed to a field and wherein generating logistics performance data comprises: generating logistics performance data for each combination of front, set of operators, and field. Dybro teaches; wherein each front has a set of operators and is deployed to a field and wherein generating logistics performance data comprises: generating logistics performance data for each combination of front, set of operators, and field (taught as aggregating yields of different regions, column 1 line 62-column 2 line 4). While explicitly grouping the machines into a ‘front of resources’ is not explicitly taught, It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to group the combination of machines, operators, and fields in order to plan the logistics and allocate resources more effectively. For example, knowing that Harvester A works twice as fast with Crop B would encourage the manager to pair those machines together and thus improve efficiency. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to aggregate the yield and historical yield data as taught by Dybro into the system taught by Gilmore in order to track the performances of different regions, which allows one to better plan current and future crop harvesting and management. For example, Gilmore’s system of tracking target harvest rates could be varied per region in a field based on past performances in addition to current conditions, such as weather, which would affect the harvest rate.
Response to Arguments The applicant amended the drawings and claims to fix the prior objections, as noted on page 8 of the remarks, and thus the objections are withdrawn. The applicant argues that the claims should not be interpreted under 112f on pages 8 of the remarks because the person of ordinary skill in the art would understand the terms. As a reminder, invocation of 112f is required when the three prong test, reproduced below, is fulfilled. 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; (in this case, system, controller or logic) (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”; (in this case; generates or detects) 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 (in this case, no further structure is presented within the claim language). Specifically, logic and systems do not connote structural elements that one of ordinary skill in the art would be able to identify. Systems and logics are so broad that they could encompass almost anything without the details provided in the specification from the 112f invocation, and would not be sufficient to detail how the function is performed without it.
The applicant argues on pages 9-11 that the amended independent claims 1, 11 and 20 are allowable over the prior art, as neither Gilmore nor Johnson teach the amended material of “based on a target harvested material buffer indicative of a target amount of harvested material at a processing facility waiting to be processed”. The examiner respectfully disagrees. While Gilmore does not use the term ‘buffer’, Gilmore does teach maintaining a throughput rate [line 400 in figs 6-7] based on queue times at a processing facility (paragraph 0058), as argued above. Ensuring that the queue time is at a certain level helps prevent bottlenecks in processing and movement of material and conform to the modeled operation to improve performance. Thus, the rejection above is maintained.
The applicant argues on page 12 that the dependent claims, on being dependent on allowable subject matter, are also allowable. In light of the above rejections, this argument is rendered moot.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to GABRIEL ANFINRUD whose telephone number is (571)270-3401. The examiner can normally be reached on M-F 9:30-5:30. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is 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, Jelani Smith can be reached on (571)270-3969. 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. /GABRIEL ANFINRUD/Examiner, Art Unit 3662 /MAHMOUD S ISMAIL/Primary Examiner, Art Unit 3662 | 2021-03-09T12:59:48 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Continued Examination Under 37 CFR 1.114 A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.",
"Applicant's submission filed on 01/22/2021 has been entered. Information Disclosure Statement The information disclosure statement filed 01/22/2021 fails to comply with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609 because a legible English translation has not been provided; currently only the German version has been provided. It has been placed in the application file, but the information referred to therein has not been considered as to the merits. Applicant is advised that the date of any re-submission of any item of information contained in this information disclosure statement or the submission of any missing element(s) will be the date of submission for purposes of determining compliance with the requirements based on the time of filing the statement, including all certification requirements for statements under 37 CFR 1.97(e). See MPEP § 609.05(a).",
"Claim Interpretation The following is a quotation of 35 U.S.C. 112(f): The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph: An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. 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; (C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function. Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C.",
"112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function. 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. 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 Such claim limitation(s) are: Yield data generation system in claim 1.",
"Harvester performance data generation system in claim 1. Logistics performance data generation system in claim 1. Control parameter generation system in claim 1. Control signal generator system in claim 1. Harvester control logic in claim 3. Route controller in claim 4. Speed controller in claim 5. Field sequence identifier logic in claim 9. Road transport factor detector in claim 10. Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. As such; the following interpretations will be made in light of the specification; Yield data generation system, which corresponds to element 160 and as such is part of a computing system, which follows the process outlined in Fig 4.",
"Harvester performance data generation system, which corresponds to element 162 and as such is part of a computing system, which follows the process outlined in Fig 5. Logistics performance data generation system, which corresponds to element 164 and as such is part of a computing system, and follows the process outlined in Fig 3. Control parameter generation system, which corresponds to element 166 and as such is part of a computing system, and consists of field sequence identifier logic, as described in paragraph 00121. Control signal generator system, which corresponds to element 168 and as such is part of a computing system, and includes communication control logic 232, resource deployment control logic 234, harvester/equipment 14control logic 236, and it can include other items 238, as described in paragraph 0041.",
"Route controller, which corresponds to element 240 and as such is part of the control signal generator system based on Fig 2. Speed controller, which corresponds to element 242 and as such is part of the control signal generator system based on Fig 2. Road transport factor detector, which corresponds to element 224 and as such is part of the control parameter system based on Fig 2, which identifies time delays of roadways, as described in paragraphs 0038 and 0052. As indicated by the applicant in page 10 of the remarks, the Harvester control logic and Field sequence identifier logic correspond to hardware structures recited in paragraphs 0084-0085 and 0097 and shown in Fig 2, and as such will be interpreted to processors/memory. If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C.",
"112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. Claim Rejections - 35 USC § 112 Applicant’s arguments are persuasive regarding the understanding of the ‘logic’ elements, and thus the 112b rejections have been withdrawn. Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.",
"Patentability shall not be negated by the manner in which the invention was made. The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. Claim(s) 1-11, 15-16, 18 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Gilmore (US20150324719A1), and further in view of Johnson (US20130173321A1).",
"Regarding Claim 1, Gilmore teaches; A control computing system (taught as a field operation architecture, Fig 1 element 100) comprising: at least one processor (taught as processors, element 161); and memory storing instructions executable by the at least one processor, wherein the instructions, when executed (taught as program modules as part of computer 810, paragraph 0087), provide; a yield data generation system that generates estimated yield data corresponding to a set of fields to be harvested by a set of harvesters (taught as a management control system, which gets yield data, paragraph 0036); a harvester performance data generation system that generates harvester performance data, indicative of an estimated rate of harvested material harvested by the set of harvesters at the set of fields (taught as a management control system, which gets machine performance data, paragraph 0036); a logistics performance data generation system that generates logistics performance data indicative of an estimated proportion of time the set of harvesters will be engaged in productive harvesting (taught as a management control system, which gets logistics data such as unloading times, transport times, paragraph 0036); a control parameter generation system (taught as a decision support system, paragraph 0065) configured to; detect a target harvest rate, indicative of a target rate at which harvested material is to be harvested (taught as detecting the detecting the volume of product/hour paragraph 0065, Figs 6-7, directed to harvest at target line 400), based on a target harvested material buffer indicative of a target amount of harvested material at a processing facility waiting to be processed (taught as incorporating the queue wait time into the worksite throughput considerations, and modifying the behaviors of the worksites to prevent excessive wait times, paragraph 0058); and generate a set of control parameters based on the target harvest rate, the yield data, the harvester performance data and the logistics performance data (taught as sending recommendations based on performance and harvest rates, such as those shown in Fig 7, element 222); and a control signal generator system that generates a set of harvester control signals, based on the control parameters (taught as the manager system, which is used to adjust control parameters based on the recommendations from the decision support system, paragraph 0061, Fig 5), and maintain the target harvest rate (taught as determining adjustments and modifications to the worksites to achieve a target level of throughput as represented by line 400 in Figs 6-7), However, Gilmore does not teach; generates a set of harvester control signals, based on the control parameters to control the set of harvesters to maintain the target harvest rate.",
"Johnson teaches; generating a set of harvester control signals, based on the control parameters to control the set of harvesters to maintain the target harvest rate (taught as generating a crop harvesting plan that includes starting times and locations and constraints of material and field data, paragraph 0035). It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the scheduling/sequencing of harvested material as taught by Johnson into the system taught by Gilmore in order to increase the efficiency of the overall workflow process and account for longer term planning. For example, if one has multiple crops coming in with only one team in place at the storage facility, there could be bottlenecks in switching where each crop is stored, so by creating a schedule of which crops are to come in when, the storage team can effectively sort the crops.",
"Additionally, this can improve dealing with different harvesting times over the course of a season; for example, wheat can be harvested at different times when compared to pumpkins, and thus such as system taught by Johnson could account and preemptively schedule a season of work. As Gilmore already teaches the use of a work schedule (paragraph 0042), this would be a simple and obvious implementation to make. Regarding Claim 2, Gilmore as modified by Johnson teaches; The control computing system of claim 1 (see Claim 1 rejection). Gilmore further teaches; wherein the control signal generator system is configured to generate the set of harvester control signals to control the set of harvesters to maintain a harvest rate within a threshold range of the target harvest rate (taught as the manager system, which is used to adjust control parameters based on the recommendations from the decision support system, paragraph 0061, Fig 5, and is in line to accommodate a target harvest rate, as shown in Fig 7, and only adjusts when an error/trigger reaches a threshold value, paragraph 0058). Regarding Claim 3, Gilmore as modified by Johnson teaches; The control computing system of claim 2 (see Claim 2 rejection). Gilmore further teaches; wherein the control signal generator system comprises: harvester control logic configured to generate harvester control signals to control at least one harvester in the set of harvesters to maintain a desired harvest rate (taught as reallocating resources, such as changing the number of harvesters working a field to maintain a desired mass flow/harvest rate, paragraph 0069).",
"Regarding Claim 4, Gilmore as modified by Johnson teaches; The control computing system of claim 3 (see Claim 3 rejection). Gilmore further teaches; wherein the harvester control logic comprises: a route controller (taught as a location system, element 27, paragraph 0083) configured to generate, as the set of harvester control signals, route information indicative of a commanded route for the at least one harvester and30J01.12-0156 P28010-US-PRIprovide the route information for a navigation system on the at least one harvester (taught as generating navigation routes for the harvesters, paragraph 0083). Regarding Claim 5, Gilmore as modified by Johnson teaches; The control computing system of claim 4 (see Claim 4 rejection). Gilmore further teaches; wherein the harvester control logic comprises: a speed controller (taught as a control system, paragraph 0045) configured to generate harvester speed control signals to control a speed of the at least one harvester (taught as adjusting machine operation speed, paragraph 0045).",
"Regarding Claim 6, Gilmore as modified by Johnson teaches; The control computing system of claim 5 (see Claim 5 rejection). Gilmore further teaches; wherein the set of harvesters are supported by a set of support vehicles (taught as billet wagons, trucks, tractors and trailers, Fig 1, paragraph 0026) and wherein the route controller is configured to generate support vehicle route information indicative of a commanded route at least one support vehicle and provide the support vehicle route information to the at least one support vehicle (taught as the architecture, which includes the location system, configured to control the road transport system including the vehicles, paragraph 0029). Regarding Claim 7, Gilmore as modified by Johnson teaches; The control computing system of claim 5 (see Claim 5 rejection). Gilmore further teaches; wherein the speed controller is configured to generate support vehicle speed control signals to control a speed of the at least one support vehicle (taught as controlling the speed of other machines, paragraph 0045). Regarding Claim 8, Gilmore as modified by Johnson teaches; The control computing system of claim 3 (see Claim 3 rejection). Gilmore further teaches; and further comprising: a communication system configured to communicate the harvester control signals to the at least one harvester (taught as a communication system to communicate between the vehicles shown in Fig 2 such as tractors and wagons, and trucks, paragraph 0030); and a communication controller configured to generate communication control signals that control the communication system to send the harvester control signals to the at least one harvester for interaction by an operator of the at least one harvester (taught as sending recommendations based on performance and harvest rates, such as those shown in Fig 7, element 222).",
"Regarding Claim 9, Gilmore as modified by Johnson teaches; The control computing system of claim 1 (see Claim 1 rejection). Gilmore further teaches; wherein the set of fields to be harvested comprises a plurality of different fields each to be harvested by a different harvester (taught as encompassing multiple inputs from harvesters and fields, paragraph 0044). Johnson teaches; wherein the control parameter generation system comprises; field sequence identifier logic that generates, as a control parameter, a field sequence indicative of an ordered sequence of fields from which harvested material is to be transported to a processing facility (taught as determining a sequence of fields to be harvested, paragraph 0005, which includes details about types of crop/material, transportation and storage, paragraph 0009). It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the scheduling/sequencing of harvested material as taught by Johnson into the system taught by Gilmore in order to increase the efficiency of the overall workflow process and account for longer term planning. For example, if one has multiple crops coming in with only one team in place at the storage facility, there could be bottlenecks in switching where each crop is stored, so by creating a schedule of which crops are to come in when, the storage team can effectively sort the crops.",
"Additionally, this can improve dealing with different harvesting times over the course of a season; for example, wheat can be harvested at different times when compared to pumpkins, and thus such as system taught by Johnson could account and preemptively schedule a season of work. As Gilmore already teaches the use of a work schedule (paragraph 0042), this would be a simple and obvious implementation to make. Regarding claim 10, Gilmore as modified by Johnson teaches; The control computing system of claim 9 (see Claim 9 rejection). Gilmore further teaches; wherein the control parameter generation system comprises: a road transport factor detector logic (taught as the management and control system, column 5 lines 44, 49) configured to detect road transport factors, the field sequence identifier logic being configured to generate the field sequence based on the road transport factors (taught as determining real-time logistical information about transportation to storage/processing facilities, paragraph 0037-0038).",
"Regarding Claim 11, Gilmore teaches; A method of controlling a set of harvesters, (taught as a method of a control system, Fig 5a and 5b), comprising: generating yield data corresponding to a set of fields to be harvested by the set of harvesters (taught as generating a model, Fig 5a, step 254, including yield data, paragraph 0036); generating harvester performance data, indicative of an estimated rate of harvested material harvested by the set of harvesters (taught as reviewing machine performance data, Fig 5a step 286); generating logistics performance data indicative of an estimated proportion of time the set of harvesters will be engaged in productive harvesting (taught as obtaining logistics data such as unloading times, transport times, paragraph 0036); detecting a target harvest rate, indicative of a target rate at which harvested material is to be harvested (taught as operations data, Fig 5a step 282, and Fig 6, directed to harvest at target line 400) based on a target harvested material buffer indicative of a target amount of harvested material at a processing facility waiting to be processed (taught as incorporating the queue wait time into the worksite throughput considerations, and modifying the behaviors of the worksites to prevent excessive wait times, paragraph 0058); generating a set of control parameters based on the target harvest rate, the yield data, the harvester performance data and the logistics performance data; and generating a set of harvester control signals, based on the control parameters (taught as adjusting control parameters to achieve target rate, Fig 5b steps 296 and 314), to maintain the target harvest rate (taught as determining adjustments and modifications to the worksites to achieve a target level of throughput as represented by line 400 in Figs 6-7).",
"However, Gilmore does not teach; generating a set of harvester control signals, based on the control parameters to control the set of harvesters to maintain the target rate. Johnson teaches; generating a set of harvester control signals, based on the control parameters to control the set of harvesters to maintain the target rate (taught as generating a crop harvesting plan that includes starting times and locations and field data, paragraph 0035). It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the scheduling/sequencing of harvested material as taught by Johnson into the system taught by Gilmore in order to increase the efficiency of the overall workflow process and account for longer term planning.",
"For example, if one has multiple crops coming in with only one team in place at the storage facility, there could be bottlenecks in switching where each crop is stored, so by creating a schedule of which crops are to come in when, the storage team can effectively sort the crops. Additionally, this can improve dealing with different harvesting times over the course of a season; for example, wheat can be harvested at different times when compared to pumpkins, and thus such as system taught by Johnson could account and preemptively schedule a season of work. As Gilmore already teaches the use of a work schedule (paragraph 0042), this would be a simple and obvious implementation to make. Regarding Claim 15, Gilmore as modified by Johnson teaches; The method of claim 11 (see Claim 11 rejection).",
"Gilmore further teaches; wherein generating harvester performance data comprises: generating harvester performance data indicative of an estimated rate of harvested material harvested by each harvester (taught as monitoring the performance of individual machines, paragraph 0045). Regarding Claim 16, Gilmore as modified by Johnson teaches; The method of claim 15 (see Claim 15 rejection). Gilmore further teaches; wherein generating harvester performance data comprises: identifying an operator for each harvester (taught as identifying the operators of the machines, paragraph 0052); and generating harvester performance data for each harvester/operator pair (taught as accounting for their combination with individual machines, paragraph 0052). Regarding Claim 18, Gilmore as modified by Johnson teaches; The method of claim 11 (see Claim 11 rejection). Gilmore further teaches; wherein each given harvester is part of a front of resources that includes the given harvester and a corresponding set of support vehicles and wherein generating logistics performance data comprises: generating logistics performance data for each front (taught as determining harvest rate/logistics of each phase of work; harvest rate from a harvester, transportation from wagons and trucks, and transport to storage, as shown in Figs 6-7).",
"While explicitly grouping the machines into a ‘front of resources’ is not explicitly taught, It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to group the combination of machines in order to plan the logistics and allocate resources more effectively. For example, knowing that Harvester A works twice as fast with Truck model B than with Truck model C would encourage the manager to pair A and B together and thus improve efficiency and to avoid backups in waiting for one element to finish their task before proceeding to the next.",
"Regarding Claim 20, Gilmore teaches; A harvester control computing system (taught as a field operation architecture, Fig 1 element 100), comprising: at least one processor (taught as processors, element 161); and memory storing instructions executable by the at least one processor, wherein the instructions, when executed (taught as program modules as part of computer 810, paragraph 0087), provide; a yield data generation system that generates yield data corresponding to a set of fields being harvested by a set of harvesters (taught as a management control system, which gets yield data, paragraph 0036); a harvester performance data generation system that generates harvester performance data, indicative of an estimated rate of harvested material harvested by the set of harvesters at the set of fields (taught as a management control system, which gets machine performance data, paragraph 0036); 33J01.12-0156 P28010-US-PRI a logistics performance data generation system that generates logistics performance data indicative of an estimated proportion of time the set of harvesters will be engaged in productive harvesting at the set of fields (taught as a management control system, which gets logistics data such as unloading times, transport times, paragraph 0036); a control parameter generation system (taught as a decision support system, paragraph 0065) configured to; detect a target harvested material buffer indicative of a target amount of harvested material at a processing facility waiting to be processed (taught as detecting the detecting the volume of product/hour paragraph 0065, Figs 6-7, directed to harvest at target line 400, and incorporating the queue wait time into the worksite throughput considerations, and modifying the behaviors of the worksites to prevent excessive wait times, paragraph 0058), and generate a set of control parameters based on the target harvested material buffer, the yield data, the harvester performance data and the logistics performance data (taught as sending recommendations based on performance and harvest rates, such as those shown in Fig 7, element 222); and a control signal generator system that generates a set of harvester control signals (taught as the manager system, which is used to adjust control parameters based on the recommendations from the decision support system, paragraph 0061, Fig 5), based on the control parameters to control the set of harvesters to maintain and maintain a buffer of harvested material at the processing facility (taught as determining adjustments and modifications to the worksites to achieve a target level of throughput as represented by line 400 in Figs 6-7),within a threshold range of the target harvested material buffer (taught as a threshold, which is in line to accommodate a target harvest rate, as shown in Fig 7, and only adjusts when an error/ trigger reaches a threshold value, paragraph 0058).",
"However, Gilmore does not teach; generating a field sequence indicative of an ordered sequence of fields from which harvested material is to be transported to a processing facility, and generating a set of harvester control signals, based on the control parameters to have the set of harvesters initiate the harvesting operations at the set of fields. Johnson teaches; generating a field sequence indicative of an ordered sequence of fields from which harvested material is to be transported to a processing facility (taught as determining a sequence of fields to be harvested, paragraph 0005, which includes details about types of crop/material, transportation and storage, paragraph 0009) and generating a set of harvester control signals, based on the control parameters to have the set of harvesters initiate the harvesting operations at the set of fields (taught as generating a crop harvesting plan that includes starting times and locations, paragraph 0035). It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the scheduling/sequencing of harvested material as taught by Johnson into the system taught by Gilmore in order to increase the efficiency of the overall workflow process and account for longer term planning.",
"For example, if one has multiple crops coming in with only one team in place at the storage facility, there could be bottlenecks in switching where each crop is stored, so by creating a schedule of which crops are to come in when, the storage team can effectively sort the crops. Additionally, this can improve dealing with different harvesting times over the course of a season; for example, wheat can be harvested at different times when compared to pumpkins, and thus such as system taught by Johnson could account and preemptively schedule a season of work. As Gilmore already teaches the use of a work schedule (paragraph 0042), this would be a simple and obvious implementation to make. Claims 12-14, 17 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Gilmore (US9772625B2) as modified by Johnson (US20130173321A1) as applied to claim 11 above, and further in view of Dybro (US9903979B2).",
"Regarding Claim 12, Gilmore as modified by Johnson teaches; The method of claim 11 (see Claim 11 rejection). However, Gilmore does not teach; wherein generating yield data comprises; generating separate yield data for each field in the set of fields. Dybro teaches; wherein generating yield data comprises; generating separate yield data for each field in the set of fields (taught as aggregating yields of different regions, column 1 line 62-column 2 line 4). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to aggregate the yield data as taught by Dybro into the system taught by Gilmore in order to track the performances of different fields, which allows one to better plan current and future crop harvesting and management.",
"For example, Gilmore’s system of tracking target harvest rates could be varied per crop and adjust the logistics to accommodate the differences, such as going to the processing facility for one crop vs a storage facility for another. Regarding Claim 13, Gilmore as modified by Johnson and Dybro teaches; The method of claim 12 (see Claim 12 rejection). However, Gilmore does not teach; wherein generating yield data comprises generating yield data for individual sections of each field in the set of fields. Dybro teaches; wherein generating yield data comprises; generating yield data for individual sections of each field in the set of fields (taught as aggregating yields of different regions, column 1 line 62-column 2 line 4). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to aggregate the yield data as taught by Dybro into the system taught by Gilmore in order to track the performances of different regions, which allows one to better plan current and future crop harvesting and management. For example, Gilmore’s system of tracking target harvest rates could be varied per region in a field based on the topology, as inclined terrain may impact the harvest rate, and adjust the logistics to accommodate the differences. Regarding Claim 14, Gilmore as modified by Johnson teaches; The method of claim 11 (see Claim 11 rejection).",
"However, Gilmore does not teach; wherein generating yield data comprises: controlling data store accessing logic to access at least one of a yield map and historic yield data corresponding to the set of fields in a data store; and generating the yield data based on the at least one of a yield map and historic yield data corresponding to the set of fields. Dybro teaches; wherein generating yield data comprises: controlling data store accessing logic to access at least one of a yield map (taught as a yield mapping module mapping the allocation of aggregate yields over different regions, column 10 lines 24-33) and historic yield data corresponding to the set of fields in a data store (taught as determining yield from historical data, column 12 lines 46-59); and generating the yield data based on the at least one of a yield map and historic yield data corresponding to the set of fields (taught as adjusting the yield allocation weighting map based on historical and yield data, column 12 line 53-column 14 line 1).",
"It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to aggregate the yield and historical yield data as taught by Dybro into the system taught by Gilmore in order to track the performances of different regions, which allows one to better plan current and future crop harvesting and management. For example, Gilmore’s system of tracking target harvest rates could be varied per region in a field based on past performances in addition to current conditions, such as weather, which would affect the harvest rate. Regarding Claim 17, Gilmore as modified by Johnson teaches; The method of claim 16 (see Claim 16 rejection). However, Gilmore does not teach; wherein generating harvester performance data comprises: identifying a field in which each harvester/operator pair is to harvest, as a harvester/operator/field combination; and generating the harvester performance data for each harvester/operator/field combination.",
"Dybro teaches; wherein generating harvester performance data comprises: identifying a field in which each harvester/operator pair is to harvest, as a harvester/operator/field combination; and generating the harvester performance data for each harvester/operator/field combination (taught as aggregating yields of different regions, column 1 line 62-column 2 line 4). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to aggregate the yield and historical yield data of the fields, harvesters and operator combinations as taught by Dybro into the system taught by Gilmore in order to track the performances of different regions, which allows one to better plan current and future crop harvesting and management.",
"For example, Gilmore’s system of tracking target harvest rates could be varied per combination in a field based on past performances in addition to current conditions, such as weather, which would affect the harvest rate, and Gilmore already teaches tracking individual harvesters and yield rates, as seen in the Claim 16 rejection. Adding in another variable of the specific field allows one to gain accuracy on the yield rate models and improve harvesting efficiency by adjusting the logistics and resource allocation to match a target harvest rate. Regarding Claim 19, Gilmore as modified by Johnson teaches; The method of claim 18 (see Claim 18 rejection above). However, Gilmore does not teach; wherein each front has a set of operators and is deployed to a field and wherein generating logistics performance data comprises: generating logistics performance data for each combination of front, set of operators, and field.",
"Dybro teaches; wherein each front has a set of operators and is deployed to a field and wherein generating logistics performance data comprises: generating logistics performance data for each combination of front, set of operators, and field (taught as aggregating yields of different regions, column 1 line 62-column 2 line 4). While explicitly grouping the machines into a ‘front of resources’ is not explicitly taught, It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to group the combination of machines, operators, and fields in order to plan the logistics and allocate resources more effectively. For example, knowing that Harvester A works twice as fast with Crop B would encourage the manager to pair those machines together and thus improve efficiency.",
"It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to aggregate the yield and historical yield data as taught by Dybro into the system taught by Gilmore in order to track the performances of different regions, which allows one to better plan current and future crop harvesting and management. For example, Gilmore’s system of tracking target harvest rates could be varied per region in a field based on past performances in addition to current conditions, such as weather, which would affect the harvest rate. Response to Arguments The applicant amended the drawings and claims to fix the prior objections, as noted on page 8 of the remarks, and thus the objections are withdrawn. The applicant argues that the claims should not be interpreted under 112f on pages 8 of the remarks because the person of ordinary skill in the art would understand the terms.",
"As a reminder, invocation of 112f is required when the three prong test, reproduced below, is fulfilled. 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; (in this case, system, controller or logic) (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”; (in this case; generates or detects) 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 (in this case, no further structure is presented within the claim language).",
"Specifically, logic and systems do not connote structural elements that one of ordinary skill in the art would be able to identify. Systems and logics are so broad that they could encompass almost anything without the details provided in the specification from the 112f invocation, and would not be sufficient to detail how the function is performed without it. The applicant argues on pages 9-11 that the amended independent claims 1, 11 and 20 are allowable over the prior art, as neither Gilmore nor Johnson teach the amended material of “based on a target harvested material buffer indicative of a target amount of harvested material at a processing facility waiting to be processed”. The examiner respectfully disagrees. While Gilmore does not use the term ‘buffer’, Gilmore does teach maintaining a throughput rate [line 400 in figs 6-7] based on queue times at a processing facility (paragraph 0058), as argued above.",
"Ensuring that the queue time is at a certain level helps prevent bottlenecks in processing and movement of material and conform to the modeled operation to improve performance. Thus, the rejection above is maintained. The applicant argues on page 12 that the dependent claims, on being dependent on allowable subject matter, are also allowable. In light of the above rejections, this argument is rendered moot. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to GABRIEL ANFINRUD whose telephone number is (571)270-3401. The examiner can normally be reached on M-F 9:30-5:30. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is 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, Jelani Smith can be reached on (571)270-3969. 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.",
"/GABRIEL ANFINRUD/Examiner, Art Unit 3662 /MAHMOUD S ISMAIL/Primary Examiner, Art Unit 3662"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-02-28.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
POULIOT, J. After a jury returned a verdict for the plaintiff in the sum of $2,500, the defendant moves for a new trial on the usual grounds. The plaintiff’s claim is, in substance, that on November 24, 1930, Charles Reynolds, her father,- through the negligence of the defendant, received injuries which resulted in his death on March 15, 1931. It appears that on the afternoon of November 24, 1930, Mr. Reynolds, who was employed by the Lorraine Mills in Pawtucket as a traffic policeman, had been engaged in directing the movement of automobiles in front of the company’s plant while employees were leaving after their day’s work, and was struck by an automobile operated by the defendant. The plaintiff claims that the deceased was standing in the roadway about three feet out from the curb; that as defendant’s automobile approached, deceased held up his left hand as a signal to the defendant to stop; that defendant’s car continued on and did not stop until it had gone about three feet beyond the point where it hit the deceased. The defendant’s contention is that the deceased was on the sidewalk; that defendant’s automobile turned out. to pass a parked vehicle, turned in toward the curbing, and that the deceased suddenly stepped off the sidewalk into the path of defendant’s car. There is a clear conflict as to how the accident happened. The determination of the contributory negligence of the deceased and of the negligence of the defendant were questions of fact for the jury to decide, and the Court cannot disturb the jury’s finding on that determination, as there is ample credible evidence to support the verdict on that phase of the case. The important point in this case is whether or not the plaintiff has proven, in accordance with the rules, that her father died as the result of the injuries he received in this accident. Mrs. Malone testified that she had never known her father to be sick. Mr. Reynolds, in a statement given on January 16, 1931, to Walter J. Halliday, an investigator for the Liability Mutual Insurance Co., said, “I have never been sick for the past 12 or 14 years when I was operated on for hernia.’This would seem 'to indicate that Mr. Reynolds was a man in good health at the time of the accident. The testimony of Dr. J. L. Turner, who was called by the plaintiff, leads us to believe that Mrs. Malone and Mr. Reynolds were both mistaken as to the condition of the health of the deceased. About -three weeks before the accident happened, Dr. Turner had begun treating the deceased. At that time he found him suffering from chronic nephritis, chronic heart trouble and high blood pressure. He determined his diagnosis from an examination which revealed to him: 1. Albumen, 2. Arterial pressure, 3. Some enlargement of the heart. According to the death return, Mr. Reynolds died of uremia, chronic myo-carditis and hypertension. For plaintiff: Fergus J. McOsker. For defendant: Frank H. Beilin, A. S. Helford. Dr. Turner told us that uremia is auto-intoxication, a condition having a duration of from- ten days to three weeks, fatal, and follows the impairment of the kidneys which become progressively toxic as a result of their nephritic condition. In Mr. Reynolds the nephritic condition had been of some duration, as he found it to be chronic when he examined him prior to the accident. Dr. Turner also stated that in his opinion the injuries accelerated his condition and affected the date of his death, but, as the Court’s notes reveal, only after considerable hesitation. He would not state to what extent the injuries might affect the condition of the deceased. On the other hand, he readily admitted -that, given the physical condition in which he found Mr. Reynolds when he examined him prior to the accident, Mr. Reynolds could have died any day following this examination from the diseases then obtaining in the patient. The Court feels that the plaintiff has not proven her claim with reference to the death of Charles Reynolds by a fair preponderance of the evi dence. In view of the fact that the Court sees no foundation for assessing damages, no evidence being adduced that the deceased would have lived a single additional day but for this accident, it feels that the award of $2,500 was unwarranted. There should have been no verdict for damages to the plaintiff. Therefore, defendant’s motion for r new trial is granted. | 10-17-2022 | [
"POULIOT, J. After a jury returned a verdict for the plaintiff in the sum of $2,500, the defendant moves for a new trial on the usual grounds. The plaintiff’s claim is, in substance, that on November 24, 1930, Charles Reynolds, her father,- through the negligence of the defendant, received injuries which resulted in his death on March 15, 1931. It appears that on the afternoon of November 24, 1930, Mr. Reynolds, who was employed by the Lorraine Mills in Pawtucket as a traffic policeman, had been engaged in directing the movement of automobiles in front of the company’s plant while employees were leaving after their day’s work, and was struck by an automobile operated by the defendant. The plaintiff claims that the deceased was standing in the roadway about three feet out from the curb; that as defendant’s automobile approached, deceased held up his left hand as a signal to the defendant to stop; that defendant’s car continued on and did not stop until it had gone about three feet beyond the point where it hit the deceased.",
"The defendant’s contention is that the deceased was on the sidewalk; that defendant’s automobile turned out. to pass a parked vehicle, turned in toward the curbing, and that the deceased suddenly stepped off the sidewalk into the path of defendant’s car. There is a clear conflict as to how the accident happened. The determination of the contributory negligence of the deceased and of the negligence of the defendant were questions of fact for the jury to decide, and the Court cannot disturb the jury’s finding on that determination, as there is ample credible evidence to support the verdict on that phase of the case. The important point in this case is whether or not the plaintiff has proven, in accordance with the rules, that her father died as the result of the injuries he received in this accident. Mrs. Malone testified that she had never known her father to be sick. Mr. Reynolds, in a statement given on January 16, 1931, to Walter J. Halliday, an investigator for the Liability Mutual Insurance Co., said, “I have never been sick for the past 12 or 14 years when I was operated on for hernia.’This would seem 'to indicate that Mr. Reynolds was a man in good health at the time of the accident.",
"The testimony of Dr. J. L. Turner, who was called by the plaintiff, leads us to believe that Mrs. Malone and Mr. Reynolds were both mistaken as to the condition of the health of the deceased. About -three weeks before the accident happened, Dr. Turner had begun treating the deceased. At that time he found him suffering from chronic nephritis, chronic heart trouble and high blood pressure. He determined his diagnosis from an examination which revealed to him: 1. Albumen, 2. Arterial pressure, 3. Some enlargement of the heart. According to the death return, Mr. Reynolds died of uremia, chronic myo-carditis and hypertension. For plaintiff: Fergus J. McOsker.",
"For defendant: Frank H. Beilin, A. S. Helford. Dr. Turner told us that uremia is auto-intoxication, a condition having a duration of from- ten days to three weeks, fatal, and follows the impairment of the kidneys which become progressively toxic as a result of their nephritic condition. In Mr. Reynolds the nephritic condition had been of some duration, as he found it to be chronic when he examined him prior to the accident. Dr. Turner also stated that in his opinion the injuries accelerated his condition and affected the date of his death, but, as the Court’s notes reveal, only after considerable hesitation. He would not state to what extent the injuries might affect the condition of the deceased.",
"On the other hand, he readily admitted -that, given the physical condition in which he found Mr. Reynolds when he examined him prior to the accident, Mr. Reynolds could have died any day following this examination from the diseases then obtaining in the patient. The Court feels that the plaintiff has not proven her claim with reference to the death of Charles Reynolds by a fair preponderance of the evi dence. In view of the fact that the Court sees no foundation for assessing damages, no evidence being adduced that the deceased would have lived a single additional day but for this accident, it feels that the award of $2,500 was unwarranted. There should have been no verdict for damages to the plaintiff.",
"Therefore, defendant’s motion for r new trial is granted."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8289216/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:15-cv-07433-LAP Document 1198-23 Filed 01/27/21 Page 1 of 2
Exhibit 7 (File Under Seal) Case 1:15-cv-07433-LAP Document 1198-23 Filed 01/27/21 Page 2 of 2
GIUFFRE006636 CONFIDENTIAL | 2021-01-27 | [
"Case 1:15-cv-07433-LAP Document 1198-23 Filed 01/27/21 Page 1 of 2 Exhibit 7 (File Under Seal) Case 1:15-cv-07433-LAP Document 1198-23 Filed 01/27/21 Page 2 of 2 GIUFFRE006636 CONFIDENTIAL"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/159154534/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________
RONALD ROBINSON,
Plaintiff, 1:18-CV-1222 v. (GTS/DEP)
MEDICAL ANSWERING SERVICE,
Defendant. _____________________________________________
APPEARANCES:
RONALD ROBINSON Plaintiff, Pro Se 121 Lafayette Road Syracuse, New York 13205
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se employment discrimination action filed by
Ronald Robinson (“Plaintiff”) against Medical Answering Service (“Defendant MAS”), is
United States Magistrate Judge David E. Peebles’ Report-Recommendation recommending that
Plaintiff’s Complaint be dismissed with leave to amend. (Dkt. No. 4.) For the reasons set forth
below, Magistrate Judge Peebles’ Report-Recommendation is accepted and adopted in its
entirety; Plaintiff’s claim of employment discrimination based on gender under Title VII is
dismissed with prejudice; and his remaining two claims in his Amended Complaint (i.e., his
claim of employment discrimination based on race under Title VII against Defendant MAS, and
his claim of defamation under New York State common law against Defendant MAS and two
individual Defendants) survive the undersigned’s sua sponte review of the Amended Complaint. Because this Decision and Order is intended primarily for the review of the parties, the
Court will assume the reader’s familiarity with Plaintiff’s Complaint, Magistrate Judge Peebles’
Report-Recommendation, Plaintiff’s Amended Complaint, and the procedural history of this
action.
Plaintiff has not filed an objection to the Report-Recommendation, and the deadline by
which to do so has expired. (See generally Docket Sheet.) Instead, ten days after the expiration
of that deadline, Plaintiff filed an Amended Complaint as of right under Fed. R. Civ. P. 15(a)(1).
(Dkt. No. 5.) An amended complaint ordinarily supersedes an original complaint in all respects
and renders it of no legal effect.1 However, a district court retains the duty to sua sponte
evaluate the pleading sufficiency of an amended complaint filed by a plaintiff who is proceeding
in forma pauperis (such as Plaintiff here).2 Moreover, an amended complaint does not moot a
pending report-recommendation that identifies pleading defects in an original complaint when
1 See Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977) (“It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.”), cert. denied, 434 U.S. 1014 (1978), accord, Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994); cf. N.D.N.Y. L.R. 7.1(a)(4) (“[T]he proposed amended pleading . . . will supersede the pleading sought to be amended in all respects.”). 2 See 28 U.S.C. § 1915(e)(2)(B) (providing that, where a plaintiff is proceeding in forma pauperis, “the court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted . . . .”) (emphasis added); see, e.g., Heendeniya v. St. Joseph’s Hosp. Health Ctr., 15-CV-1238, 2017 WL 1013081, at *8 n.13 (N.D.N.Y. March 14, 2017) (“Because Plaintiff is litigating this matter pro se and has been granted in forma pauperis status, the Court has a continuing duty to review his Second Amended Complaint . . . .”); Ivey v. New York, 14-CV-0326, 2014 WL 2558920, at *2 (N.D.N.Y. June 6, 2014) (“[T]he Court accepted Plaintiff's amended complaint as the operative pleading. The Court then undertook an independent review of Plaintiff's amended complaint, as is required where a plaintiff seeks to proceed in forma pauperis.”).
2 those defects remain in that amended complaint.3 Finally, where (as here) no timely objection
has been made to a report-recommendation, the Court subjects that report-recommendation to
only a clear-error review.4
With all of these points of law in mind, the Court has carefully reviewed Plaintiff’s
Amended Complaint in light of Magistrate Judge Peebles’ thorough Report-Recommendation.
The Court can find no clear-error in the Report-Recommendation: Magistrate Judge Peebles
employed the proper standards, accurately recited the facts, and reasonably applied the law to
those facts. As a result, the Court accepts and adopts that Report-Recommendation for the
reasons stated therein. (Dkt. No. 4.)
Turning to whether Plaintiff’s Amended Complaint has cured the pleading defects
identified in the Report-Recommendation, the Court begins by observing that, although the
Amended Complaint was prepared using a form made available by the Court for use by Section
3 See Smith v. Pines, 17-CV-0286, 2017 WL 2616956, at *1 (N.D.N.Y. June 16, 2017) (“As a result, the Court finds that much, if not the entirety, of the Report-Recommendation has not been mooted [by the amended complaint]; and the Court will therefore review the Report-Recommendation.”); Praileau v. Fischer, 930 F. Supp.2d 383, 388 (N.D.N.Y. 2013) (“[T]he filing of an amended complaint does not moot a pending report-recommendation that identifies pleading defects in the original complaint when those defects remain in that amended complaint.”); Gasaway v. Williams, 11-CV-0549, 2012 WL 264611 at *4 (N.D.N.Y. Jan. 30, 2012) (“[T]o the extent that Plaintiff's Amended Complaint does not correct the pleading deficiencies identified in the Report-Recommendation, the Report-Recommendation is still applicable.”). 4 See Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id.; see, e.g., Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted).
3 1983 litigants, the Amended Complaint has not alleged facts plausibly suggesting that any
defendant is a state actor. (Dkt. No. 5, at 3 [Plf.’s Am. Compl., alleging that “MAS is a private
company that has a contract with New York State Dept of Health to run their Medicaid
transportation system”].)5 However, the Court is mindful of the point of law that, in construing a
pro se plaintiff’s claims, “the court's imagination should be limited only by [the plaintiff’s]
factual allegations, not by the legal claims set out in his pleadings.” Phillips v. Girdich, 408 F.3d
124, 130 (2d Cir. 2005). As a result, the Court will continue to liberally construe Plaintiff’s
federal claims as arising under Title VII.
The Court also observes that the Amended Complaint attempts to add two defendants to
this action. More specifically, in addition to continuing to identify Medical Answering Service
(“MAS”) as a defendant in the caption, the Amended Complaint identifies two individuals as
defendants in the “Parties” Section of the form complaint: (1) Russ Maxwell, the CEO and
President of MAS; and (2) Carrie Sgroi, the HR Director of MAS. However, although Plaintiff
does not specify whether he is suing these two defendants in their individual capacities, he
5 See Grogan v. Blooming Grove Volunteer Ambulance Corps, 768 F.3d 259, 265- 68 (2d Cir. 2014) (finding that a private volunteer ambulance organization that contracted with town to provide emergency medical and general ambulance services was not a state actor under the public function theory, as required for organization to be subject to liability under 42 U.S.C. § 1983); Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 527 (2d Cir.1996) (“The fact that a municipality is responsible for providing medical attention to persons held in its custody may make an independent contractor rendering such services a state actor within the meaning of § 1983 with respect to the services so provided; but that fact does not make the contractor a state actor with respect to its employment decisions.”). MacDonald v. E. Wyoming Mental Health Ctr., 941 F.2d 1115, 1118 (10th Cir. 1991) (finding that a private corporation that contracted with a state agency to provide mental health services and received the majority of its funding from the state was not a state actor for purposes of a 42 U.S.C. § 1983 action arising from the discharge of an employee where no evidence showed that the state directed, controlled, or influenced the particular personnel decision notwithstanding the contention that the state regulated and monitored the corporation's personnel standards).
4 cannot assert Title VII claims against them in their individual capacities.6 Moreover, the
remaining Title VII claims against these two Defendants in their official capacities are redundant
of his Title VII claims against their employer, Defendant MAS; and thus Plaintiff’s Title VII
claims against these two Defendants may be dismissed.7 What remains against these two
Defendants is Plaintiff’s defamation claim under New York State common law. As a result, the
Clerk of the Court is directed to add these two individuals on the docket sheet as Defendants
(while retaining MAS as a third Defendant).
With regard to Plaintiff’s claim of employment discrimination based on race under Title
VII, the Amended Complaint appears to allege the existence of a similarly situated individual
(i.e., his co-worker David Prince) who was treated differently than was Plaintiff (i.e., not
terminated but merely warned), and that this disparate treatment occurred because of Plaintiff’s
race. (Dkt. No. 5, at 6 [Plf.’s Am. Compl., alleging that “Mr. Prince is white . . . while I am
black . . . .”].) As a result, the Court finds that Plaintiff’s Amended Complaint has sufficiently
stated a claim of employment discrimination based on race under Title VII to proceed for now.
6 See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam) (“[I]ndividuals are not subject to liability under Title VII.”); Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) (“We now hold that individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII.”), abrogated on other grounds by Burlington Indus. v. Ellerth, 524 U.S. 742 (1998). 7 See Jones v. OCRRA, 973 F. Supp.2d 159, 166 (N.D.N.Y. 2013) (“[B]ecause Plaintiff has named OCRRA as a defendant, the Court finds that Plaintiff's claims against the individual Defendants in their official capacities are redundant and, therefore, grants Defendants' motion for summary judgment with respect to Plaintiff's Title VII claims insofar as he asserts those claims against the individual Defendants in their official capacities.”), aff’d, 577 F. App’x 19 (2d Cir. 2014); Yu v. NYC Hous. Dev. Corp., 07-CV-5541, 2011 WL 2183181, at *1 n.1 (S.D.N.Y. June 3, 2011) (“Magistrate Judge Dolinger properly concluded that the [Title VII] claims against Defendant Mariconda in his official capacity should be dismissed as duplicative of his claims against HDC.”), aff'd, 494 F. App'x 122 (2d Cir. 2012).
5 The Court reaches a contrary conclusion with regard to the Amended Complaint’s
attempt to cure the pleading defect in Plaintiff’s claim of employment discrimination based on
gender under Title VII. The Amended Complaint hinges the viability of this amended claim on
the fact that Plaintiff’s alleged accuser was a woman while his co-worker David Prince’s alleged
accuser was a man. (Dkt. No. 5, at 6 [Plf.’s Am. Compl., alleging, “There are 2 obvious
differences in the case against Mr. Prince and myself and they are race and our accuser’s sex.
Mr. Prince[’s] . . . accuser was a man while . . . my accuser is a woman”].) In the Court’s view,
this difference between the genders of two alleged accusers does nothing to plausibly suggest an
act of gender discrimination where the genders of the accuseds are the same;8 if anything, such a
difference confers a right (to assert a claim of gender discrimination) upon Mr. Prince’s accuser
(who was male and whose complaint allegedly resulted in merely a warning). As a result, the
Court finds that Plaintiff’s Amended Complaint has failed to state a claim of employment
discrimination based on gender under Title VII.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 4) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that the Clerk of the Court is directed to add two individuals on the docket
sheet as Defendants (while retaining MAS as a third Defendant): (1) Russ Maxwell, CEO and
President of MAS; and (2) Carrie Sgroi, HR Director of MAS; and it is further
8 Cf. Baker v. Pactiv Corp., 04-CV-3548, 2005 WL 2293677, at *4 (N.D. Ill. Sept. 19, 2005) (entertaining such a claim only because the genders of the accuseds were different).
6 ORDERED that Plaintiff’s claim of employment discrimination based on gender under
Title VII against all Defendants is DISMISSED with prejudice from the Amended Complaint
(Dkt. No. 5); and it is futher
ORDERED that Plaintiff’s claim of employment discrimination based on race under
Title VII against Defendants Maxwell and Sgroi is DISMISSED with prejudice from the
Amended Complaint (Dkt. No. 5); and it is further
ORDERED that SURVIVING the undersigned’s sua sponte review of Plaintiff’s
Amended Complaint are (1) Plaintiff’s claim of employment discrimination based on race under
Title VII against Defendant MAS, and (2) his claim of defamation under New York State
common law against all three Defendants; and it is further
ORDERED that this action is referred back to Magistrate Judge Peebles for direction for
service and his management of the pretrial phase of this action.
Dated: January 3, 2019 Syracuse, New York
____________________________________ Hon. Glenn T. Suddaby Chief U.S. District Judge
7 | 2019-01-03 | [
"UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________ RONALD ROBINSON, Plaintiff, 1:18-CV-1222 v. (GTS/DEP) MEDICAL ANSWERING SERVICE, Defendant. _____________________________________________ APPEARANCES: RONALD ROBINSON Plaintiff, Pro Se 121 Lafayette Road Syracuse, New York 13205 GLENN T. SUDDABY, Chief United States District Judge DECISION and ORDER Currently before the Court, in this pro se employment discrimination action filed by Ronald Robinson (“Plaintiff”) against Medical Answering Service (“Defendant MAS”), is United States Magistrate Judge David E. Peebles’ Report-Recommendation recommending that Plaintiff’s Complaint be dismissed with leave to amend. (Dkt. No.",
"4.) For the reasons set forth below, Magistrate Judge Peebles’ Report-Recommendation is accepted and adopted in its entirety; Plaintiff’s claim of employment discrimination based on gender under Title VII is dismissed with prejudice; and his remaining two claims in his Amended Complaint (i.e., his claim of employment discrimination based on race under Title VII against Defendant MAS, and his claim of defamation under New York State common law against Defendant MAS and two individual Defendants) survive the undersigned’s sua sponte review of the Amended Complaint. Because this Decision and Order is intended primarily for the review of the parties, the Court will assume the reader’s familiarity with Plaintiff’s Complaint, Magistrate Judge Peebles’ Report-Recommendation, Plaintiff’s Amended Complaint, and the procedural history of this action. Plaintiff has not filed an objection to the Report-Recommendation, and the deadline by which to do so has expired. (See generally Docket Sheet.) Instead, ten days after the expiration of that deadline, Plaintiff filed an Amended Complaint as of right under Fed.",
"R. Civ. P. 15(a)(1). (Dkt. No. 5.) An amended complaint ordinarily supersedes an original complaint in all respects and renders it of no legal effect.1 However, a district court retains the duty to sua sponte evaluate the pleading sufficiency of an amended complaint filed by a plaintiff who is proceeding in forma pauperis (such as Plaintiff here).2 Moreover, an amended complaint does not moot a pending report-recommendation that identifies pleading defects in an original complaint when 1 See Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977) (“It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.”), cert. denied, 434 U.S. 1014 (1978), accord, Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994); cf. N.D.N.Y. L.R.",
"7.1(a)(4) (“[T]he proposed amended pleading . . . will supersede the pleading sought to be amended in all respects.”). 2 See 28 U.S.C. § 1915(e)(2)(B) (providing that, where a plaintiff is proceeding in forma pauperis, “the court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted . . . .”) (emphasis added); see, e.g., Heendeniya v. St. Joseph’s Hosp. Health Ctr., 15-CV-1238, 2017 WL 1013081, at *8 n.13 (N.D.N.Y. March 14, 2017) (“Because Plaintiff is litigating this matter pro se and has been granted in forma pauperis status, the Court has a continuing duty to review his Second Amended Complaint . . . .”); Ivey v. New York, 14-CV-0326, 2014 WL 2558920, at *2 (N.D.N.Y.",
"June 6, 2014) (“[T]he Court accepted Plaintiff's amended complaint as the operative pleading. The Court then undertook an independent review of Plaintiff's amended complaint, as is required where a plaintiff seeks to proceed in forma pauperis.”). 2 those defects remain in that amended complaint.3 Finally, where (as here) no timely objection has been made to a report-recommendation, the Court subjects that report-recommendation to only a clear-error review.4 With all of these points of law in mind, the Court has carefully reviewed Plaintiff’s Amended Complaint in light of Magistrate Judge Peebles’ thorough Report-Recommendation. The Court can find no clear-error in the Report-Recommendation: Magistrate Judge Peebles employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Court accepts and adopts that Report-Recommendation for the reasons stated therein. (Dkt. No. 4.) Turning to whether Plaintiff’s Amended Complaint has cured the pleading defects identified in the Report-Recommendation, the Court begins by observing that, although the Amended Complaint was prepared using a form made available by the Court for use by Section 3 See Smith v. Pines, 17-CV-0286, 2017 WL 2616956, at *1 (N.D.N.Y.",
"June 16, 2017) (“As a result, the Court finds that much, if not the entirety, of the Report-Recommendation has not been mooted [by the amended complaint]; and the Court will therefore review the Report-Recommendation.”); Praileau v. Fischer, 930 F. Supp.2d 383, 388 (N.D.N.Y. 2013) (“[T]he filing of an amended complaint does not moot a pending report-recommendation that identifies pleading defects in the original complaint when those defects remain in that amended complaint.”); Gasaway v. Williams, 11-CV-0549, 2012 WL 264611 at *4 (N.D.N.Y. Jan. 30, 2012) (“[T]o the extent that Plaintiff's Amended Complaint does not correct the pleading deficiencies identified in the Report-Recommendation, the Report-Recommendation is still applicable.”). 4 See Fed. R. Civ.",
"P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id. ; see, e.g., Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted).",
"3 1983 litigants, the Amended Complaint has not alleged facts plausibly suggesting that any defendant is a state actor. (Dkt. No. 5, at 3 [Plf.’s Am. Compl., alleging that “MAS is a private company that has a contract with New York State Dept of Health to run their Medicaid transportation system”]. )5 However, the Court is mindful of the point of law that, in construing a pro se plaintiff’s claims, “the court's imagination should be limited only by [the plaintiff’s] factual allegations, not by the legal claims set out in his pleadings.” Phillips v. Girdich, 408 F.3d 124, 130 (2d Cir. 2005). As a result, the Court will continue to liberally construe Plaintiff’s federal claims as arising under Title VII. The Court also observes that the Amended Complaint attempts to add two defendants to this action.",
"More specifically, in addition to continuing to identify Medical Answering Service (“MAS”) as a defendant in the caption, the Amended Complaint identifies two individuals as defendants in the “Parties” Section of the form complaint: (1) Russ Maxwell, the CEO and President of MAS; and (2) Carrie Sgroi, the HR Director of MAS. However, although Plaintiff does not specify whether he is suing these two defendants in their individual capacities, he 5 See Grogan v. Blooming Grove Volunteer Ambulance Corps, 768 F.3d 259, 265- 68 (2d Cir. 2014) (finding that a private volunteer ambulance organization that contracted with town to provide emergency medical and general ambulance services was not a state actor under the public function theory, as required for organization to be subject to liability under 42 U.S.C.",
"§ 1983); Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 527 (2d Cir.1996) (“The fact that a municipality is responsible for providing medical attention to persons held in its custody may make an independent contractor rendering such services a state actor within the meaning of § 1983 with respect to the services so provided; but that fact does not make the contractor a state actor with respect to its employment decisions.”). MacDonald v. E. Wyoming Mental Health Ctr., 941 F.2d 1115, 1118 (10th Cir. 1991) (finding that a private corporation that contracted with a state agency to provide mental health services and received the majority of its funding from the state was not a state actor for purposes of a 42 U.S.C.",
"§ 1983 action arising from the discharge of an employee where no evidence showed that the state directed, controlled, or influenced the particular personnel decision notwithstanding the contention that the state regulated and monitored the corporation's personnel standards). 4 cannot assert Title VII claims against them in their individual capacities.6 Moreover, the remaining Title VII claims against these two Defendants in their official capacities are redundant of his Title VII claims against their employer, Defendant MAS; and thus Plaintiff’s Title VII claims against these two Defendants may be dismissed.7 What remains against these two Defendants is Plaintiff’s defamation claim under New York State common law. As a result, the Clerk of the Court is directed to add these two individuals on the docket sheet as Defendants (while retaining MAS as a third Defendant).",
"With regard to Plaintiff’s claim of employment discrimination based on race under Title VII, the Amended Complaint appears to allege the existence of a similarly situated individual (i.e., his co-worker David Prince) who was treated differently than was Plaintiff (i.e., not terminated but merely warned), and that this disparate treatment occurred because of Plaintiff’s race. (Dkt. No. 5, at 6 [Plf.’s Am. Compl., alleging that “Mr. Prince is white . . . while I am black . . . .”].) As a result, the Court finds that Plaintiff’s Amended Complaint has sufficiently stated a claim of employment discrimination based on race under Title VII to proceed for now. 6 See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir.",
"2000) (per curiam) (“[I]ndividuals are not subject to liability under Title VII.”); Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) (“We now hold that individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII.”), abrogated on other grounds by Burlington Indus. v. Ellerth, 524 U.S. 742 (1998). 7 See Jones v. OCRRA, 973 F. Supp.2d 159, 166 (N.D.N.Y. 2013) (“[B]ecause Plaintiff has named OCRRA as a defendant, the Court finds that Plaintiff's claims against the individual Defendants in their official capacities are redundant and, therefore, grants Defendants' motion for summary judgment with respect to Plaintiff's Title VII claims insofar as he asserts those claims against the individual Defendants in their official capacities.”), aff’d, 577 F. App’x 19 (2d Cir. 2014); Yu v. NYC Hous. Dev. Corp., 07-CV-5541, 2011 WL 2183181, at *1 n.1 (S.D.N.Y. June 3, 2011) (“Magistrate Judge Dolinger properly concluded that the [Title VII] claims against Defendant Mariconda in his official capacity should be dismissed as duplicative of his claims against HDC.”), aff'd, 494 F. App'x 122 (2d Cir. 2012). 5 The Court reaches a contrary conclusion with regard to the Amended Complaint’s attempt to cure the pleading defect in Plaintiff’s claim of employment discrimination based on gender under Title VII.",
"The Amended Complaint hinges the viability of this amended claim on the fact that Plaintiff’s alleged accuser was a woman while his co-worker David Prince’s alleged accuser was a man. (Dkt. No. 5, at 6 [Plf.’s Am. Compl., alleging, “There are 2 obvious differences in the case against Mr. Prince and myself and they are race and our accuser’s sex. Mr. Prince[’s] . . . accuser was a man while . . . my accuser is a woman”].) In the Court’s view, this difference between the genders of two alleged accusers does nothing to plausibly suggest an act of gender discrimination where the genders of the accuseds are the same;8 if anything, such a difference confers a right (to assert a claim of gender discrimination) upon Mr. Prince’s accuser (who was male and whose complaint allegedly resulted in merely a warning).",
"As a result, the Court finds that Plaintiff’s Amended Complaint has failed to state a claim of employment discrimination based on gender under Title VII. ACCORDINGLY, it is ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 4) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that the Clerk of the Court is directed to add two individuals on the docket sheet as Defendants (while retaining MAS as a third Defendant): (1) Russ Maxwell, CEO and President of MAS; and (2) Carrie Sgroi, HR Director of MAS; and it is further 8 Cf. Baker v. Pactiv Corp., 04-CV-3548, 2005 WL 2293677, at *4 (N.D. Ill. Sept. 19, 2005) (entertaining such a claim only because the genders of the accuseds were different). 6 ORDERED that Plaintiff’s claim of employment discrimination based on gender under Title VII against all Defendants is DISMISSED with prejudice from the Amended Complaint (Dkt.",
"No. 5); and it is futher ORDERED that Plaintiff’s claim of employment discrimination based on race under Title VII against Defendants Maxwell and Sgroi is DISMISSED with prejudice from the Amended Complaint (Dkt. No. 5); and it is further ORDERED that SURVIVING the undersigned’s sua sponte review of Plaintiff’s Amended Complaint are (1) Plaintiff’s claim of employment discrimination based on race under Title VII against Defendant MAS, and (2) his claim of defamation under New York State common law against all three Defendants; and it is further ORDERED that this action is referred back to Magistrate Judge Peebles for direction for service and his management of the pretrial phase of this action. Dated: January 3, 2019 Syracuse, New York ____________________________________ Hon. Glenn T. Suddaby Chief U.S. District Judge 7"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/54631620/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Collins, J. The only question which we need to discuss on this occasion is that of defendant’s liability upon the contract on which plaintiff’s right to recover is based. The defendant is a building association organized under the provisions of 1878 G. S. ch. 34, tit. 2, and the various amendatory acts. By a proviso found at the end of section one hundred and nine (109) of said chapter, such associations are expressly prohibited from loaning their funds, except to their own members or shareholders; and by means of Laws 1889, ch. 236, § 4, the manner of making such loans to members and stockholders is pointed out and regulated with great care. Upon the trial it was stipulated that Woolsey, named in the writing as‘the applicant for a loan, was not such member or shareholder; and it follows that a loan to him by defendant would have been in direct violation of a clear and express provision of the statute governing defendant association, under which it existed, and of which plaintiff and all other persons dealing with it were bound to take notice. With this notice and knowledge, then, of defendant’s restricted and limited powers as fixed by law, plaintiff entered into an executory contract with defendant which, if valid and enforceable, enabled the latter to evade a statute by loaning its funds to a person ineligible as a borrower, because not a member or shareholder, and to accomplish indirectly that which was expressly forbidden. Such a transaction cannot be permitted, and it is immaterial whether we regard it as a loan made by plaintiff at defendant’s request, with a promise to take it off plaintiff’s hands, or as an agreement to purchase a note and mortgage which plaintiff was about to acquire. In either event, the contract, if fulfilled, led directly to a violation of the statute before referred to. Nor can the transaction, in legal effect, be regarded as a loan of money to defendant. It received no money and no benefit. It had *520no claims upon Woolsey, or upon his note and mortgage, and none upon the plaintiff, save such as would come from an improper and unlawful use of its funds at a future time. It is not analogous to a case where a corporation, in excess of its powers, has procured a loan of money; nor is it such a case as might have arisen between defendant and Woolsey, not a member and shareholder, had the former performed its part of the agreement, and became the holder of a note and mortgage it was forbidden to take. (Opinion published 52 N. W. Rep. 138.) The respondent’s counsel cites State Board of Agriculture v. Citizens' St. Ry. Co., 47 Ind. 407, and other cases in support of the decision reached below. We are not inclined to question the soundness of the position that, where a corporation has merely exceeded its powers when entering into a contract, and by its promise induced a party relying on the promise, and in execution of the same, to expend money and perform on his part, the corporation is liable. But here the appellant was positively prohibited from making the loan to Woolsey, or accepting the note and mortgage it agreed to take from plaintiff; and its contract was in violation of a statute. The rule in such cases is unquestioned. There is nothing whatever in respondent’s suggestion that Wool-sey might have become a member and shareholder before or at the time of performance on defendant’s part. Judgment reversed. | 09-09-2022 | [
"Collins, J. The only question which we need to discuss on this occasion is that of defendant’s liability upon the contract on which plaintiff’s right to recover is based. The defendant is a building association organized under the provisions of 1878 G. S. ch. 34, tit. 2, and the various amendatory acts. By a proviso found at the end of section one hundred and nine (109) of said chapter, such associations are expressly prohibited from loaning their funds, except to their own members or shareholders; and by means of Laws 1889, ch. 236, § 4, the manner of making such loans to members and stockholders is pointed out and regulated with great care. Upon the trial it was stipulated that Woolsey, named in the writing as‘the applicant for a loan, was not such member or shareholder; and it follows that a loan to him by defendant would have been in direct violation of a clear and express provision of the statute governing defendant association, under which it existed, and of which plaintiff and all other persons dealing with it were bound to take notice.",
"With this notice and knowledge, then, of defendant’s restricted and limited powers as fixed by law, plaintiff entered into an executory contract with defendant which, if valid and enforceable, enabled the latter to evade a statute by loaning its funds to a person ineligible as a borrower, because not a member or shareholder, and to accomplish indirectly that which was expressly forbidden. Such a transaction cannot be permitted, and it is immaterial whether we regard it as a loan made by plaintiff at defendant’s request, with a promise to take it off plaintiff’s hands, or as an agreement to purchase a note and mortgage which plaintiff was about to acquire. In either event, the contract, if fulfilled, led directly to a violation of the statute before referred to. Nor can the transaction, in legal effect, be regarded as a loan of money to defendant.",
"It received no money and no benefit. It had *520no claims upon Woolsey, or upon his note and mortgage, and none upon the plaintiff, save such as would come from an improper and unlawful use of its funds at a future time. It is not analogous to a case where a corporation, in excess of its powers, has procured a loan of money; nor is it such a case as might have arisen between defendant and Woolsey, not a member and shareholder, had the former performed its part of the agreement, and became the holder of a note and mortgage it was forbidden to take. (Opinion published 52 N. W. Rep. 138.)",
"The respondent’s counsel cites State Board of Agriculture v. Citizens' St. Ry. Co., 47 Ind. 407, and other cases in support of the decision reached below. We are not inclined to question the soundness of the position that, where a corporation has merely exceeded its powers when entering into a contract, and by its promise induced a party relying on the promise, and in execution of the same, to expend money and perform on his part, the corporation is liable. But here the appellant was positively prohibited from making the loan to Woolsey, or accepting the note and mortgage it agreed to take from plaintiff; and its contract was in violation of a statute. The rule in such cases is unquestioned. There is nothing whatever in respondent’s suggestion that Wool-sey might have become a member and shareholder before or at the time of performance on defendant’s part.",
"Judgment reversed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7967431/ | 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 . 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 Jeanine Gasper on 24 January 2022.
The application has been amended as follows:
33. (Currently Amended) An airfoil for a turbine engine, the airfoil comprising: an outer wall having an outer surface and bounding an interior, the outer wall defining a pressure side and a suction side, extending between a leading edge and a trailing edge to define a chord-wise direction, extending between a root and a tip to define a span-wise direction, and defining a stagnation line extending in the span-wise direction separating the pressure side from the suction side proximate the leading edge; at least one cooling supply conduit provided in the interior and defining an interior surface; and at least one cooling passage fluidly coupling the at least one cooling supply conduit to the outer surface of the outer wall, the at least one cooling passage comprising:
an inlet fluidly coupled to the at least one cooling supply conduit at the interior surface and having a second width and a second height greater than the first height and defining a second cross-sectional area, and a curved passage defining a curvilinear centerline extending between a geometric center of both the outlet and the inlet and comprising multiple turns; wherein the curvilinear centerline forms a first angle with the interior surface that is between 0 and 90 degrees.
This amendment expedites allowance of the claims by moving allowable subject matter into independent claim 33.
Allowable Subject Matter Claims 1-26 and 33-38 are allowed.
Reasons for Allowance The following is an examiner’s statement of reasons for allowance: The new amendments overcome the previously presented prior art. The new limitations require the height of the inlet hole to be greater than the height of the outlet hole, which as can be seen from Lee or Liang is not shown. The hole of Lee actually expands in size from inlet to outlet. While there is art out there like Liang (US 8591191) that shows a nozzle type hole with the inlet being larger than the . 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 THEODORE C RIBADENEYRA whose telephone number is (469)295-9164. The examiner can normally be reached Mon-Fri 9:00-5:00 (CT). Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Sosnowski can be reached on (571) 270-7944. 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
/THEODORE C RIBADENEYRA/ Examiner, Art Unit 3745
/J. Todd Newton, Esq./ Primary Examiner, Art Unit 3745 1/28/2022 | 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 . 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 Jeanine Gasper on 24 January 2022. The application has been amended as follows: 33. (Currently Amended) An airfoil for a turbine engine, the airfoil comprising: an outer wall having an outer surface and bounding an interior, the outer wall defining a pressure side and a suction side, extending between a leading edge and a trailing edge to define a chord-wise direction, extending between a root and a tip to define a span-wise direction, and defining a stagnation line extending in the span-wise direction separating the pressure side from the suction side proximate the leading edge; at least one cooling supply conduit provided in the interior and defining an interior surface; and at least one cooling passage fluidly coupling the at least one cooling supply conduit to the outer surface of the outer wall, the at least one cooling passage comprising: an inlet fluidly coupled to the at least one cooling supply conduit at the interior surface and having a second width and a second height greater than the first height and defining a second cross-sectional area, and a curved passage defining a curvilinear centerline extending between a geometric center of both the outlet and the inlet and comprising multiple turns; wherein the curvilinear centerline forms a first angle with the interior surface that is between 0 and 90 degrees.",
"This amendment expedites allowance of the claims by moving allowable subject matter into independent claim 33. Allowable Subject Matter Claims 1-26 and 33-38 are allowed. Reasons for Allowance The following is an examiner’s statement of reasons for allowance: The new amendments overcome the previously presented prior art. The new limitations require the height of the inlet hole to be greater than the height of the outlet hole, which as can be seen from Lee or Liang is not shown. The hole of Lee actually expands in size from inlet to outlet. While there is art out there like Liang (US 8591191) that shows a nozzle type hole with the inlet being larger than the .",
"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 THEODORE C RIBADENEYRA whose telephone number is (469)295-9164. The examiner can normally be reached Mon-Fri 9:00-5:00 (CT). Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Sosnowski can be reached on (571) 270-7944.",
"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 /THEODORE C RIBADENEYRA/ Examiner, Art Unit 3745 /J. Todd Newton, Esq./ Primary Examiner, Art Unit 3745 1/28/2022"
]
| 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 |
Atkinson, Justice. The principle set forth in Industrial Realty Co. v. International Reinsurance Corporation, 183 Ga., 605, controls the instant case.
Judgment affirmed.
All the Justices concur, accept Russell, C. J., and Hutcheson, J., who dissent. | 01-11-2022 | [
"Atkinson, Justice. The principle set forth in Industrial Realty Co. v. International Reinsurance Corporation, 183 Ga., 605, controls the instant case. Judgment affirmed. All the Justices concur, accept Russell, C. J., and Hutcheson, J., who dissent."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5591222/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Detailed Action Request for Continued Examination 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 allowance or after an Office action under Ex Parte Quayle, 25 USPQ 74, 453 O.G. 213 (Comm'r Pat. 1935). 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, prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant's submission filed on 10/08/2021 has been entered.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA An after allowance request for continued examination was file This office action is a response to an application filed on 10/08/2021 in which Claims 1 – 19 and 24 – 29 are pending with Claims 1 and 24 amended.
The IDS of 10/08/2021 was reviewed. However, in a subsequent search, Wang United States Patent Application 20170257840, was found to teach at least the same inventive concept as disclosed below. In view of this, prosecution is re-opened.
Information Disclosure Statement The Examiner has considered the reference(s) listed on the Information Disclosure Statement submitted on 10/08/2021.
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.
Claims 1-2, 4-8, 13-17 and 24 - 29 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Wang United States Patent Application 20170257840, In regards to Claims 1, 24, and 25, Wang teaches of a method for synchronizing a remote radio unit (RRU) in a distributed radio access network (RAN), the method comprising of receiving a synchronization-assisting radio-frequency signal; ¶ [0043] A GPS satellite signal is received by using a GPS receiving module assembled on the RRU
Wang teaches of sending information derived from the synchronization-assisting radio-frequency signal over a fronthaul link to a baseband unit (BBU); ¶ [0043] GPS clock signals received by a plurality of RRUs are transmitted to a BBU via an optical fiber ({i.e. fronthaul link}
Wang teaches of controlling a local clock in the RRU using the fronthaul link; ¶ [0043] The BBU performs centralized analysis and computation on multi-path input GPS clocks, and signals with large interferences are eliminated or optimized by means of an algorithm, and clock signals used by the present base station are generated, and are provided for the BBU and the RRU to use. In regards to Claim 2, Wang teaches further of communicating with the at least one wireless terminal using radio-frequency signals; ¶ [0043] To solve the problems in the related art that a GPS signal acquisition mode is poor in lightning protection capacity and easy for a GPS signal to be interfered, and an RRU cannot be positioned and an antenna installation position cannot be too far, embodiments of the present disclosure provide a method for acquiring a GPS signal by using an RRU {i.e. one wireless terminal using radio-frequency signals} of a distributed base station, and the distributed base station.
In regards to Claim 4, Wang teaches where the fronthaul link is a synchronous fronthaul link and the local clock in the RRU is locked to the fronthaul link. ¶ [0052] After the above-mentioned processing, the RRU receives the optimal clock fed back by the BBU, performs difference statistics on the reported clock signal and the optimal clock, and reports analysis data to the BBU. ...
In regards to Claim 5, 26, Wang teaches where the fronthaul link uses a common public radio interface (CPRI) protocol and CPRI synchronization is used to control the local clock in the RRU; ¶ [0051] Herein, a clock capable of meeting the requirement for system clock synchronization precision may be called as the optimal clock. When a system has a plurality of clock signal sources meeting the requirement for precision, any one may be selected as a clock source. A ‘reference clock’ of the system may also be formed by means of a certain algorithm such as a weighing mode, a mid-value calculating mode and the like, the clock signal is allocated to various network elements in the system via a transmission system or used for clock calibration of various network elements
In regards to Claim 6, 29, Wang teaches of receiving synchronization instructions from the BBU using the fronthaul link, the synchronization instructions determined based on the information derived from the synchronization-assisting radio-frequency signal; and using the synchronization instructions to control the local clock in the RRU; ¶ [0043] The BBU performs centralized analysis and computation on multi-path input GPS clocks, and signals with large interferences are eliminated or optimized by means of an algorithm, and clock signals used by the present base station are generated, and are provided for the BBU and the RRU to use. Difference statistics may be performed on clock data reported by the RRU and clock data fed back to the RRU by the BBU, and analysis data may be reported
In regards to Claims 7, 27, Wang teaches where the synchronization instructions comprise an instruction to change a frequency or a phase of the local clock; ¶ [0050] Those skilled in the art may understand that an optimal clock may be generated by means of a digital clock synchronization circuit comparison manner, an atomic clock comparison manner, a multi-path clock comparison manner, a local crystal oscillator comparison manner and the like, an offset clock and the optimal clock are synchronously calibrated by using a digital circuit such as a phase-locked ring and so on..
In regards to Claim 8, Wang teaches where the fronthaul link is a non-deterministic fronthaul link, and adjusting the local clock in the RRU based on the synchronization instructions to control the local clock in the RRU. . ¶ [0043] A GPS satellite signal is received by using a GPS receiving module assembled on the RRU. GPS clock signals received by a plurality of RRUs are transmitted to a BBU via an optical fiber. The BBU performs centralized analysis and computation on multi-path input GPS clocks {i.e. a non-deterministic fronthaul link}, and signals with large interferences are eliminated or optimized by means of an algorithm, and clock signals used by the present base station are generated, and are provided for the BBU and the RRU to use. Difference statistics may be performed on clock data reported by the RRU and clock data fed back to the RRU by the BBU, and analysis data may be reported. . In regards to Claim 13, Wang teaches where the synchronization-assisting radio-frequency signal comprises a GPS satellite signal, a downlink signal from a cellular base station, a television broadcast signal, an uplink signal from a cellular terminal, or a time broadcast signal; ¶[0043] To solve the problems in the related art that a GPS signal acquisition mode is poor in lightning protection capacity and easy for a GPS signal to be interfered, and an RRU cannot be positioned and an antenna installation position cannot be too far, embodiments of the present disclosure provide a method for acquiring a GPS signal by using an RRU of a distributed base station, and the distributed base station. A GPS satellite signal is received by using a GPS receiving module assembled on the RRU..
In regards to Claim 14, Wang teaches where the RRU is a first RRU and the synchronization-assisting radio-frequency signal comprises a signal from a second RRU. ¶[0043] GPS clock signals received by a plurality of RRUs are transmitted to a BBU via an optical fiber.
In regards to Claim 15, Wang teaches where the signal from the second RRU comprises a downlink signal or a dedicated beacon signal. ¶[0043] GPS clock signals received by a plurality of RRUs are transmitted to a BBU via an optical fiber.
In regards to Claims 16, 28, Wang teaches of receiving control instructions from the BBU over the fronthaul link; . ¶[0043] Difference statistics may be performed on clock data reported by the RRU and clock data fed back to the RRU by the BBU, and analysis data may be reported controlling at least one aspect of the receiving of the synchronization-assisting radio- frequency signal or the derivation of the information from the synchronization-assisting radio- frequency signal based on the control instructions; . ¶[0043] GPS clock signals received by a plurality of RRUs are transmitted to a BBU via an optical fiber. The BBU performs centralized analysis and computation on multi-path input GPS clocks, and signals with large interferences are eliminated or optimized by means of an algorithm, and clock signals used by the present base station are generated, and are provided for the BBU and the RRU to use.
In regards to Claim 17, Wang teaches of an instruction to set a receive frequency for a radio-frequency receiver in the RRU based on the control instructions to receive the synchronization-assisting radio-frequency signal through the radio frequency receiver. ¶ [0061] In an exemplary example, it is judged whether the performances of various GPS receivers are good or bad by acquiring the sensitivity information of different brands, specifications and batches of GPS receivers and analyzing an offset to a whole-network synchronization clock.
Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 3, 9, 10, 11, 12, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Wang United States Patent Application 20170257840 in view of Barbieri United States Patent 10608734
In regards to Claim 3, Wang does not disclose, but Barbieri teaches where the RAN protocol comprises an Evolved Universal Terrestrial Radio Access Network (E-UTRAN); and the first-level protocol comprises an Evolved Universal Terrestrial Radio Access (E-UTRA) physical-layer (PHY) protocol; Column 09 Row 25 While an E-UTRAN system is used as an example in this document, the principles, systems, apparatus, and methods disclosed herein can be applied by one of ordinary skill to different radio access networks, including legacy networks such as Universal Mobile Telecommunications System (UMTS), other contemporary networks such as Worldwide Interoperability for Microwave Access (WiMAX), and future networks.
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Wang.
One would have been motivated to modify Yuan in this manner so that distributed RRU RaaS can be performed with legacy technologies.
In regards to Claim 9, Wang teaches discloses the invention substantially as recited above. However Wang does not disclose where the non-deterministic fronthaul link utilizes an internet protocol Barbieri in the same field of endeavor teaches in (Column 09 Row 34 The RAN 200 also includes a fronthaul link 245 coupled to the BBUs 260A-C and the group of RRUs 230A-C and utilizing an adaptive fronthaul protocol for communication between the BBUs 260A-C and the group of RRUs 230A-C. In some embodiments, the fronthaul link 245 includes a non-deterministic communication link, where at a latency, an arbitration, a bandwidth, a jitter, a packet order, a packet delivery, or some other characteristic of the communication link, cannot be determined with certainty in advance.
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Wang.
One would have been motivated to modify Wang in this manner so that communication with non-deterministic fronthaul link can be done.
In regards to Claim 10, Wang teaches discloses the invention substantially as recited above. However Wang does not disclose of tuning a first radio-frequency receiver in the RRU to an uplink frequency; receiving uplink data through the first radio-frequency receiver; tuning a second radio-frequency receiver in the RRU to a carrier frequency of the synchronization-assisting radio-frequency signal; and receiving the synchronization-assisting radio-frequency signal through the second radio-frequency receiver; Barbieri in the same field of endeavor teaches in (Column 19 Row 55 (70) RRUs may be dynamically configured by their controlling BBU instance, with the possible assistance of the BBU stack or a separate orchestration module, by sending special configuration commands to the RRUs over fronthaul link using the RaaS-FIP protocol. The configuration commands may include, but are not limited to, a synchronization command, a power control command, a network listening command, a poweroff command, a frequency retuning command, or other RaaS-RIP commands. In one non-limiting example that may be referred to as “cell breathing,” the controlling BBU may send a poweroff command to a RRU when a certain condition is detected.
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Wang.
One would have been motivated to modify Wang in this manner so that RRUs can be dynamically configured by their controlling BBU.
In regards to Claim 11, 18, Wang teaches discloses the invention substantially as recited above. However Wang does not disclose of tuning a radio-frequency receiver to an uplink frequency for a first period of time; receiving uplink data through the first radio-frequency receiver during the first period of Barbieri in the same field of endeavor teaches in (Column 22 Row 5) . 80) In embodiments, the electronic circuitry 410 of the RRU 430 includes receiver circuitry, shown as transceiver circuitry 412, to receive a radio frequency signal from the antenna 411 and convert the received radio frequency signal to digital baseband samples. The transceiver circuitry 412 may include sub-circuits, such as conversion circuitry and/or RF circuitry. The electronic circuitry 410 also includes adaptive compression circuitry 426 to adaptively compress the digital baseband samples into fronthaul uplink information based on information received from the BBU 460 over the fronthaul link 445, and interface circuitry 436 to send the fronthaul uplink information to the BBU 460 over the fronthaul link 445 using the adaptive fronthaul protocol. In some systems the adaptive compression performed by the adaptive compression circuitry 426 is lossy. The BBU 460 may include an uplink adaptive decompression block 446 as a part of the networking module to decompress the uplink data received from the RRU 430.
Wang does not disclose of tuning the radio-frequency receiver to a carrier frequency of the synchronization- assisting radio-frequency signal during a second period of time that is non-overlapping with the first period of time; receiving the synchronization-assisting radio-frequency signal through the radio- frequency receiver during the second period of time. Column 19 Row 55 (70) RRUs may be dynamically configured by their controlling BBU instance, with the possible assistance of the BBU stack or a separate orchestration module, by sending special configuration commands to the RRUs over fronthaul link using the RaaS-FIP protocol.
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Wang.
One would have been motivated to modify Wang in this manner so that RRUs can be dynamically configured by their controlling BBU.
In regards to Claim 12, Wang teaches discloses the invention substantially as recited above. However Wang does not disclose of using a single wideband radio-frequency receiver to simultaneously receive both uplink data in a first frequency sub-band and the synchronization-assisting radio-frequency signal in a second frequency sub-band; sending the uplink data to the BBU over the fronthaul link; Barbieri in the (Column 07 Row 12)(21) A BBU may run in the cloud, along with an orchestration layer, using an adaptive fronthaul protocol over a standard IP-based network to communicate with one or more RRUs. The adaptive fronthaul protocol may be referred to as RaaS Fronthaul over IP (RaaS-FIP). RaaS-FIP may be used for the exchange of datagrams between a BBU and a RRU. Many different RAN architectures can be supported by a RaaS architecture including, but not limited to, LTE and LTE-A. The BBU implements at least some portion of the networking stack of the RAN, including layer It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Wang.
One would have been motivated to modify Wang in this manner so that RRUs can be dynamically configured by their controlling BBU.
In regards to Claim 19, Wang teaches discloses the invention substantially as recited above. However Wang does not disclose compressing a block of digital samples captured from the received synchronization- assisting radio-frequency signal to create the information derived from the synchronization-assisting radio-frequency signal; Barbieri in the same field of endeavor teaches in (Column 22 Row 5) . …. The electronic circuitry 410 also includes adaptive compression circuitry 426 to adaptively compress the digital baseband samples into fronthaul uplink information based on information received from the BBU 460 over the fronthaul link 445, and interface circuitry 436 to send the fronthaul uplink information to the BBU 460 over the fronthaul link 445 using the adaptive fronthaul protocol. In some systems the adaptive compression performed by the adaptive compression circuitry 426 is lossy. The BBU 460 may include an uplink adaptive decompression block 446 as a part of the networking module to decompress the uplink data received from the RRU 430.
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Wang.
One would have been motivated to modify Wang in this manner so that information derived from the synchronization-assisting radio-frequency signal RRUs can be conveniently transmitted.
Conclusion;
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HENRY BARON whose telephone number is (571)270-1748. The examiner can normally be reached on 8-5. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Yemane Mesfin can be reached on 571 272 3927. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see 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.
/HENRY BARON/Examiner, Art Unit 2462
/KEVIN C. HARPER/Primary Examiner, Art Unit 2462 | 2021-12-10T07:33:28 | [
"Detailed Action Request for Continued Examination 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 allowance or after an Office action under Ex Parte Quayle, 25 USPQ 74, 453 O.G. 213 (Comm'r Pat. 1935). 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, prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant's submission filed on 10/08/2021 has been entered. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA An after allowance request for continued examination was file This office action is a response to an application filed on 10/08/2021 in which Claims 1 – 19 and 24 – 29 are pending with Claims 1 and 24 amended.",
"The IDS of 10/08/2021 was reviewed. However, in a subsequent search, Wang United States Patent Application 20170257840, was found to teach at least the same inventive concept as disclosed below. In view of this, prosecution is re-opened. Information Disclosure Statement The Examiner has considered the reference(s) listed on the Information Disclosure Statement submitted on 10/08/2021. 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. Claims 1-2, 4-8, 13-17 and 24 - 29 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Wang United States Patent Application 20170257840, In regards to Claims 1, 24, and 25, Wang teaches of a method for synchronizing a remote radio unit (RRU) in a distributed radio access network (RAN), the method comprising of receiving a synchronization-assisting radio-frequency signal; ¶ [0043] A GPS satellite signal is received by using a GPS receiving module assembled on the RRU Wang teaches of sending information derived from the synchronization-assisting radio-frequency signal over a fronthaul link to a baseband unit (BBU); ¶ [0043] GPS clock signals received by a plurality of RRUs are transmitted to a BBU via an optical fiber ({i.e.",
"fronthaul link} Wang teaches of controlling a local clock in the RRU using the fronthaul link; ¶ [0043] The BBU performs centralized analysis and computation on multi-path input GPS clocks, and signals with large interferences are eliminated or optimized by means of an algorithm, and clock signals used by the present base station are generated, and are provided for the BBU and the RRU to use. In regards to Claim 2, Wang teaches further of communicating with the at least one wireless terminal using radio-frequency signals; ¶ [0043] To solve the problems in the related art that a GPS signal acquisition mode is poor in lightning protection capacity and easy for a GPS signal to be interfered, and an RRU cannot be positioned and an antenna installation position cannot be too far, embodiments of the present disclosure provide a method for acquiring a GPS signal by using an RRU {i.e.",
"one wireless terminal using radio-frequency signals} of a distributed base station, and the distributed base station. In regards to Claim 4, Wang teaches where the fronthaul link is a synchronous fronthaul link and the local clock in the RRU is locked to the fronthaul link. ¶ [0052] After the above-mentioned processing, the RRU receives the optimal clock fed back by the BBU, performs difference statistics on the reported clock signal and the optimal clock, and reports analysis data to the BBU. ... In regards to Claim 5, 26, Wang teaches where the fronthaul link uses a common public radio interface (CPRI) protocol and CPRI synchronization is used to control the local clock in the RRU; ¶ [0051] Herein, a clock capable of meeting the requirement for system clock synchronization precision may be called as the optimal clock. When a system has a plurality of clock signal sources meeting the requirement for precision, any one may be selected as a clock source. A ‘reference clock’ of the system may also be formed by means of a certain algorithm such as a weighing mode, a mid-value calculating mode and the like, the clock signal is allocated to various network elements in the system via a transmission system or used for clock calibration of various network elements In regards to Claim 6, 29, Wang teaches of receiving synchronization instructions from the BBU using the fronthaul link, the synchronization instructions determined based on the information derived from the synchronization-assisting radio-frequency signal; and using the synchronization instructions to control the local clock in the RRU; ¶ [0043] The BBU performs centralized analysis and computation on multi-path input GPS clocks, and signals with large interferences are eliminated or optimized by means of an algorithm, and clock signals used by the present base station are generated, and are provided for the BBU and the RRU to use.",
"Difference statistics may be performed on clock data reported by the RRU and clock data fed back to the RRU by the BBU, and analysis data may be reported In regards to Claims 7, 27, Wang teaches where the synchronization instructions comprise an instruction to change a frequency or a phase of the local clock; ¶ [0050] Those skilled in the art may understand that an optimal clock may be generated by means of a digital clock synchronization circuit comparison manner, an atomic clock comparison manner, a multi-path clock comparison manner, a local crystal oscillator comparison manner and the like, an offset clock and the optimal clock are synchronously calibrated by using a digital circuit such as a phase-locked ring and so on.. In regards to Claim 8, Wang teaches where the fronthaul link is a non-deterministic fronthaul link, and adjusting the local clock in the RRU based on the synchronization instructions to control the local clock in the RRU.",
". ¶ [0043] A GPS satellite signal is received by using a GPS receiving module assembled on the RRU. GPS clock signals received by a plurality of RRUs are transmitted to a BBU via an optical fiber. The BBU performs centralized analysis and computation on multi-path input GPS clocks {i.e. a non-deterministic fronthaul link}, and signals with large interferences are eliminated or optimized by means of an algorithm, and clock signals used by the present base station are generated, and are provided for the BBU and the RRU to use. Difference statistics may be performed on clock data reported by the RRU and clock data fed back to the RRU by the BBU, and analysis data may be reported. . In regards to Claim 13, Wang teaches where the synchronization-assisting radio-frequency signal comprises a GPS satellite signal, a downlink signal from a cellular base station, a television broadcast signal, an uplink signal from a cellular terminal, or a time broadcast signal; ¶[0043] To solve the problems in the related art that a GPS signal acquisition mode is poor in lightning protection capacity and easy for a GPS signal to be interfered, and an RRU cannot be positioned and an antenna installation position cannot be too far, embodiments of the present disclosure provide a method for acquiring a GPS signal by using an RRU of a distributed base station, and the distributed base station.",
"A GPS satellite signal is received by using a GPS receiving module assembled on the RRU.. In regards to Claim 14, Wang teaches where the RRU is a first RRU and the synchronization-assisting radio-frequency signal comprises a signal from a second RRU. ¶[0043] GPS clock signals received by a plurality of RRUs are transmitted to a BBU via an optical fiber. In regards to Claim 15, Wang teaches where the signal from the second RRU comprises a downlink signal or a dedicated beacon signal. ¶[0043] GPS clock signals received by a plurality of RRUs are transmitted to a BBU via an optical fiber. In regards to Claims 16, 28, Wang teaches of receiving control instructions from the BBU over the fronthaul link; . ¶[0043] Difference statistics may be performed on clock data reported by the RRU and clock data fed back to the RRU by the BBU, and analysis data may be reported controlling at least one aspect of the receiving of the synchronization-assisting radio- frequency signal or the derivation of the information from the synchronization-assisting radio- frequency signal based on the control instructions; . ¶[0043] GPS clock signals received by a plurality of RRUs are transmitted to a BBU via an optical fiber.",
"The BBU performs centralized analysis and computation on multi-path input GPS clocks, and signals with large interferences are eliminated or optimized by means of an algorithm, and clock signals used by the present base station are generated, and are provided for the BBU and the RRU to use. In regards to Claim 17, Wang teaches of an instruction to set a receive frequency for a radio-frequency receiver in the RRU based on the control instructions to receive the synchronization-assisting radio-frequency signal through the radio frequency receiver. ¶ [0061] In an exemplary example, it is judged whether the performances of various GPS receivers are good or bad by acquiring the sensitivity information of different brands, specifications and batches of GPS receivers and analyzing an offset to a whole-network synchronization clock. Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C.",
"103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made. Claim 3, 9, 10, 11, 12, and 18 are rejected under 35 U.S.C.",
"103 as being unpatentable over Wang United States Patent Application 20170257840 in view of Barbieri United States Patent 10608734 In regards to Claim 3, Wang does not disclose, but Barbieri teaches where the RAN protocol comprises an Evolved Universal Terrestrial Radio Access Network (E-UTRAN); and the first-level protocol comprises an Evolved Universal Terrestrial Radio Access (E-UTRA) physical-layer (PHY) protocol; Column 09 Row 25 While an E-UTRAN system is used as an example in this document, the principles, systems, apparatus, and methods disclosed herein can be applied by one of ordinary skill to different radio access networks, including legacy networks such as Universal Mobile Telecommunications System (UMTS), other contemporary networks such as Worldwide Interoperability for Microwave Access (WiMAX), and future networks. It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Wang.",
"One would have been motivated to modify Yuan in this manner so that distributed RRU RaaS can be performed with legacy technologies. In regards to Claim 9, Wang teaches discloses the invention substantially as recited above. However Wang does not disclose where the non-deterministic fronthaul link utilizes an internet protocol Barbieri in the same field of endeavor teaches in (Column 09 Row 34 The RAN 200 also includes a fronthaul link 245 coupled to the BBUs 260A-C and the group of RRUs 230A-C and utilizing an adaptive fronthaul protocol for communication between the BBUs 260A-C and the group of RRUs 230A-C. In some embodiments, the fronthaul link 245 includes a non-deterministic communication link, where at a latency, an arbitration, a bandwidth, a jitter, a packet order, a packet delivery, or some other characteristic of the communication link, cannot be determined with certainty in advance. It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Wang. One would have been motivated to modify Wang in this manner so that communication with non-deterministic fronthaul link can be done.",
"In regards to Claim 10, Wang teaches discloses the invention substantially as recited above. However Wang does not disclose of tuning a first radio-frequency receiver in the RRU to an uplink frequency; receiving uplink data through the first radio-frequency receiver; tuning a second radio-frequency receiver in the RRU to a carrier frequency of the synchronization-assisting radio-frequency signal; and receiving the synchronization-assisting radio-frequency signal through the second radio-frequency receiver; Barbieri in the same field of endeavor teaches in (Column 19 Row 55 (70) RRUs may be dynamically configured by their controlling BBU instance, with the possible assistance of the BBU stack or a separate orchestration module, by sending special configuration commands to the RRUs over fronthaul link using the RaaS-FIP protocol. The configuration commands may include, but are not limited to, a synchronization command, a power control command, a network listening command, a poweroff command, a frequency retuning command, or other RaaS-RIP commands. In one non-limiting example that may be referred to as “cell breathing,” the controlling BBU may send a poweroff command to a RRU when a certain condition is detected.",
"It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Wang. One would have been motivated to modify Wang in this manner so that RRUs can be dynamically configured by their controlling BBU. In regards to Claim 11, 18, Wang teaches discloses the invention substantially as recited above. However Wang does not disclose of tuning a radio-frequency receiver to an uplink frequency for a first period of time; receiving uplink data through the first radio-frequency receiver during the first period of Barbieri in the same field of endeavor teaches in (Column 22 Row 5) . 80) In embodiments, the electronic circuitry 410 of the RRU 430 includes receiver circuitry, shown as transceiver circuitry 412, to receive a radio frequency signal from the antenna 411 and convert the received radio frequency signal to digital baseband samples. The transceiver circuitry 412 may include sub-circuits, such as conversion circuitry and/or RF circuitry. The electronic circuitry 410 also includes adaptive compression circuitry 426 to adaptively compress the digital baseband samples into fronthaul uplink information based on information received from the BBU 460 over the fronthaul link 445, and interface circuitry 436 to send the fronthaul uplink information to the BBU 460 over the fronthaul link 445 using the adaptive fronthaul protocol.",
"In some systems the adaptive compression performed by the adaptive compression circuitry 426 is lossy. The BBU 460 may include an uplink adaptive decompression block 446 as a part of the networking module to decompress the uplink data received from the RRU 430. Wang does not disclose of tuning the radio-frequency receiver to a carrier frequency of the synchronization- assisting radio-frequency signal during a second period of time that is non-overlapping with the first period of time; receiving the synchronization-assisting radio-frequency signal through the radio- frequency receiver during the second period of time. Column 19 Row 55 (70) RRUs may be dynamically configured by their controlling BBU instance, with the possible assistance of the BBU stack or a separate orchestration module, by sending special configuration commands to the RRUs over fronthaul link using the RaaS-FIP protocol. It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Wang.",
"One would have been motivated to modify Wang in this manner so that RRUs can be dynamically configured by their controlling BBU. In regards to Claim 12, Wang teaches discloses the invention substantially as recited above. However Wang does not disclose of using a single wideband radio-frequency receiver to simultaneously receive both uplink data in a first frequency sub-band and the synchronization-assisting radio-frequency signal in a second frequency sub-band; sending the uplink data to the BBU over the fronthaul link; Barbieri in the (Column 07 Row 12)(21) A BBU may run in the cloud, along with an orchestration layer, using an adaptive fronthaul protocol over a standard IP-based network to communicate with one or more RRUs. The adaptive fronthaul protocol may be referred to as RaaS Fronthaul over IP (RaaS-FIP). RaaS-FIP may be used for the exchange of datagrams between a BBU and a RRU. Many different RAN architectures can be supported by a RaaS architecture including, but not limited to, LTE and LTE-A. The BBU implements at least some portion of the networking stack of the RAN, including layer It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Wang.",
"One would have been motivated to modify Wang in this manner so that RRUs can be dynamically configured by their controlling BBU. In regards to Claim 19, Wang teaches discloses the invention substantially as recited above. However Wang does not disclose compressing a block of digital samples captured from the received synchronization- assisting radio-frequency signal to create the information derived from the synchronization-assisting radio-frequency signal; Barbieri in the same field of endeavor teaches in (Column 22 Row 5) . ….",
"The electronic circuitry 410 also includes adaptive compression circuitry 426 to adaptively compress the digital baseband samples into fronthaul uplink information based on information received from the BBU 460 over the fronthaul link 445, and interface circuitry 436 to send the fronthaul uplink information to the BBU 460 over the fronthaul link 445 using the adaptive fronthaul protocol. In some systems the adaptive compression performed by the adaptive compression circuitry 426 is lossy. The BBU 460 may include an uplink adaptive decompression block 446 as a part of the networking module to decompress the uplink data received from the RRU 430. It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Wang. One would have been motivated to modify Wang in this manner so that information derived from the synchronization-assisting radio-frequency signal RRUs can be conveniently transmitted. Conclusion; Any inquiry concerning this communication or earlier communications from the examiner should be directed to HENRY BARON whose telephone number is (571)270-1748.",
"The examiner can normally be reached on 8-5. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Yemane Mesfin can be reached on 571 272 3927. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see 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. /HENRY BARON/Examiner, Art Unit 2462 /KEVIN C. HARPER/Primary Examiner, Art Unit 2462"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-12-12.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
EXECUTION COPY TRADEMARK SECURITY AGREEMENT THIS TRADEMARK SECURITY AGREEMENT (the “Agreement”) made as of this 20th day of November, 2008 by Embark Corp., a Delaware corporation (“Grantor”), in favor of VIKING ASSET MANAGEMENT, LLC, a California limited liability company, in its capacity as Collateral Agent for the benefit of itself and each of the Buyers (as hereinafter defined) (together with its successors and assigns in such capacity, “Grantee”): WITNESSETH WHEREAS, on October 19, 2007, Longview Marquis Master Fund, L.P., a British Virgin Islands limited partnership (including as successor to The Longview Fund, L.P., a California limited partnership, under the Purchase Agreement (as defined below), “Marquis”; Marquis, together with its successors and assigns and each other holder of a Note (as defined below) and their respective successors and assigns, individually and collectively, the “Buyers”) purchased from MRU Holdings, Inc., a Delaware corporation (the “Company”), those certain senior secured notes, each dated October 19, 2007, in an original aggregate principal amount of $11,200,000 (such notes, together with any promissory notes or other securities issued in exchange or substitution therefor or replacement thereof, and as any of the same may be amended, supplemented, restated or modified and in effect from time to time, the “Notes”); WHEREAS, the Notes were acquired by Buyers and Buyers made certain financial accommodations to the Company pursuant to a Securities Purchase Agreement dated as of October 19, 2007 among the Company and the Buyers (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Purchase Agreement”);
WHEREAS, Company, Grantor, the other entities party thereto as “Included Subsidiaries,” Buyers and Grantee have entered into that certain Third Amendment of even date herewith (as the same may be amended, restated, supplemented or otherwise modified and in effect from time to time, the “Third Amendment”), pursuant to which the Company and the Buyers have agreed to amend certain provisions of the Purchase Agreement;
WHEREAS, Grantor is an indirect subsidiary of the Company and, as such, will derive substantial benefit and advantage from the continued financial accommodations to the Company set forth in the Purchase Agreement and the Notes, and it will be to Grantor’s direct interest and economic benefit to assist the Company in continuing to procure said financial accommodations from Buyers; WHEREAS, pursuant to a Guaranty dated as of October 19, 2007 by and among Grantor, the other entities party thereto as “Guarantors” in favor of Grantee (as the same may be amended, restated, supplemented or otherwise modified and in effect from time to time, the “Guaranty”), Grantor has guaranteed the Obligations (as defined therein) in favor of Grantee (on its behalf and on behalf of the Buyers); and
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WHEREAS, pursuant to the terms of a certain Security Agreement of even date herewith between Grantor and Grantee (as the same may be amended or otherwise modified from time to time, the “Security Agreement”), Grantor has granted to Grantee, for the benefit of Grantee and the Buyers, a security interest in substantially all of the assets of Grantor including all right, title and interest of Grantor in, to and under all now owned and hereafter acquired Trademarks (as defined in the Security Agreement), Trademark registrations, Trademark applications and Trademark licenses, together with the goodwill of the business symbolized by Grantor’s Trademarks, and all products and proceeds thereof; and WHEREAS, to induce the Buyers to continue to make financial accommodations to the Company under the Purchase Agreement and to enter into the Third Amendment, Grantor has agreed to pledge and grant a security interest in all of its right, title and interest in and to the Trademark Collateral (as hereinafter defined) as security for its Liabilities (as defined in the Security Agreement) for the benefit of the Grantee, the Buyers and their respective successors and assigns. NOW, THEREFORE, in consideration of the premises set forth herein and for other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, Grantor agrees as follows: 1. Incorporation of Security Agreement. The Security Agreement and the terms and provisions thereof are hereby incorporated herein in their entirety by this reference thereto. All terms capitalized but not otherwise defined herein shall have the same meanings herein as in the Security Agreement. 2. Grant and Reaffirmation of Grant of Security Interests. To secure the payment and performance of the Liabilities, Grantor hereby grants to Grantee, for its benefit and the benefit of Buyers, and hereby reaffirms its prior grant pursuant to the Security Agreement of, a continuing security interest in Grantor's entire right, title and interest in and to the following (all of the following items or types of property being herein collectively referred to as the “Trademark Collateral”), whether now owned or existing or hereafter created, acquired or arising: (i) each Trademark, Trademark registration and Trademark application, including, without limitation, the Trademarks, Trademark registrations (together with any reissues, continuations or extensions thereof) and Trademark applications referred to in Schedule 1 annexed hereto, and all of the goodwill of the business connected with the use of, and symbolized by, each Trademark, Trademark registration and Trademark application; (ii) each Trademark license and all of the goodwill of the business connected with the use of, and symbolized by, each Trademark license; and
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(iii) all products and proceeds of the foregoing, including without limitation, any claim by Grantor against third parties for past, present or future (a) infringement or dilution of any Trademark or Trademark registration including, without limitation, the Trademarks and Trademark registrations referred to in Schedule 1 annexed hereto, the Trademark registrations issued with respect to the Trademark applications referred in Schedule 1 and the Trademarks licensed under any Trademark license, or (b) injury to the goodwill associated with any Trademark, Trademark registration or Trademark licensed under any Trademark license. [Signature Page Follows]
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IN WITNESS WHEREOF, Grantor has duly executed this Agreement as of the date first written above. EMBARK CORP.
/s/ Vishal Garg By: Vishal Garg Its: Chief Executive Officer
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Agreed and Accepted As of the Date First Written Above VIKING ASSET MANAGEMENT L.L.C., a California limited liability company, in its capacity as collateral agent for the Buyers
By: /s/ S. Michael Rudolph Name: S. Michael Rudolph Title: Chief Financial Officer
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"EXECUTION COPY TRADEMARK SECURITY AGREEMENT THIS TRADEMARK SECURITY AGREEMENT (the “Agreement”) made as of this 20th day of November, 2008 by Embark Corp., a Delaware corporation (“Grantor”), in favor of VIKING ASSET MANAGEMENT, LLC, a California limited liability company, in its capacity as Collateral Agent for the benefit of itself and each of the Buyers (as hereinafter defined) (together with its successors and assigns in such capacity, “Grantee”): WITNESSETH WHEREAS, on October 19, 2007, Longview Marquis Master Fund, L.P., a British Virgin Islands limited partnership (including as successor to The Longview Fund, L.P., a California limited partnership, under the Purchase Agreement (as defined below), “Marquis”; Marquis, together with its successors and assigns and each other holder of a Note (as defined below) and their respective successors and assigns, individually and collectively, the “Buyers”) purchased from MRU Holdings, Inc., a Delaware corporation (the “Company”), those certain senior secured notes, each dated October 19, 2007, in an original aggregate principal amount of $11,200,000 (such notes, together with any promissory notes or other securities issued in exchange or substitution therefor or replacement thereof, and as any of the same may be amended, supplemented, restated or modified and in effect from time to time, the “Notes”); WHEREAS, the Notes were acquired by Buyers and Buyers made certain financial accommodations to the Company pursuant to a Securities Purchase Agreement dated as of October 19, 2007 among the Company and the Buyers (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Purchase Agreement”); WHEREAS, Company, Grantor, the other entities party thereto as “Included Subsidiaries,” Buyers and Grantee have entered into that certain Third Amendment of even date herewith (as the same may be amended, restated, supplemented or otherwise modified and in effect from time to time, the “Third Amendment”), pursuant to which the Company and the Buyers have agreed to amend certain provisions of the Purchase Agreement; WHEREAS, Grantor is an indirect subsidiary of the Company and, as such, will derive substantial benefit and advantage from the continued financial accommodations to the Company set forth in the Purchase Agreement and the Notes, and it will be to Grantor’s direct interest and economic benefit to assist the Company in continuing to procure said financial accommodations from Buyers; WHEREAS, pursuant to a Guaranty dated as of October 19, 2007 by and among Grantor, the other entities party thereto as “Guarantors” in favor of Grantee (as the same may be amended, restated, supplemented or otherwise modified and in effect from time to time, the “Guaranty”), Grantor has guaranteed the Obligations (as defined therein) in favor of Grantee (on its behalf and on behalf of the Buyers); and -------------------------------------------------------------------------------- WHEREAS, pursuant to the terms of a certain Security Agreement of even date herewith between Grantor and Grantee (as the same may be amended or otherwise modified from time to time, the “Security Agreement”), Grantor has granted to Grantee, for the benefit of Grantee and the Buyers, a security interest in substantially all of the assets of Grantor including all right, title and interest of Grantor in, to and under all now owned and hereafter acquired Trademarks (as defined in the Security Agreement), Trademark registrations, Trademark applications and Trademark licenses, together with the goodwill of the business symbolized by Grantor’s Trademarks, and all products and proceeds thereof; and WHEREAS, to induce the Buyers to continue to make financial accommodations to the Company under the Purchase Agreement and to enter into the Third Amendment, Grantor has agreed to pledge and grant a security interest in all of its right, title and interest in and to the Trademark Collateral (as hereinafter defined) as security for its Liabilities (as defined in the Security Agreement) for the benefit of the Grantee, the Buyers and their respective successors and assigns.",
"NOW, THEREFORE, in consideration of the premises set forth herein and for other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, Grantor agrees as follows: 1. Incorporation of Security Agreement. The Security Agreement and the terms and provisions thereof are hereby incorporated herein in their entirety by this reference thereto. All terms capitalized but not otherwise defined herein shall have the same meanings herein as in the Security Agreement. 2. Grant and Reaffirmation of Grant of Security Interests. To secure the payment and performance of the Liabilities, Grantor hereby grants to Grantee, for its benefit and the benefit of Buyers, and hereby reaffirms its prior grant pursuant to the Security Agreement of, a continuing security interest in Grantor's entire right, title and interest in and to the following (all of the following items or types of property being herein collectively referred to as the “Trademark Collateral”), whether now owned or existing or hereafter created, acquired or arising: (i) each Trademark, Trademark registration and Trademark application, including, without limitation, the Trademarks, Trademark registrations (together with any reissues, continuations or extensions thereof) and Trademark applications referred to in Schedule 1 annexed hereto, and all of the goodwill of the business connected with the use of, and symbolized by, each Trademark, Trademark registration and Trademark application; (ii) each Trademark license and all of the goodwill of the business connected with the use of, and symbolized by, each Trademark license; and -------------------------------------------------------------------------------- (iii) all products and proceeds of the foregoing, including without limitation, any claim by Grantor against third parties for past, present or future (a) infringement or dilution of any Trademark or Trademark registration including, without limitation, the Trademarks and Trademark registrations referred to in Schedule 1 annexed hereto, the Trademark registrations issued with respect to the Trademark applications referred in Schedule 1 and the Trademarks licensed under any Trademark license, or (b) injury to the goodwill associated with any Trademark, Trademark registration or Trademark licensed under any Trademark license.",
"[Signature Page Follows] -------------------------------------------------------------------------------- IN WITNESS WHEREOF, Grantor has duly executed this Agreement as of the date first written above. EMBARK CORP. /s/ Vishal Garg By: Vishal Garg Its: Chief Executive Officer -------------------------------------------------------------------------------- Agreed and Accepted As of the Date First Written Above VIKING ASSET MANAGEMENT L.L.C., a California limited liability company, in its capacity as collateral agent for the Buyers By: /s/ S. Michael Rudolph Name: S. Michael Rudolph Title: Chief Financial Officer --------------------------------------------------------------------------------"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Mr. Justice Travieso, dissenting. On February 1, 1939, Hon. Marcelino Romany, Judge of the District Court of San Juan, issued an order requiring Manuel Torres to appear before him and show cause why he should not be punished for contempt. In the preamble to said order, as the facts constituting the above contempt, *597lie sets out as follows: That on the day in question during a prosecution for murder in said district court, in which a jury had been impaneled, Judge Romany “was assaulted by the accused shortly after the court adjourned just as the judge was leaving his office and precisely in the corridor closé by the court room;” that the conduct of the accused tended to interrupt the proceedings and to terrorize the jurors who were impaneled; and that such fact constitutes contempt because the same undermines the prestige of the courts of justice. On the day set in the order the accused appeared assisted by counsel, and to the question from the court whether he had anything to allege he answered that he denied the charges against him, whereupon the court entered judgment sentencing the accused to thirty days in jail and to pay a $200 fine. The accused took the present appeal from the above sentence and assigns as error the conviction of the accused by the court of constructive contempt without the hearing of any evidence. There is no controversy as to the facts, as stated in the order to show cause, constituting contempt, if proven; and 1hat such contempt should be punished severely, as a protection of the prestige of the courts to which citizens owe obedience and respect. The point argued by the defense and the prosecution and which has given rise to an interesting discussion by the members of this court, is as follows: Was it error for the trial court to convict the defendant, notwithstanding his denial of the charges against him, without hearing evidence tending to substantiate said charges? Any act or conduct tending to prevent or obstruct and which does prevent or obstruct a court from administering justice, or which undermines its authority or dignity constitutes contempt. Contempt may be either direct, or indirect or constructive. In the volume dealing with Contempt of the “National Lawyers’ Manual,” by Dangel, contempt is defined as followed: *598“7. Direct Contempt. — A direct contempt consists of something done, or omitted to be done, in the presence of the court tending to impede or interrupt its proceedings or reflect upon its integrity. It occurs only where the acts constituting the contempt have been committed in the presence of the court. It is an insult committed in the presence of the court, or of a judge when acting as such, or a resistance of or interference with the lawful authority of the court or judge in his presence, or improper conduct so near to the court or judge acting judicially as to interrupt or hinder judicial proceedings. “8. Indirect Contempt — Indirect contempt is synonymous with constructive contempt. It consists of an act having a tendency to obstruct and embarrass or prevent the due administration of justice, done at a distance and not during the session of the court nor in its immediate view and presence. “Aii indirect or constructive contempt is an act done, not in the presence of the court or of a judge acting judicially, but at a distance, under circumstances that reasonably tend to degrade the court or the judge as a pudicial officer, or to obstruct, interrupt, prevent, or embarrass the administration of justice by the court or judge.” (Italics ours.) See: 23 A.L.R. 183; 27 A.L.R. 1219; 31 A.L.R. 1226; 49 A.L.R. 647; Globe Newspaper Co. v. Com., 188 Mass. 449; Hurley v. Com., 188 Mass. 443; Blackemburg v. Com., 272 Mass. 25; Bailey on Habeas Corpus, sec. 62, p. 212; Weldon v. State, 234 S.W. 466; and Turquette v. State, 298 S.W. 15. Under the facts as set out in the order to show cause, the act charged against defendant Manuel Torres constitutes indirect or constructive criminal contempt. It is criminal, because the assault upon the person of the judge, committed under the circumstances set out in said order, affects the authority, prestige and dignity of the court and tends to obstruct the free and proper administration of justice. It is indirect or constructive, because the alleged “assault” or attack did not occur while the court was in session, nor in the immediate presence of the court, nor so close by the court while in session that it tended to interrupt the proceedings, nor at a time when the assaulted judge was performing judicial functions. The fact was committed “after the court *599liad adjourned, just as the judge was leaving his office, and precisely in the corridor close by the court room.” All of the authorities agree that where direct contempt is involved, committed in the immediate presence of the court or so near the place where the court is sitting that it tends to interrupt its proceedings, the court has the inherent power to impose the punishment summarily, without the necessity of hearing evidence. This power is moreover expressly conferred on courts by section 3 of the Act of March 8, 1906, (which amended that of March 1, 1902), which provides that “when contempt is committed in the immediate presence and view of the court, the punishment therefor may he imposed immediately by the judge of the court, or the presiding judge thereof.” On p. 206 of the National Lawyers’ Manual, supra, it is said: “The trend of the court in modern times is that even in direct contempt there should be proceedings, wherein the accused should be formally charged, orally or in writing, with the facts alleged to constitute the contempt, and complete speeiñeations be given in detail. There should be required a hearing by the court, and proof should be necessary to establish the guilt of the accused.” (In this connection the case of Blackenburg v. Com., 272 Mass. 25, is cited.) In the instant case the trial judge gave as his opinion, and so stated in his judgment, “that it is unnecessary to hear evidence in contempt proceedings wherein the judge is the person assaulted, inasmuch as the judge, need not pass upon any evidence because he has already personal knowledge of the facts and could never decide that an assault was never committed, as.such fact was personally known to the judge and, consequently, the submission of evidence was quite unnecessary.” Where, as in the case at bar, an indirect or constructive contempt is involved, the accused is entitled to a hearing on the charge brought against him, in which he should be given an opportunity to examine the witnesses for the prosecution *600and to produce Ms own witnesses. Any personal knowledge that might be had by the trial judge is no substitute for the evidence in support of every conviction and judgment. “The judgment of contempt should not be entered without any evidence being received by the court upon the basis of facts within the mind of the judge only, tut not a matter of record in the case. Unless this is the rule, the finality of judgment or conviction can never be impeached because of some fact within the knowledge, or assumed knowledge, of the judge, not a matter of record, and, upon review by the reviewing court, not carried into the return on the writ of error. The individual knowledge of a fact on the part of the trial judge, not a matter of common knowledge, should not dispense with proof of such fact, or at least the placing of the fact of such knowledge by the judge upon the record and resort should not be had to it for the purpose of suplementing the record. The reason for this is important, for, if the judge enters a judgment or conviction of record upon facts known or believed to be known to him, without being called upon to notice judicially such facts at the time and incorporate the same in the record, no opportunity is afforded the accused claiming the invalidity of the judgment to controvert the facts in the mind of the judge and no opportunfiy is presented for the reviewing court to have knowledge of such facts known to the judge, or which he believes he knows, but not commonly known. “When the contempt is not in open court, there is no right or reason to dispense with the necessity of charges and the opportunity to the accused to present his defense by witnesses and argument.” National Lawyers’ Manual, supra, pp. 206, 207. The necessity to bear evidence in a prosecution for criminal indirect contempt is evident. Tbe accused is protected by the statutory presumption of innocence until his guilt is established beyond any reasonable doubt. The burden of proof in criminal contempt proceedings falls upon the complainant, and it devolves upon the latter to prove the allegations of contempt beyond every reasonable doubt. The accused can not be compelled to testify against him. See: N.L.M. “Contempt,” pp. 76 and 242; Michaelson v. U. S., 266 U.S. 42; Gompers v. Bucks Stove & Range Co., 221 U.S. *601418, 441; People v. Spain, 307 Ill. 283; Com. v. Madeiros, 255 Mass. 304; Clark v. U. S., 289 U.S. 1; 35 A.L.R. 451; Root v. McDonald, 260 Mass. 344. The facts in Cooke v. United States, 267 U.S. 517, 69 L.Ed. 767, are similar to those of the case at bar and the decision therein lays down the doctrine applicable to cases like the one under consideration. Attorney Cooke and his client Walker were sentenced by the Federal District Court to thirty days in jail for contempt. Walker had been sued several times and in one of the suits the jury adjudged him to pay $56,000. The day after the verdict, while the court was open trying another case, and during a 10-minute recess, Walker, on instructions from bis attorney, delivered to the judge in the latter’s office, a few feet from the court room, a letter marked “Personal,” where referring to the suits pending in which Walker was a defendant, the attorney advised and prayed the judge to withdraw from the cases to avoid the necessity for the attorney to challenge him formally. In the letter the judge was charged with passion, prejudice and bias against Walker. The judgment was affirmed on appeal by the Circuit Court. The case was taken on certiorari to the Federal Supreme Court which reversed the judgment and remanded the case to the lower court for further proceedings not inconsistent with the opinion rendered through Mr. Chief Justice Taft. The Supreme Court, after agreeing with the lower court that the letter in question was contemptuous, said: “But while we reach this conclusion, we are far from approving the course of the judge in the procedure, or absence of it, adopted by him in sentencing the petitioner. He treated the ease as if the objectionable words had been uttered against him in open court. “To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the^offense. *602Such summary vindication of the court’s dignity and authority is necessary. It has always been so in the courts of the common law and the punishment imposed is due process of law. Such a case had great consideration in the decision of this Court in Ex parte Terry, 128 U. S. 289. It was there held that a court of the United States upon the commission of a contempt in open court might upon its own knowledge of the facts without further proof, without issue or trial, and without hearing an explanation of the motives of the offender, immediately proceed to determine whether the facts justified punishment and to inflict such punishment as was fitting under the law. “The important distinction between the Terry Case and the one at bar is that this contempt was not in open court. This is fully brought out in Saving, Petitioner, 131 U. S. 267. The contempt there was an effort to deter a witness, in attendance upon a court of the United States in obedience to a subpoena, while he was in a waiting room for witnesses near the court room, from testifying, and the offering him money in the hallway of the court-house as an inducement. This was held to be ‘ misbehavior in the presence of the court ’ under section 725 R. S. (now section 268 of the Judicial Code). The Court, speaking by Mr. Justice Harlan, said (page 277) ; “ ‘We are of opinion that, within the meaning of the statute, the court, at least when in session, is present in every part of the place set apart for its own use, and for use of its officers, jurors and witnesses; and misbehavior anywhere in such place is misbehavior in the presence of the court. It is true that the mode of proceeding for contempt is not the same in every case of such misbehavior. Where the contempt is committed directly under the eye or within the view of the court, it may proceed “upon its own knowledge of the facts and punish the offender, without further proof, and without issue or trial in any form,’ ....
“We think the distinction finds its reason not any more in the ability of the judge to see and hear what happens in the open court than in the danger that, unless such an open threat to the orderly procedure of the court and such a flagrant defiance of the person and presence of the judge before the public in the ‘ very hallowed place of justice,’ as Blackstone has it, is not instantly suppressed and punished, demoralization of the court’s authority will follow. Punishment without issue or trial was so contrary to the usual and ordinarilv indispensable hearing before judgment, *603constituting due process, that the assumption that the court saw every.thing that went on in open court was required to justify the exception,- but the need for immediate penal vindication of the dignity of the court created it. “"When the contempt is not in open court, however, there is no such right or reason in dispensing with the necessity of charges and the opportunity of the accused to present his defense by witnesses and argument. ...” In the ease at bar, the accused was sufficiently advised as to the charges ag*ainst him. The denial of such charges by the accused raised an issue similar to that raised by a plea of “not guilty.” Hence, as the contempt herein involved was not committed in open court, the necessity arose to hold a trial and to hear evidence in support of the charge. By failing to proceed thus, the accused was deprived of the due process of law and the sentence imposed on him is void. In the case at bar as in that of Cooke v. United States, supra, it has been assigned as error that it was the assaulted judge who took cognizance of the case and punished the accused. The Federal Supreme Court, in the above case, when considering the issue, expressed itself as follows:
The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indipensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not aways possible. . . . .All we can say upon the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of *604contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place. (Citations.) “The ease before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the proceedings abundantly shows. We think, therefore, that when this case again reaches the District Court to which it must be remanded, the judge who imposed the sentence herein should invite the senior circuit judge of the circuit to assign another judge to sit in the second hearing of the charge against the petitioner.” The main objection of the writer of this opinion against the proposed affirmance of the judgment is that the accused and appellant was convicted without the production of any evidence against him, that is, without due process of law. The necessity for this evidence is evident. Neither in the order to show cause, which can not be considered as evidence, nor in the judgment, is there established any relationship or connection between the assault upon the judge and the case under prosecution in the district court. A statement from the judge would certainly have established such connection, which is absolutely necessary for the act, which was not committed in open court, to constitute contempt of court. No record or transcript of evidence is before this court to enable it to determine whether the conviction of the defendant rested on sufficient evidence. The affirmance of the judg*ment, therefore, must necessarily rest on the presumption that what the trial judge had in mind was sufficient legal evidence to warrant the conviction of the accused. There is no law authorizing such presumption. If there were any such law, its effect would be the destruction of the presumption of evidence in favor of every accused. The precedent that would be established by the proposed judgment, that is, that a citizen may be deprived of his liberty without any evidence against him being produced, on the mere fact that the judge bringing the charge, who is the one to *605try him, is acquainted with the facts, is in our opinion a dangerous one. The dignity and prestige of courts would neither he impaired nor injured by setting up the legal doctrine that where an alleged contempt has not been committed in the immediate presence of a court in session and consists in an offensive act against the person of the judge, the latter shall appoint another judge to take cognizance of the case and shall take the stand to sustain the charge brought by him so as to give the accused an opportunity to cross-examine him. For the foregoing reasons I dissent from the majority opinion, and it is my opinion that the judgment ought to have been reversed and the case remanded to the lower court with instructions to have the case tried d& novo before either of the other three judges of the District Court of San Juan. I am authorized by Mr. Justice De Jesús to state that he concurs in this opinion. | 11-23-2022 | [
"Mr. Justice Travieso, dissenting. On February 1, 1939, Hon. Marcelino Romany, Judge of the District Court of San Juan, issued an order requiring Manuel Torres to appear before him and show cause why he should not be punished for contempt. In the preamble to said order, as the facts constituting the above contempt, *597lie sets out as follows: That on the day in question during a prosecution for murder in said district court, in which a jury had been impaneled, Judge Romany “was assaulted by the accused shortly after the court adjourned just as the judge was leaving his office and precisely in the corridor closé by the court room;” that the conduct of the accused tended to interrupt the proceedings and to terrorize the jurors who were impaneled; and that such fact constitutes contempt because the same undermines the prestige of the courts of justice. On the day set in the order the accused appeared assisted by counsel, and to the question from the court whether he had anything to allege he answered that he denied the charges against him, whereupon the court entered judgment sentencing the accused to thirty days in jail and to pay a $200 fine.",
"The accused took the present appeal from the above sentence and assigns as error the conviction of the accused by the court of constructive contempt without the hearing of any evidence. There is no controversy as to the facts, as stated in the order to show cause, constituting contempt, if proven; and 1hat such contempt should be punished severely, as a protection of the prestige of the courts to which citizens owe obedience and respect. The point argued by the defense and the prosecution and which has given rise to an interesting discussion by the members of this court, is as follows: Was it error for the trial court to convict the defendant, notwithstanding his denial of the charges against him, without hearing evidence tending to substantiate said charges?",
"Any act or conduct tending to prevent or obstruct and which does prevent or obstruct a court from administering justice, or which undermines its authority or dignity constitutes contempt. Contempt may be either direct, or indirect or constructive. In the volume dealing with Contempt of the “National Lawyers’ Manual,” by Dangel, contempt is defined as followed: *598“7. Direct Contempt. — A direct contempt consists of something done, or omitted to be done, in the presence of the court tending to impede or interrupt its proceedings or reflect upon its integrity.",
"It occurs only where the acts constituting the contempt have been committed in the presence of the court. It is an insult committed in the presence of the court, or of a judge when acting as such, or a resistance of or interference with the lawful authority of the court or judge in his presence, or improper conduct so near to the court or judge acting judicially as to interrupt or hinder judicial proceedings. “8. Indirect Contempt — Indirect contempt is synonymous with constructive contempt. It consists of an act having a tendency to obstruct and embarrass or prevent the due administration of justice, done at a distance and not during the session of the court nor in its immediate view and presence. “Aii indirect or constructive contempt is an act done, not in the presence of the court or of a judge acting judicially, but at a distance, under circumstances that reasonably tend to degrade the court or the judge as a pudicial officer, or to obstruct, interrupt, prevent, or embarrass the administration of justice by the court or judge.” (Italics ours.) See: 23 A.L.R. 183; 27 A.L.R.",
"1219; 31 A.L.R. 1226; 49 A.L.R. 647; Globe Newspaper Co. v. Com., 188 Mass. 449; Hurley v. Com., 188 Mass. 443; Blackemburg v. Com., 272 Mass. 25; Bailey on Habeas Corpus, sec. 62, p. 212; Weldon v. State, 234 S.W. 466; and Turquette v. State, 298 S.W. 15. Under the facts as set out in the order to show cause, the act charged against defendant Manuel Torres constitutes indirect or constructive criminal contempt. It is criminal, because the assault upon the person of the judge, committed under the circumstances set out in said order, affects the authority, prestige and dignity of the court and tends to obstruct the free and proper administration of justice. It is indirect or constructive, because the alleged “assault” or attack did not occur while the court was in session, nor in the immediate presence of the court, nor so close by the court while in session that it tended to interrupt the proceedings, nor at a time when the assaulted judge was performing judicial functions. The fact was committed “after the court *599liad adjourned, just as the judge was leaving his office, and precisely in the corridor close by the court room.” All of the authorities agree that where direct contempt is involved, committed in the immediate presence of the court or so near the place where the court is sitting that it tends to interrupt its proceedings, the court has the inherent power to impose the punishment summarily, without the necessity of hearing evidence.",
"This power is moreover expressly conferred on courts by section 3 of the Act of March 8, 1906, (which amended that of March 1, 1902), which provides that “when contempt is committed in the immediate presence and view of the court, the punishment therefor may he imposed immediately by the judge of the court, or the presiding judge thereof.” On p. 206 of the National Lawyers’ Manual, supra, it is said: “The trend of the court in modern times is that even in direct contempt there should be proceedings, wherein the accused should be formally charged, orally or in writing, with the facts alleged to constitute the contempt, and complete speeiñeations be given in detail. There should be required a hearing by the court, and proof should be necessary to establish the guilt of the accused.” (In this connection the case of Blackenburg v.",
"Com., 272 Mass. 25, is cited.) In the instant case the trial judge gave as his opinion, and so stated in his judgment, “that it is unnecessary to hear evidence in contempt proceedings wherein the judge is the person assaulted, inasmuch as the judge, need not pass upon any evidence because he has already personal knowledge of the facts and could never decide that an assault was never committed, as.such fact was personally known to the judge and, consequently, the submission of evidence was quite unnecessary.” Where, as in the case at bar, an indirect or constructive contempt is involved, the accused is entitled to a hearing on the charge brought against him, in which he should be given an opportunity to examine the witnesses for the prosecution *600and to produce Ms own witnesses. Any personal knowledge that might be had by the trial judge is no substitute for the evidence in support of every conviction and judgment. “The judgment of contempt should not be entered without any evidence being received by the court upon the basis of facts within the mind of the judge only, tut not a matter of record in the case.",
"Unless this is the rule, the finality of judgment or conviction can never be impeached because of some fact within the knowledge, or assumed knowledge, of the judge, not a matter of record, and, upon review by the reviewing court, not carried into the return on the writ of error. The individual knowledge of a fact on the part of the trial judge, not a matter of common knowledge, should not dispense with proof of such fact, or at least the placing of the fact of such knowledge by the judge upon the record and resort should not be had to it for the purpose of suplementing the record. The reason for this is important, for, if the judge enters a judgment or conviction of record upon facts known or believed to be known to him, without being called upon to notice judicially such facts at the time and incorporate the same in the record, no opportunity is afforded the accused claiming the invalidity of the judgment to controvert the facts in the mind of the judge and no opportunfiy is presented for the reviewing court to have knowledge of such facts known to the judge, or which he believes he knows, but not commonly known.",
"“When the contempt is not in open court, there is no right or reason to dispense with the necessity of charges and the opportunity to the accused to present his defense by witnesses and argument.” National Lawyers’ Manual, supra, pp. 206, 207. The necessity to bear evidence in a prosecution for criminal indirect contempt is evident. Tbe accused is protected by the statutory presumption of innocence until his guilt is established beyond any reasonable doubt. The burden of proof in criminal contempt proceedings falls upon the complainant, and it devolves upon the latter to prove the allegations of contempt beyond every reasonable doubt. The accused can not be compelled to testify against him. See: N.L.M. “Contempt,” pp.",
"76 and 242; Michaelson v. U. S., 266 U.S. 42; Gompers v. Bucks Stove & Range Co., 221 U.S. *601418, 441; People v. Spain, 307 Ill. 283; Com. v. Madeiros, 255 Mass. 304; Clark v. U. S., 289 U.S. 1; 35 A.L.R. 451; Root v. McDonald, 260 Mass. 344. The facts in Cooke v. United States, 267 U.S. 517, 69 L.Ed. 767, are similar to those of the case at bar and the decision therein lays down the doctrine applicable to cases like the one under consideration. Attorney Cooke and his client Walker were sentenced by the Federal District Court to thirty days in jail for contempt. Walker had been sued several times and in one of the suits the jury adjudged him to pay $56,000.",
"The day after the verdict, while the court was open trying another case, and during a 10-minute recess, Walker, on instructions from bis attorney, delivered to the judge in the latter’s office, a few feet from the court room, a letter marked “Personal,” where referring to the suits pending in which Walker was a defendant, the attorney advised and prayed the judge to withdraw from the cases to avoid the necessity for the attorney to challenge him formally. In the letter the judge was charged with passion, prejudice and bias against Walker.",
"The judgment was affirmed on appeal by the Circuit Court. The case was taken on certiorari to the Federal Supreme Court which reversed the judgment and remanded the case to the lower court for further proceedings not inconsistent with the opinion rendered through Mr. Chief Justice Taft. The Supreme Court, after agreeing with the lower court that the letter in question was contemptuous, said: “But while we reach this conclusion, we are far from approving the course of the judge in the procedure, or absence of it, adopted by him in sentencing the petitioner. He treated the ease as if the objectionable words had been uttered against him in open court. “To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the^offense.",
"*602Such summary vindication of the court’s dignity and authority is necessary. It has always been so in the courts of the common law and the punishment imposed is due process of law. Such a case had great consideration in the decision of this Court in Ex parte Terry, 128 U. S. 289. It was there held that a court of the United States upon the commission of a contempt in open court might upon its own knowledge of the facts without further proof, without issue or trial, and without hearing an explanation of the motives of the offender, immediately proceed to determine whether the facts justified punishment and to inflict such punishment as was fitting under the law. “The important distinction between the Terry Case and the one at bar is that this contempt was not in open court. This is fully brought out in Saving, Petitioner, 131 U. S. 267. The contempt there was an effort to deter a witness, in attendance upon a court of the United States in obedience to a subpoena, while he was in a waiting room for witnesses near the court room, from testifying, and the offering him money in the hallway of the court-house as an inducement. This was held to be ‘ misbehavior in the presence of the court ’ under section 725 R. S. (now section 268 of the Judicial Code).",
"The Court, speaking by Mr. Justice Harlan, said (page 277) ; “ ‘We are of opinion that, within the meaning of the statute, the court, at least when in session, is present in every part of the place set apart for its own use, and for use of its officers, jurors and witnesses; and misbehavior anywhere in such place is misbehavior in the presence of the court. It is true that the mode of proceeding for contempt is not the same in every case of such misbehavior. Where the contempt is committed directly under the eye or within the view of the court, it may proceed “upon its own knowledge of the facts and punish the offender, without further proof, and without issue or trial in any form,’ .... “We think the distinction finds its reason not any more in the ability of the judge to see and hear what happens in the open court than in the danger that, unless such an open threat to the orderly procedure of the court and such a flagrant defiance of the person and presence of the judge before the public in the ‘ very hallowed place of justice,’ as Blackstone has it, is not instantly suppressed and punished, demoralization of the court’s authority will follow. Punishment without issue or trial was so contrary to the usual and ordinarilv indispensable hearing before judgment, *603constituting due process, that the assumption that the court saw every.thing that went on in open court was required to justify the exception,- but the need for immediate penal vindication of the dignity of the court created it.",
"“\"When the contempt is not in open court, however, there is no such right or reason in dispensing with the necessity of charges and the opportunity of the accused to present his defense by witnesses and argument. ...” In the ease at bar, the accused was sufficiently advised as to the charges ag*ainst him. The denial of such charges by the accused raised an issue similar to that raised by a plea of “not guilty.” Hence, as the contempt herein involved was not committed in open court, the necessity arose to hold a trial and to hear evidence in support of the charge. By failing to proceed thus, the accused was deprived of the due process of law and the sentence imposed on him is void. In the case at bar as in that of Cooke v. United States, supra, it has been assigned as error that it was the assaulted judge who took cognizance of the case and punished the accused. The Federal Supreme Court, in the above case, when considering the issue, expressed itself as follows: The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indipensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency.",
"The substitution of another judge would avoid either tendency but it is not aways possible. . . . .All we can say upon the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of *604contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place. (Citations.) “The ease before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the proceedings abundantly shows.",
"We think, therefore, that when this case again reaches the District Court to which it must be remanded, the judge who imposed the sentence herein should invite the senior circuit judge of the circuit to assign another judge to sit in the second hearing of the charge against the petitioner.” The main objection of the writer of this opinion against the proposed affirmance of the judgment is that the accused and appellant was convicted without the production of any evidence against him, that is, without due process of law. The necessity for this evidence is evident. Neither in the order to show cause, which can not be considered as evidence, nor in the judgment, is there established any relationship or connection between the assault upon the judge and the case under prosecution in the district court. A statement from the judge would certainly have established such connection, which is absolutely necessary for the act, which was not committed in open court, to constitute contempt of court.",
"No record or transcript of evidence is before this court to enable it to determine whether the conviction of the defendant rested on sufficient evidence. The affirmance of the judg*ment, therefore, must necessarily rest on the presumption that what the trial judge had in mind was sufficient legal evidence to warrant the conviction of the accused. There is no law authorizing such presumption. If there were any such law, its effect would be the destruction of the presumption of evidence in favor of every accused. The precedent that would be established by the proposed judgment, that is, that a citizen may be deprived of his liberty without any evidence against him being produced, on the mere fact that the judge bringing the charge, who is the one to *605try him, is acquainted with the facts, is in our opinion a dangerous one. The dignity and prestige of courts would neither he impaired nor injured by setting up the legal doctrine that where an alleged contempt has not been committed in the immediate presence of a court in session and consists in an offensive act against the person of the judge, the latter shall appoint another judge to take cognizance of the case and shall take the stand to sustain the charge brought by him so as to give the accused an opportunity to cross-examine him. For the foregoing reasons I dissent from the majority opinion, and it is my opinion that the judgment ought to have been reversed and the case remanded to the lower court with instructions to have the case tried d& novo before either of the other three judges of the District Court of San Juan.",
"I am authorized by Mr. Justice De Jesús to state that he concurs in this opinion."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8533804/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
On Rehearing. Per Curiam. — The opinion of the Department rendered in these causes will be found reported in 123 Wash. 236, 212 Pac. 283. After the. opinion was handed down, re-hearings were granted on the petition of the appellants, and the cause argued before the court En Banc. On the principal questions discussed and determined in the Department opinion, the court is in accord. A majority of the court, however, are of the opinion that the Department was in error in its conclusion that funeral expenses were not recoverable against one causing the death of another by wrongful act, and to that extent the judgment directed in the Department opinion must be modified. *658The judgments in each of the actions are therefore reversed and the causes are remanded with instructions to grant a new trial in each of the causes. | 08-12-2021 | [
"On Rehearing. Per Curiam. — The opinion of the Department rendered in these causes will be found reported in 123 Wash. 236, 212 Pac. 283. After the. opinion was handed down, re-hearings were granted on the petition of the appellants, and the cause argued before the court En Banc. On the principal questions discussed and determined in the Department opinion, the court is in accord. A majority of the court, however, are of the opinion that the Department was in error in its conclusion that funeral expenses were not recoverable against one causing the death of another by wrongful act, and to that extent the judgment directed in the Department opinion must be modified. *658The judgments in each of the actions are therefore reversed and the causes are remanded with instructions to grant a new trial in each of the causes."
]
| https://www.courtlistener.com/api/rest/v3/opinions/4722251/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT December 16, 2005 No. 05-10819 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________
D.C. Docket No. 04-00032-CR-J-20MMH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES EDWARD MUSSELMAN, a.k.a. Charlie,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida _________________________
(December 16, 2005)
Before BLACK, BARKETT and HILL, Circuit Judges
PER CURIAM:
Ronald W. Maxwell, appointed counsel for Charles Edward Musselman in this direct criminal appeal, has moved to withdraw from further representation of
the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87
S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record
reveals that counsel’s assessment of the relative merit of the appeal is correct.
Because independent examination of the entire record reveals no arguable issues of
merit, counsel’s motion to withdraw is GRANTED, and Musselman’s conviction
and sentence are AFFIRMED.
2 | 04-25-2010 | [
"[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT December 16, 2005 No. 05-10819 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D.C. Docket No. 04-00032-CR-J-20MMH UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CHARLES EDWARD MUSSELMAN, a.k.a. Charlie, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (December 16, 2005) Before BLACK, BARKETT and HILL, Circuit Judges PER CURIAM: Ronald W. Maxwell, appointed counsel for Charles Edward Musselman in this direct criminal appeal, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Musselman’s conviction and sentence are AFFIRMED.",
"2"
]
| https://www.courtlistener.com/api/rest/v3/opinions/41714/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 17 2018, 8:39 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Keith A. Hoglund Curtis T. Hill, Jr. Michigan City, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Keith A. Hoglund, July 17, 2018 Appellant-Plaintiff, Court of Appeals Case No. 17A-SC-3051 v. Appeal from the LaPorte Superior Court Robert E. Carter, Jr., The Honorable Nancy L. Commissioner of the Indiana Gettinger, Magistrate Department of Correction, Trial Court Cause No. Appellee-Defendant. 46D04-1707-SC-1424
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018 Page 1 of 7 Case Summary [1] Following a trial by affidavit, Keith A. Hoglund (“Hoglund”) appeals, pro se,
the small claims court order denying his claim in replevin. The sole issue on
appeal is whether the small claims court clearly erred.
[2] We affirm.
Facts and Procedural History [3] Hogland is serving a fifty-year sentence in the Indiana Department of
Correction (“DOC”). On May 1, 2017, he was housed at the Indiana State
Prison. On that date, employees of the DOC confiscated a guitar, a guitar case,
a tuner, guitar strings, a capo, cleaner for the guitar, buffing rags, and guitar
picks from Hoglund’s cell. The DOC gave Hoglund State Form 36030, entitled
“Notice of Confiscated Property,” which noted the items confiscated, the
reason for confiscation, and the right to appeal through the “Offender
Grievance Process.” Appellant’s App. at 51. The items were confiscated
pursuant to a 2016 change in DOC Operation Procedures for Policy No. 02-01-
101. This policy change, effective April 1, 2016, stated in relevant part:
MUSICAL INSTRUMENTS:
Note: Musical instruments will no longer be approved to be kept within individual cells. If you wish to donate your instrument to Recreation for use within Recreations Musical Program or within the Chapel for use in the Choir, those may be possibilities, if space is available. Otherwise, all musical instruments will be
Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018 Page 2 of 7 removed from ISP. Personal instruments will not stored [sic] in any location at ISP/ISO.
Id. at 53. The new policy allowed an inmate whose instrument was confiscated
to either send the instrument to a person outside of the prison or to donate the
instrument to the DOC for internal use.
[4] In an undated notice,1 the DOC informed Hoglund that, as of June 1, 2017, his
confiscated property had been in storage at the DOC for thirty days, and that he
had thirty days left to send out or mail his property to someone else or the
property would be destroyed. Id. at 52. On July 10, 2017, Hoglund filed his
pro se notice of small claim against the Commissioner of the DOC, contending
the DOC wrongly confiscated his personal property and seeking a return of the
property or a reimbursement for its monetary value. Id. at 9, 10.
[5] In an order dated August 30, the small claims court set the matter for trial by
affidavit.2 The parties each filed affidavits with the court. Hoglund’s affidavit
referred to “Claimant’s Designation of Evidence (Attachment[s 1-5]),” but no
such document or attachments are contained in the record. Id. at 37-41. The
DOC affidavit was executed by Pam James, a DOC tort claims investigator,
and it included several exhibits, including the DOC “Master Property List” of
1 Hoglund stated in his “Affidavit of Events in Support of Evidence” (filed in the small claims court), that he received the undated notice on June 7, 2017. Appellant’s App. at 38. 2 In support of allowing prosecution of the trial by documentary evidence, the court cited Hill v. Duckworth, 679 N.E.2d 938, 940 n.1 (Ind. Ct. App. 1997) (noting prisoners may prosecute their actions in small claims court “by submitting the case to the court by documentary evidence”). Appellant’s App. at 25.
Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018 Page 3 of 7 all personal property permitted in adult male facilities. Id. at 51-52, 55-56. The
master list did not include musical instruments or musical accessories. Id.
[6] The small claims court issued its Findings and Order on December 13, 2017. In
ruling for the DOC and against Hoglund, the trial court found the property was
lawfully confiscated pursuant to the new DOC policy. It further found that
Hoglund
has lost the use of his guitar while incarcerated, but he still owns the property that was confiscated. He has been given the opportunity to send the guitar and the other items that were removed from him to a location outside the facility or to donate the items.
Id. at 61. This appeal ensued.
Discussion and Decision [7] Hoglund contends that the small claims court erred in denying and dismissing
his claim. On appeal, we will not set aside the entry of judgment after a small
claims bench trial unless it is clearly erroneous. Ind. Small Claims Rule 11(A);
Ind. Trial Rule 52(A). “However, where the judgment ‘turns solely on
documentary evidence,’ we review the judgment ‘de novo,’ as we do with
summary judgment and other cases involving paper records.” Yisrayl v. Reed, 98 N.E.3d 644, 646 (Ind. Ct. App. 2018) (quoting Eagle Aircraft, Inc. v. Trojnar, 983 N.E.2d 648, 657 (Ind. Ct. App. 2013)), trans. pending. We consider only those
materials designated to the trial court. Id.
Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018 Page 4 of 7 [8] Hoglund’s case is an action for replevin.3 See Ind. Code § 32-35-2-1. To
recover, Hoglund must prove that he had legal title or a right to possession of
the confiscated property and that the property was “wrongfully taken or
unlawfully detained.” Id. The parties do not dispute that Hogland was the
lawful owner of the confiscated guitar and guitar accessories. However,
Hoglund’s claim fails on the other factors; i.e., he failed to show that the
property was wrongfully taken or unlawfully detained.
[9] Our legislature has conferred upon the DOC authority to determine what
property an offender may possess. I.C. § 11-11-2-2.4 This court recently
addressed that statutory authority in Yisrayl v. Reed:
When a prison notifies an offender of what items (s)he may possess, all other property that is not contraband becomes “prohibited property.” [I.C. § 11-11-2-2]. “Contraband” is “property the possession of which is in violation of an Indiana or federal statute”; and “[p]rohibited property” is “property other
3 Although Hoglund refers for the first time in his reply brief to a “contract,” an “agreement” and “special permission” from the Superintendent’s designee, he provides no citation to the record to support the existence of any such contract or agreement nor does he develop any argument under a contract theory; therefore, he waives any such claim. Ind. Appellate Rule 46(A)(8); see also Foster v. Adoption of Federspiel, 560 N.E.2d 691, 692 (Ind. Ct. App. 1990) (noting that pro se litigants are held to the same established rules of procedure that trained legal counsel are bound to follow). Moreover, claims may not be raised for the first time in a reply brief. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005) (citation omitted) (“The law is well settled that grounds for error may only be framed in an appellant’s initial brief and if addressed for the first time in the reply brief, they are waived.”). 4 I.C. § 11-11-2-2 states:
The department shall determine what type of property other than contraband a confined person may not possess and shall inform him of that classification. In carrying out this section, the department may inform a confined person of the type or items of property he is permitted to possess, in which event all other property not contraband is prohibited property. Property that a confined person is otherwise permitted to possess may become prohibited property due to the means by which it is possessed or used.
Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018 Page 5 of 7 than contraband that the [DOC] does not permit a confined person to possess ....” Id. “The [DOC] may conduct reasonable searches of its facilities and persons confined in them and may seize contraband or prohibited property.” I.C. § 11–11–2–3(a). When it seizes an offender’s property, the DOC “shall give ... written notice of the seizure” including the date of seizure, identity of the seizing party, grounds for seizure, and the procedure for challenging the seizure. I.C. § 11–11–2–4. 98 N.E.3d at 646-47.
[10] Here, the DOC determined in DOC Operation Procedures for Policy No. 02-
01-101 that, effective April 1, 2016, musical instruments were prohibited
property; i.e., they were no longer contained on the DOC master list of items a
prisoner may possess. Appellant’s App. at 55-56. Thus, effective Apri1 1,
2016, Hoglund’s guitar and accessories became “prohibited property” that the
DOC could lawfully confiscate. I.C. § 11-11-2-2. The DOC informed Hoglund
of this policy, lawfully took his guitar pursuant to that policy, and provided him
with notice of what property was seized, why it was seized, and the procedure
for challenging that seizure. Appellant’s App. at 51. Hoglund has failed to
show that the DOC wrongfully took or unlawfully detained his confiscated
property.5 I.C. § 32-35-2-1. Therefore, the trial court did not err in denying his
claim for replevin.
5 Several times in his initial and reply briefs, Hoglund refers vaguely to his rights “under the Constitution.” Appellant’s Br. at 7, 8; Appellant’s Reply Br. at 6. To the extent Hoglund raises a constitutional challenge, he has waived it by failing to cite the source of his alleged constitutional right, and by failing to provide cogent argument—or any analysis at all—regarding the alleged constitutional right. App. R. 46(A)(8).
Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018 Page 6 of 7 [11] Affirmed.
Crone, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018 Page 7 of 7 | 07-17-2018 | [
"MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 17 2018, 8:39 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court estoppel, or the law of the case. APPELLANT PRO SE ATTORNEYS FOR APPELLEE Keith A. Hoglund Curtis T. Hill, Jr. Michigan City, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Keith A. Hoglund, July 17, 2018 Appellant-Plaintiff, Court of Appeals Case No. 17A-SC-3051 v. Appeal from the LaPorte Superior Court Robert E. Carter, Jr., The Honorable Nancy L. Commissioner of the Indiana Gettinger, Magistrate Department of Correction, Trial Court Cause No.",
"Appellee-Defendant. 46D04-1707-SC-1424 Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018 Page 1 of 7 Case Summary [1] Following a trial by affidavit, Keith A. Hoglund (“Hoglund”) appeals, pro se, the small claims court order denying his claim in replevin. The sole issue on appeal is whether the small claims court clearly erred. [2] We affirm. Facts and Procedural History [3] Hogland is serving a fifty-year sentence in the Indiana Department of Correction (“DOC”). On May 1, 2017, he was housed at the Indiana State Prison. On that date, employees of the DOC confiscated a guitar, a guitar case, a tuner, guitar strings, a capo, cleaner for the guitar, buffing rags, and guitar picks from Hoglund’s cell. The DOC gave Hoglund State Form 36030, entitled “Notice of Confiscated Property,” which noted the items confiscated, the reason for confiscation, and the right to appeal through the “Offender Grievance Process.” Appellant’s App. at 51. The items were confiscated pursuant to a 2016 change in DOC Operation Procedures for Policy No.",
"02-01- 101. This policy change, effective April 1, 2016, stated in relevant part: MUSICAL INSTRUMENTS: Note: Musical instruments will no longer be approved to be kept within individual cells. If you wish to donate your instrument to Recreation for use within Recreations Musical Program or within the Chapel for use in the Choir, those may be possibilities, if space is available. Otherwise, all musical instruments will be Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018 Page 2 of 7 removed from ISP. Personal instruments will not stored [sic] in any location at ISP/ISO.",
"Id. at 53. The new policy allowed an inmate whose instrument was confiscated to either send the instrument to a person outside of the prison or to donate the instrument to the DOC for internal use. [4] In an undated notice,1 the DOC informed Hoglund that, as of June 1, 2017, his confiscated property had been in storage at the DOC for thirty days, and that he had thirty days left to send out or mail his property to someone else or the property would be destroyed. Id. at 52. On July 10, 2017, Hoglund filed his pro se notice of small claim against the Commissioner of the DOC, contending the DOC wrongly confiscated his personal property and seeking a return of the property or a reimbursement for its monetary value. Id. at 9, 10. [5] In an order dated August 30, the small claims court set the matter for trial by affidavit.2 The parties each filed affidavits with the court. Hoglund’s affidavit referred to “Claimant’s Designation of Evidence (Attachment[s 1-5]),” but no such document or attachments are contained in the record.",
"Id. at 37-41. The DOC affidavit was executed by Pam James, a DOC tort claims investigator, and it included several exhibits, including the DOC “Master Property List” of 1 Hoglund stated in his “Affidavit of Events in Support of Evidence” (filed in the small claims court), that he received the undated notice on June 7, 2017. Appellant’s App. at 38. 2 In support of allowing prosecution of the trial by documentary evidence, the court cited Hill v. Duckworth, 679 N.E.2d 938, 940 n.1 (Ind. Ct. App.",
"1997) (noting prisoners may prosecute their actions in small claims court “by submitting the case to the court by documentary evidence”). Appellant’s App. at 25. Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018 Page 3 of 7 all personal property permitted in adult male facilities. Id. at 51-52, 55-56. The master list did not include musical instruments or musical accessories. Id. [6] The small claims court issued its Findings and Order on December 13, 2017. In ruling for the DOC and against Hoglund, the trial court found the property was lawfully confiscated pursuant to the new DOC policy.",
"It further found that Hoglund has lost the use of his guitar while incarcerated, but he still owns the property that was confiscated. He has been given the opportunity to send the guitar and the other items that were removed from him to a location outside the facility or to donate the items. Id. at 61. This appeal ensued. Discussion and Decision [7] Hoglund contends that the small claims court erred in denying and dismissing his claim. On appeal, we will not set aside the entry of judgment after a small claims bench trial unless it is clearly erroneous.",
"Ind. Small Claims Rule 11(A); Ind. Trial Rule 52(A). “However, where the judgment ‘turns solely on documentary evidence,’ we review the judgment ‘de novo,’ as we do with summary judgment and other cases involving paper records.” Yisrayl v. Reed, 98 N.E.3d 644, 646 (Ind. Ct. App. 2018) (quoting Eagle Aircraft, Inc. v. Trojnar, 983 N.E.2d 648, 657 (Ind. Ct. App. 2013)), trans. pending. We consider only those materials designated to the trial court. Id. Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018 Page 4 of 7 [8] Hoglund’s case is an action for replevin.3 See Ind. Code § 32-35-2-1. To recover, Hoglund must prove that he had legal title or a right to possession of the confiscated property and that the property was “wrongfully taken or unlawfully detained.” Id. The parties do not dispute that Hogland was the lawful owner of the confiscated guitar and guitar accessories. However, Hoglund’s claim fails on the other factors; i.e., he failed to show that the property was wrongfully taken or unlawfully detained. [9] Our legislature has conferred upon the DOC authority to determine what property an offender may possess.",
"I.C. § 11-11-2-2.4 This court recently addressed that statutory authority in Yisrayl v. Reed: When a prison notifies an offender of what items (s)he may possess, all other property that is not contraband becomes “prohibited property.” [I.C. § 11-11-2-2]. “Contraband” is “property the possession of which is in violation of an Indiana or federal statute”; and “[p]rohibited property” is “property other 3 Although Hoglund refers for the first time in his reply brief to a “contract,” an “agreement” and “special permission” from the Superintendent’s designee, he provides no citation to the record to support the existence of any such contract or agreement nor does he develop any argument under a contract theory; therefore, he waives any such claim. Ind.",
"Appellate Rule 46(A)(8); see also Foster v. Adoption of Federspiel, 560 N.E.2d 691, 692 (Ind. Ct. App. 1990) (noting that pro se litigants are held to the same established rules of procedure that trained legal counsel are bound to follow). Moreover, claims may not be raised for the first time in a reply brief. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005) (citation omitted) (“The law is well settled that grounds for error may only be framed in an appellant’s initial brief and if addressed for the first time in the reply brief, they are waived.”). 4 I.C. § 11-11-2-2 states: The department shall determine what type of property other than contraband a confined person may not possess and shall inform him of that classification. In carrying out this section, the department may inform a confined person of the type or items of property he is permitted to possess, in which event all other property not contraband is prohibited property.",
"Property that a confined person is otherwise permitted to possess may become prohibited property due to the means by which it is possessed or used. Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018 Page 5 of 7 than contraband that the [DOC] does not permit a confined person to possess ....” Id. “The [DOC] may conduct reasonable searches of its facilities and persons confined in them and may seize contraband or prohibited property.” I.C. § 11–11–2–3(a). When it seizes an offender’s property, the DOC “shall give ... written notice of the seizure” including the date of seizure, identity of the seizing party, grounds for seizure, and the procedure for challenging the seizure. I.C.",
"§ 11–11–2–4. 98 N.E.3d at 646-47. [10] Here, the DOC determined in DOC Operation Procedures for Policy No. 02- 01-101 that, effective April 1, 2016, musical instruments were prohibited property; i.e., they were no longer contained on the DOC master list of items a prisoner may possess. Appellant’s App. at 55-56. Thus, effective Apri1 1, 2016, Hoglund’s guitar and accessories became “prohibited property” that the DOC could lawfully confiscate. I.C. § 11-11-2-2. The DOC informed Hoglund of this policy, lawfully took his guitar pursuant to that policy, and provided him with notice of what property was seized, why it was seized, and the procedure for challenging that seizure.",
"Appellant’s App. at 51. Hoglund has failed to show that the DOC wrongfully took or unlawfully detained his confiscated property.5 I.C. § 32-35-2-1. Therefore, the trial court did not err in denying his claim for replevin. 5 Several times in his initial and reply briefs, Hoglund refers vaguely to his rights “under the Constitution.” Appellant’s Br. at 7, 8; Appellant’s Reply Br. at 6. To the extent Hoglund raises a constitutional challenge, he has waived it by failing to cite the source of his alleged constitutional right, and by failing to provide cogent argument—or any analysis at all—regarding the alleged constitutional right. App. R. 46(A)(8). Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018 Page 6 of 7 [11] Affirmed. Crone, J., and Brown, J., concur. Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018 Page 7 of 7"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4294752/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Opinion by Mr. Justice Day. This writ of error is directed to a quiet title decree of the district court of Pitkin County relative to Lot Q, *60Block 30, Township and City of Aspen, Colorado. The court declared that the plaintiff in error Koch, plaintiff in the trial court, had no right, title or interest in said tract and quieted title in the defendants in error Clark W. Ilgen and Eileen L. Ilgen. The court found: (a) That the Ilgens and their predecessors in title had been in actual and complete possession of all of said property at all times from the latter part of 1938; (b) that they are now in such possession, and have been under claim and color of title made in good faith for a period of more than seven successive years immediately prior to the commencement of the action; (c) have paid all of the taxes legally assessed during said time, all in compliance with and under the provisions of C.R.S. ’53, 118-7-8. Plaintiff in error admits color and claim of title, payment of the legally assessed taxes for the required seven consecutive years, and urges only one ground of error, namely: the finding of the court that the Ilgens and their predecessors in title had been in actual and complete possession of the property is not supported by the evidence. On the latter point we find the testimony to be: In 1938 one John Sievers, the grandfather of defendant in error Eileen Ilgen, obtained title to one half of Lot O and all of Lot P abutting and lying to the west of Lot Q, the subject property. Soon after he erected a wire mesh fence on the east side of lot Q in place of a barbwire fence, planted a lawn and lilac bush on the lot. In 1942 Sievers obtained the outstanding tax certificates on Lot Q, but never did obtain a treasurer’s deed for said tract. John Sievers in 1952 quit claimed all of the property, including lot Q, to Henry Sievers, who in 1953 conveyed the same to the Ilgens. The evidence discloses that since the wire mesh fence was installed that, too, was replaced and a “snow” fence erected on the east boundary of lot Q. The maintenance of the lawn, bush and fences were sufficient acts and evidence of possession as to ful*61fill the requirements of the statute. We hold that the court was correct. Under familiar principles of law, we will not disturb the findings. The judgment is affirmed. Mr. Justice Moore and Mr. Justice Pringle concur. | 09-07-2022 | [
"Opinion by Mr. Justice Day. This writ of error is directed to a quiet title decree of the district court of Pitkin County relative to Lot Q, *60Block 30, Township and City of Aspen, Colorado. The court declared that the plaintiff in error Koch, plaintiff in the trial court, had no right, title or interest in said tract and quieted title in the defendants in error Clark W. Ilgen and Eileen L. Ilgen. The court found: (a) That the Ilgens and their predecessors in title had been in actual and complete possession of all of said property at all times from the latter part of 1938; (b) that they are now in such possession, and have been under claim and color of title made in good faith for a period of more than seven successive years immediately prior to the commencement of the action; (c) have paid all of the taxes legally assessed during said time, all in compliance with and under the provisions of C.R.S. ’53, 118-7-8.",
"Plaintiff in error admits color and claim of title, payment of the legally assessed taxes for the required seven consecutive years, and urges only one ground of error, namely: the finding of the court that the Ilgens and their predecessors in title had been in actual and complete possession of the property is not supported by the evidence. On the latter point we find the testimony to be: In 1938 one John Sievers, the grandfather of defendant in error Eileen Ilgen, obtained title to one half of Lot O and all of Lot P abutting and lying to the west of Lot Q, the subject property. Soon after he erected a wire mesh fence on the east side of lot Q in place of a barbwire fence, planted a lawn and lilac bush on the lot. In 1942 Sievers obtained the outstanding tax certificates on Lot Q, but never did obtain a treasurer’s deed for said tract.",
"John Sievers in 1952 quit claimed all of the property, including lot Q, to Henry Sievers, who in 1953 conveyed the same to the Ilgens. The evidence discloses that since the wire mesh fence was installed that, too, was replaced and a “snow” fence erected on the east boundary of lot Q. The maintenance of the lawn, bush and fences were sufficient acts and evidence of possession as to ful*61fill the requirements of the statute. We hold that the court was correct. Under familiar principles of law, we will not disturb the findings. The judgment is affirmed. Mr. Justice Moore and Mr. Justice Pringle concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7829407/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: [NY] Is it illegal to invent a new person and act like it on the internet? I know it's illegal to pretend to be someone else, but what if the person doesn't exist? Question:[removed] Answer #1: Why do you think that it's illegal to pretend to be someone else?
Sincerely,
Fenderick Quincy Xavier Pottersquash, IVAnswer #2: No.
-Fenderick Quincy Xavier Pottersquash, V | 07-11-2017 | [
"Title: [NY] Is it illegal to invent a new person and act like it on the internet? I know it's illegal to pretend to be someone else, but what if the person doesn't exist? Question:[removed] Answer #1: Why do you think that it's illegal to pretend to be someone else? Sincerely, Fenderick Quincy Xavier Pottersquash, IVAnswer #2: No. -Fenderick Quincy Xavier Pottersquash, V"
]
| https://www.reddit.com/r/legaladvice/comments/6mo25o/ny_is_it_illegal_to_invent_a_new_person_and_act/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.28
CONFIDENTIAL AGREEMENT AND GENERAL RELEASE
Gerber Scientific, Inc. (“Gerber”) and John R. Hancock (“Employee”), Employee’s heirs, executors, administrators, successors, and assigns (collectively referred to throughout this Agreement as “Employee”), agree that:
1. Last Day of Employment. Employee’s last day of employment with Gerber is April 30, 2011.
2. Consideration. In consideration for signing this Agreement and General Release, the expiration of the seven (7) day revocation period without Employee’s revocation of the Agreement and General Release, Employee’s execution of the Reaffirmation Provision attached hereto as Exhibit A on May 1, 2011, and Employee’s compliance with the terms of this Agreement and General Release and Reaffirmation Provision, Gerber agrees:
a. to pay to Employee salary continuation at Employee’s base rate of pay, less lawful deductions, in accordance with Gerber’s regular payroll practices, for 12 months (the “Salary Continuation Period”) to commence after April 30, 2011. This consideration is subject to the limitations stated in Section (C)(4) and Section (D) of the Severance Policy for Senior Officers of Gerber Scientific, Inc., which is incorporated by reference and attached as Exhibit B; and
b. to pay to Employee a pro rata portion of Employee’s annual incentive bonus (pro rated through April 30, 2011) under Gerber’s Annual Incentive Bonus Plan (“Plan”), less lawful deductions. Employee agrees that the pro rata portion may be a percentage of 0 depending on whether a bonus is earned under the Plan. Gerber will pay this pro rated annual incentive bonus when payments are made to the other employees under the Plan, which is currently to be anticipated to be in July;
c. if Employee properly and timely elects to continue medical and dental coverage under the Gerber Scientific, Inc. Employee Health & Dental Plan in accordance with the continuation requirements of COBRA, Employee shall, during the Salary Continuation Period, continue to receive from Gerber, at Gerber’s cost but subject to any applicable employee contributions, the health (medical and dental) insurance coverage under the health insurance plan provided to Employee immediately prior to the Termination Date and ending on March 10, 2012. During this period, Employee will be responsible for paying Employee’s share of premiums as determined by the Company’s regular employee benefit practices as if Employee had continued his employment with Gerber. Thereafter, Employee shall be entitled to elect to continue such COBRA coverage for the remainder of the COBRA period, at Employee’s own expense; and
d. Gerber shall, for a period of thirty (30) days following the commencement of the Salary Continuation Period, continue to provide Employee with the same life insurance benefits provided to Employee immediately prior to the Termination Date, provided that such benefits shall cease at the end of such thirty day period; and
e. Gerber agrees to accelerate the vesting of Employee’s 72,246 unvested shares which were granted under the 2006 Omnibus Incentive Plan.
3. No Consideration Absent Execution of this Agreement. Employee understands and agrees that Employee would not receive the monies and/or benefits specified in paragraph “2” above, except for Employee’s execution of this Agreement and General Release, the expiration of the seven (7) day revocation period without Employee’s revocation of the Agreement and General Release, Employee’s execution of the Reaffirmation Provision attached hereto as Exhibit A on May 1, 2011, Employee’s compliance with the terms of this Agreement and General Release and Reaffirmation Provision, and the fulfillment of the promises contained herein.
4. General Release of Claims. Employee knowingly and voluntarily releases and forever discharges Gerber, its parent corporation, affiliates, subsidiaries, divisions, predecessors, insurers, successors and assigns, and their current and former employees, attorneys, officers, directors and agents thereof, both individually and in their business capacities, and their employee benefit plans and programs and their administrators and fiduciaries (collectively referred to throughout the remainder of this Agreement as “Releasees”), of and from any and all claims, known and unknown, asserted or unasserted, which Employee has or may have against Releasees as of the date of execution of this Agreement and General Release, including, but not limited to, any alleged violation of:
§ Title VII of the Civil Rights Act of 1964;
§ The Civil Rights Act of 1991;
§ Sections 1981 through 1988 of Title 42 of the United States Code;
§ The Employee Retirement Income Security Act of 1974 (“ERISA”) (except for any vested benefits under any tax qualified benefit plan);
§ The Immigration Reform and Control Act;
§ The Americans with Disabilities Act of 1990;
§ The Age Discrimination in Employment Act of 1967 (“ADEA”);
§ The Worker Adjustment and Retraining Notification Act;
§ The Occupational Safety and Health Act, as amended;
§ The Sarbanes-Oxley Act of 2002;
§ The Fair Credit Reporting Act;
§ The Family and Medical Leave Act;
§ The Equal Pay Act;
§ The National Labor Relations Act, to the extent permitted by law;
§ The Older Workers Benefit Protection Act;
§ The Consolidated Omnibus Budget Reconciliation Act (“COBRA”), to the extent permitted by law;
§ The Connecticut Fair Employment Practices Act – Conn. Gen. Stat. § 46a-51 et seq.;
§ The Connecticut Wage Laws – Conn. Gen. Stat. § 31-58 et seq.;
§ The Connecticut Statutory Provision Regarding Retaliation/Discrimination for Filing a Workers’ Compensation Claim – Conn. Gen. Stat. § 31-290a;
§ The Connecticut Equal Pay Law – Conn. Gen. Stat. § 31-58(e) et seq., §§ 31-75 and 31-76;
§ The Connecticut Family and Medical Leave Law – Conn. Gen. Stat. § 31-51kk et seq.;
§ The Connecticut Drug Testing Law – Conn. Gen. Stat. § 31-51t et seq.;
§ The Connecticut Whistleblower Law – Conn. Gen. Stat. § 31-51m(a) et seq.;
§ The Connecticut Free Speech Law – Conn. Gen. Stat. § 31-51q et seq.;
§ The Connecticut Age Discrimination and Employee Benefits Law – Conn. Gen. Stat. § 38a-543;
§ The Connecticut Reproductive Hazards Law – Conn. Gen. Stat. § 31-40g et seq.;
§ The Connecticut AIDS Testing and Confidentiality Law - Conn. Gen. Stat. § 19a-581 et seq.;
§ The Connecticut Electronic Monitoring of Employees Law – Conn. Gen. Stat. § 31-48b and d;
§ The Connecticut Statutory Provision Regarding Protection of Social Security Numbers and Personal Information – Conn. Gen. Stat. § 42-470 et seq.;
§ The Connecticut Statutory Provision Regarding Concerning Consumer Privacy and Identity Theft – Public Act No. 09-239;
§ The Connecticut OSHA, as amended;
§ any other federal, state or local law, rule, regulation, or ordinance;
§ any public policy, contract, tort, or common law; or
§ any basis for recovering costs, fees, or other expenses including attorneys’ fees incurred in these matters.
If any claim is not subject to release, to the extent permitted by law, Employee waives any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified class, collective or multi-party action or proceeding based on such a claim in which Gerber or any other Releasee identified in this Confidential Agreement is a party.
5. Cooperation. Beginning on the date this Agreement and General Release is presented to Employee and through April 30, 2011, Employee agrees to perform his job duties in good faith. Employee understands that his cooperation through April 30, 2011 is a material requirement of this Agreement and General Release and that should he fail in good faith to perform his job duties in good faith or should his employment terminate for cause (“cause” is defined as (a) the willful and continued failure by Employee substantially to perform Employee’s duties with Gerber (other than such failure resulting from Employee’s incapacity due to physical or mental illness) or (b) the willful engaging by Employee in conduct that is demonstrably and materially injurious to Gerber, monetarily or otherwise, as determined in Gerber’s sole discretion) before April 30, 2011, he will not be eligible to receive the consideration described in Section 2 above.
6. Nonsolicitation. Employee acknowledges that due to the nature of work that he is performing and has performed for Gerber, he had or has access to highly confidential and proprietary information regarding Gerber’s business and its clients. Employee further acknowledges that Gerber has spent considerable money and business resources in developing its business, business contacts and clients. Employee acknowledges, therefore, that Gerber has a legitimate interest in protecting that information from disclosure to competitors, to the general public, or in some cases, to clients and/or former clients.
Based in part on the acknowledgements set forth in the previous paragraph, and in consideration of the compensation and benefits Gerber is providing to Employee as set forth in this Agreement, Employee agrees that during the Salary Continuation Period, Employee will not, without the prior written consent of Gerber or its designee, directly or indirectly: (a) solicit business from any person who has directly engaged the services of Gerber and with whom Employee has had substantive contact or been directly involved in the provision of services at any time during the 12 months prior to the last date of employment, where such solicitation would cause that person to cease doing business with Gerber or its successor or to reduce the amount of business that the person would normally do with Gerber or its successor; (b) attempt to persuade any person who has dealt with Gerber at any time during the 12 months prior to Employee’s last date of employment to cease doing business with Gerber or reduce the business which the person would normally do with Gerber by discrediting or misrepresenting Gerber’s business relationship with, or capacity to provide services to, that person; (c) employ any person who has been or is a director, manager, employee of or consultant to Gerber who is or may be likely to be in possession of any confidential information relating to the business of Gerber or its clients. In the event that any provision of this Agreement is held to be void or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall nevertheless be binding upon the parties with the same effect as though the void or unenforceable part had been deleted. The non-enforceability of any non-solicitation restraint set forth in this Paragraph does not affect the enforceability of the other non-solicitation restraints. 7. Non-Disclosure of Confidential Information. Employee acknowledges that during the course of employment with Gerber, Employee had or has access to, and became aware of or developed varying forms of Confidential and Proprietary Information. Employee understands that such information has been developed by Gerber at substantial cost and expense. Employee declares and acknowledges that such information is a valuable, important and a unique asset to Gerber in the conduct of its business, and that Gerber would be irreparably harmed and damaged by the disclosure, dissemination or publication of this Information.
As used herein, “Confidential and Proprietary Information” means information concerning the business, business practices, pricing, operations, assets, trade secrets, know-how, customers, clients, or other information of a similar nature or any other information relating to Gerber that Employee knows from the circumstances should be treated as confidential. Employee agrees that Employee will not, except as required by law, directly or indirectly, disclose, remove, publish, transmit, disseminate, copy, reproduce, otherwise deliver, or make available any Confidential and Proprietary Information to any person or entity not associated with Gerber or expressly authorized by virtue of their relationship with Gerber to receive such information. The obligations contained herein shall not apply to such Information that is, or later becomes, public knowledge, other than by way of a breach of this agreement. 8. Acknowledgments and Affirmations. Employee affirms that Employee has not filed, caused to be filed, or presently is a party to any claim against Gerber. Employee also affirms that Employee has been paid and/or has received all compensation, wages, bonuses, commissions, and/or benefits to which Employee may be entitled. Employee affirms that Employee has been granted any leave to which Employee was entitled under the Family and Medical Leave Act or related state or local leave or disability accommodation laws. Employee further affirms that Employee has no known workplace injuries or occupational diseases.
Employee also affirms that he has not divulged any proprietary or confidential information of Gerber and will continue to maintain the confidentiality of such information consistent with Gerber’s policies and Employee’s agreement(s) with Gerber and/or common law.
Employee further affirms that he has not been retaliated against for reporting any allegations of wrongdoing by Gerber or its officers, including any allegations of corporate fraud. Both Parties acknowledge that this Agreement does not limit either party’s right, where applicable, to file or participate in an investigative proceeding of any federal, state or local governmental agency. To the extent permitted by law, Employee agrees that if such an administrative claim is made, he shall not be entitled to recover any individual monetary relief or other individual remedies.
Employee affirms that all of Gerber’s decisions regarding his pay and benefits through the date of his execution of this Agreement were not discriminatory based on age, disability, race, color, sex, religion, national origin or any other classification protected by law.
9. Confidentiality. Employee agrees to keep the substance of this Agreement and General Release confidential and not disclose it to anyone, except to his spouse, tax advisor, and/or an attorney with whom Employee chooses to consult regarding his consideration of this Agreement and General Release, or as otherwise permitted by law. Should Employee make a permissible disclosure to his spouse, tax advisor, and or attorney, he agrees that he has or will instruct his spouse, tax, advisor, and or attorney to keep the underlying facts leading up to or the existence or substance of this Agreement and General Release confidential.
10. Nondisparagement. Employee represents that he has not and agrees that he will not in any way disparage Gerber including, but not limited to, its current and former owners, officers, directors and employees, or make or solicit any comments, statements, or the like to the media or to others that may be considered to be derogatory or detrimental to the good name or business reputation of Gerber. In the event that Employee violates this provision, he acknowledges that Gerber has the right to institute an action against him for any damages plus the reimbursement of attorneys’ fees and costs incurred in connection with the enforcement of this provision. It is understood that the rest of this Confidential Agreement and General Release would, nevertheless, remain in full force and effect.
11. Covenant Not To Sue. Employee agrees not to sue any Releasee in any state or federal court in the United States or elsewhere or in any administrative agency which has authority to award damages, based on any claim he released or representation he made in Section 4 above. Employee furthers agree that he will not permit such a claim to be filed on his behalf seeking monetary or other relief against any Releasee and he will not become a member of any class or group seeking monetary or other relief against Releasee in any matter relating to such a claim.
12. Governing Law and Interpretation. This Agreement and General Release shall be governed and conformed in accordance with the laws of the state of Connecticut without regard to its conflict of laws provision. In the event of a breach of any provision of this Agreement and General Release, either party may institute an action specifically to enforce any term or terms of this Agreement and General Release and/or to seek any damages for breach. Should any provision of this Agreement and General Release be declared illegal or unenforceable by any court of competent jurisdiction and cannot be modified to be enforceable, excluding the general release language, such provision shall immediately become null and void, leaving the remainder of this Agreement and General Release in full force and effect.
13. Nonadmission of Wrongdoing. The Parties agree that neither this Agreement and General Release nor the furnishing of the consideration for this Agreement and General Release shall be deemed or construed at any time for any purpose as an admission by Releasees of wrongdoing or evidence of any liability or unlawful conduct of any kind.
14. Amendment. This Agreement and General Release may not be modified, altered or changed except in writing and signed by both Parties wherein specific reference is made to this Agreement and General Release.
15. Entire Agreement. This Agreement and General Release sets forth the entire agreement between the Parties hereto, and fully supersedes any prior agreements or understandings between the Parties other than the Reaffirmation Provision which is attached as Exhibit A and the Severance Policy for Senior Officers of Gerber Scientific, Inc. which is attached as Exhibit B. Employee acknowledges that Employee has not relied on any representations, promises, or agreements of any kind made to Employee in connection with Employee’s decision to accept this Agreement and General Release, except for those set forth in this Agreement and General Release. EMPLOYEE IS ADVISED THAT EMPLOYEE HAS UP TO TWENTY-ONE (21) CALENDAR DAYS TO CONSIDER THIS AGREEMENT AND GENERAL RELEASE. EMPLOYEE ALSO IS ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO EMPLOYEE’S SIGNING OF THIS AGREEMENT AND GENERAL RELEASE.
EMPLOYEE MAY REVOKE THIS AGREEMENT AND GENERAL RELEASE FOR A PERIOD OF SEVEN (7) CALENDAR DAYS FOLLOWING THE DAY EMPLOYEE SIGNS THIS AGREEMENT AND GENERAL RELEASE. ANY REVOCATION WITHIN THIS PERIOD MUST BE SUBMITTED, IN WRITING, TO PATTI BURMAHL AND STATE, “I HEREBY REVOKE MY ACCEPTANCE OF OUR AGREEMENT AND GENERAL RELEASE.” THE REVOCATION MUST BE PERSONALLY DELIVERED TO PATTI BURMAHL OR HER DESIGNEE, OR MAILED TO PATTI BURMAHL, GERBER SCIENTIFIC, INC., 24 INDUSTRIAL PARK ROAD WEST, TOLLAND CT 06084 AND POSTMARKED WITHIN SEVEN (7) CALENDAR DAYS AFTER EMPLOYEE SIGNS THIS AGREEMENT AND GENERAL RELEASE. EMPLOYEE AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT AND GENERAL RELEASE, DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL UP TO TWENTY-ONE (21) CALENDAR DAY CONSIDERATION PERIOD.
EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT AND GENERAL RELEASE INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS EMPLOYEE HAS OR MIGHT HAVE AGAINST RELEASEES.
The Parties knowingly and voluntarily sign this Agreement and General Release as of the date(s) set forth below: Gerber Scientific, Inc. By: /s/ John R. Hancock By: /s/ Patti Burmahl John R. Hancock Patti Burmahl Sr. Vice President, Global Human Resources Date: March 28, 2011 Date: March 28, 2011 | [
"Exhibit 10.28 CONFIDENTIAL AGREEMENT AND GENERAL RELEASE Gerber Scientific, Inc. (“Gerber”) and John R. Hancock (“Employee”), Employee’s heirs, executors, administrators, successors, and assigns (collectively referred to throughout this Agreement as “Employee”), agree that: 1. Last Day of Employment. Employee’s last day of employment with Gerber is April 30, 2011. 2. Consideration. In consideration for signing this Agreement and General Release, the expiration of the seven (7) day revocation period without Employee’s revocation of the Agreement and General Release, Employee’s execution of the Reaffirmation Provision attached hereto as Exhibit A on May 1, 2011, and Employee’s compliance with the terms of this Agreement and General Release and Reaffirmation Provision, Gerber agrees: a. to pay to Employee salary continuation at Employee’s base rate of pay, less lawful deductions, in accordance with Gerber’s regular payroll practices, for 12 months (the “Salary Continuation Period”) to commence after April 30, 2011.",
"This consideration is subject to the limitations stated in Section (C)(4) and Section (D) of the Severance Policy for Senior Officers of Gerber Scientific, Inc., which is incorporated by reference and attached as Exhibit B; and b. to pay to Employee a pro rata portion of Employee’s annual incentive bonus (pro rated through April 30, 2011) under Gerber’s Annual Incentive Bonus Plan (“Plan”), less lawful deductions. Employee agrees that the pro rata portion may be a percentage of 0 depending on whether a bonus is earned under the Plan. Gerber will pay this pro rated annual incentive bonus when payments are made to the other employees under the Plan, which is currently to be anticipated to be in July; c. if Employee properly and timely elects to continue medical and dental coverage under the Gerber Scientific, Inc. Employee Health & Dental Plan in accordance with the continuation requirements of COBRA, Employee shall, during the Salary Continuation Period, continue to receive from Gerber, at Gerber’s cost but subject to any applicable employee contributions, the health (medical and dental) insurance coverage under the health insurance plan provided to Employee immediately prior to the Termination Date and ending on March 10, 2012.",
"During this period, Employee will be responsible for paying Employee’s share of premiums as determined by the Company’s regular employee benefit practices as if Employee had continued his employment with Gerber. Thereafter, Employee shall be entitled to elect to continue such COBRA coverage for the remainder of the COBRA period, at Employee’s own expense; and d. Gerber shall, for a period of thirty (30) days following the commencement of the Salary Continuation Period, continue to provide Employee with the same life insurance benefits provided to Employee immediately prior to the Termination Date, provided that such benefits shall cease at the end of such thirty day period; and e. Gerber agrees to accelerate the vesting of Employee’s 72,246 unvested shares which were granted under the 2006 Omnibus Incentive Plan. 3. No Consideration Absent Execution of this Agreement. Employee understands and agrees that Employee would not receive the monies and/or benefits specified in paragraph “2” above, except for Employee’s execution of this Agreement and General Release, the expiration of the seven (7) day revocation period without Employee’s revocation of the Agreement and General Release, Employee’s execution of the Reaffirmation Provision attached hereto as Exhibit A on May 1, 2011, Employee’s compliance with the terms of this Agreement and General Release and Reaffirmation Provision, and the fulfillment of the promises contained herein. 4.",
"General Release of Claims. Employee knowingly and voluntarily releases and forever discharges Gerber, its parent corporation, affiliates, subsidiaries, divisions, predecessors, insurers, successors and assigns, and their current and former employees, attorneys, officers, directors and agents thereof, both individually and in their business capacities, and their employee benefit plans and programs and their administrators and fiduciaries (collectively referred to throughout the remainder of this Agreement as “Releasees”), of and from any and all claims, known and unknown, asserted or unasserted, which Employee has or may have against Releasees as of the date of execution of this Agreement and General Release, including, but not limited to, any alleged violation of: § Title VII of the Civil Rights Act of 1964; § The Civil Rights Act of 1991; § Sections 1981 through 1988 of Title 42 of the United States Code; § The Employee Retirement Income Security Act of 1974 (“ERISA”) (except for any vested benefits under any tax qualified benefit plan); § The Immigration Reform and Control Act; § The Americans with Disabilities Act of 1990; § The Age Discrimination in Employment Act of 1967 (“ADEA”); § The Worker Adjustment and Retraining Notification Act; § The Occupational Safety and Health Act, as amended; § The Sarbanes-Oxley Act of 2002; § The Fair Credit Reporting Act; § The Family and Medical Leave Act; § The Equal Pay Act; § The National Labor Relations Act, to the extent permitted by law; § The Older Workers Benefit Protection Act; § The Consolidated Omnibus Budget Reconciliation Act (“COBRA”), to the extent permitted by law; § The Connecticut Fair Employment Practices Act – Conn. Gen. Stat.",
"§ 46a-51 et seq. ; § The Connecticut Wage Laws – Conn. Gen. Stat. § 31-58 et seq. ; § The Connecticut Statutory Provision Regarding Retaliation/Discrimination for Filing a Workers’ Compensation Claim – Conn. Gen. Stat. § 31-290a; § The Connecticut Equal Pay Law – Conn. Gen. Stat. § 31-58(e) et seq., §§ 31-75 and 31-76; § The Connecticut Family and Medical Leave Law – Conn. Gen. Stat. § 31-51kk et seq. ; § The Connecticut Drug Testing Law – Conn. Gen. Stat. § 31-51t et seq. ; § The Connecticut Whistleblower Law – Conn. Gen. Stat. § 31-51m(a) et seq. ; § The Connecticut Free Speech Law – Conn. Gen. Stat. § 31-51q et seq.",
"; § The Connecticut Age Discrimination and Employee Benefits Law – Conn. Gen. Stat. § 38a-543; § The Connecticut Reproductive Hazards Law – Conn. Gen. Stat. § 31-40g et seq. ; § The Connecticut AIDS Testing and Confidentiality Law - Conn. Gen. Stat. § 19a-581 et seq. ; § The Connecticut Electronic Monitoring of Employees Law – Conn. Gen. Stat. § 31-48b and d; § The Connecticut Statutory Provision Regarding Protection of Social Security Numbers and Personal Information – Conn. Gen. Stat. § 42-470 et seq. ; § The Connecticut Statutory Provision Regarding Concerning Consumer Privacy and Identity Theft – Public Act No. 09-239; § The Connecticut OSHA, as amended; § any other federal, state or local law, rule, regulation, or ordinance; § any public policy, contract, tort, or common law; or § any basis for recovering costs, fees, or other expenses including attorneys’ fees incurred in these matters.",
"If any claim is not subject to release, to the extent permitted by law, Employee waives any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified class, collective or multi-party action or proceeding based on such a claim in which Gerber or any other Releasee identified in this Confidential Agreement is a party. 5. Cooperation. Beginning on the date this Agreement and General Release is presented to Employee and through April 30, 2011, Employee agrees to perform his job duties in good faith. Employee understands that his cooperation through April 30, 2011 is a material requirement of this Agreement and General Release and that should he fail in good faith to perform his job duties in good faith or should his employment terminate for cause (“cause” is defined as (a) the willful and continued failure by Employee substantially to perform Employee’s duties with Gerber (other than such failure resulting from Employee’s incapacity due to physical or mental illness) or (b) the willful engaging by Employee in conduct that is demonstrably and materially injurious to Gerber, monetarily or otherwise, as determined in Gerber’s sole discretion) before April 30, 2011, he will not be eligible to receive the consideration described in Section 2 above.",
"6. Nonsolicitation. Employee acknowledges that due to the nature of work that he is performing and has performed for Gerber, he had or has access to highly confidential and proprietary information regarding Gerber’s business and its clients. Employee further acknowledges that Gerber has spent considerable money and business resources in developing its business, business contacts and clients. Employee acknowledges, therefore, that Gerber has a legitimate interest in protecting that information from disclosure to competitors, to the general public, or in some cases, to clients and/or former clients. Based in part on the acknowledgements set forth in the previous paragraph, and in consideration of the compensation and benefits Gerber is providing to Employee as set forth in this Agreement, Employee agrees that during the Salary Continuation Period, Employee will not, without the prior written consent of Gerber or its designee, directly or indirectly: (a) solicit business from any person who has directly engaged the services of Gerber and with whom Employee has had substantive contact or been directly involved in the provision of services at any time during the 12 months prior to the last date of employment, where such solicitation would cause that person to cease doing business with Gerber or its successor or to reduce the amount of business that the person would normally do with Gerber or its successor; (b) attempt to persuade any person who has dealt with Gerber at any time during the 12 months prior to Employee’s last date of employment to cease doing business with Gerber or reduce the business which the person would normally do with Gerber by discrediting or misrepresenting Gerber’s business relationship with, or capacity to provide services to, that person; (c) employ any person who has been or is a director, manager, employee of or consultant to Gerber who is or may be likely to be in possession of any confidential information relating to the business of Gerber or its clients.",
"In the event that any provision of this Agreement is held to be void or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall nevertheless be binding upon the parties with the same effect as though the void or unenforceable part had been deleted. The non-enforceability of any non-solicitation restraint set forth in this Paragraph does not affect the enforceability of the other non-solicitation restraints. 7. Non-Disclosure of Confidential Information. Employee acknowledges that during the course of employment with Gerber, Employee had or has access to, and became aware of or developed varying forms of Confidential and Proprietary Information. Employee understands that such information has been developed by Gerber at substantial cost and expense. Employee declares and acknowledges that such information is a valuable, important and a unique asset to Gerber in the conduct of its business, and that Gerber would be irreparably harmed and damaged by the disclosure, dissemination or publication of this Information. As used herein, “Confidential and Proprietary Information” means information concerning the business, business practices, pricing, operations, assets, trade secrets, know-how, customers, clients, or other information of a similar nature or any other information relating to Gerber that Employee knows from the circumstances should be treated as confidential. Employee agrees that Employee will not, except as required by law, directly or indirectly, disclose, remove, publish, transmit, disseminate, copy, reproduce, otherwise deliver, or make available any Confidential and Proprietary Information to any person or entity not associated with Gerber or expressly authorized by virtue of their relationship with Gerber to receive such information.",
"The obligations contained herein shall not apply to such Information that is, or later becomes, public knowledge, other than by way of a breach of this agreement. 8. Acknowledgments and Affirmations. Employee affirms that Employee has not filed, caused to be filed, or presently is a party to any claim against Gerber. Employee also affirms that Employee has been paid and/or has received all compensation, wages, bonuses, commissions, and/or benefits to which Employee may be entitled. Employee affirms that Employee has been granted any leave to which Employee was entitled under the Family and Medical Leave Act or related state or local leave or disability accommodation laws. Employee further affirms that Employee has no known workplace injuries or occupational diseases. Employee also affirms that he has not divulged any proprietary or confidential information of Gerber and will continue to maintain the confidentiality of such information consistent with Gerber’s policies and Employee’s agreement(s) with Gerber and/or common law.",
"Employee further affirms that he has not been retaliated against for reporting any allegations of wrongdoing by Gerber or its officers, including any allegations of corporate fraud. Both Parties acknowledge that this Agreement does not limit either party’s right, where applicable, to file or participate in an investigative proceeding of any federal, state or local governmental agency. To the extent permitted by law, Employee agrees that if such an administrative claim is made, he shall not be entitled to recover any individual monetary relief or other individual remedies. Employee affirms that all of Gerber’s decisions regarding his pay and benefits through the date of his execution of this Agreement were not discriminatory based on age, disability, race, color, sex, religion, national origin or any other classification protected by law. 9. Confidentiality. Employee agrees to keep the substance of this Agreement and General Release confidential and not disclose it to anyone, except to his spouse, tax advisor, and/or an attorney with whom Employee chooses to consult regarding his consideration of this Agreement and General Release, or as otherwise permitted by law.",
"Should Employee make a permissible disclosure to his spouse, tax advisor, and or attorney, he agrees that he has or will instruct his spouse, tax, advisor, and or attorney to keep the underlying facts leading up to or the existence or substance of this Agreement and General Release confidential. 10. Nondisparagement. Employee represents that he has not and agrees that he will not in any way disparage Gerber including, but not limited to, its current and former owners, officers, directors and employees, or make or solicit any comments, statements, or the like to the media or to others that may be considered to be derogatory or detrimental to the good name or business reputation of Gerber. In the event that Employee violates this provision, he acknowledges that Gerber has the right to institute an action against him for any damages plus the reimbursement of attorneys’ fees and costs incurred in connection with the enforcement of this provision. It is understood that the rest of this Confidential Agreement and General Release would, nevertheless, remain in full force and effect.",
"11. Covenant Not To Sue. Employee agrees not to sue any Releasee in any state or federal court in the United States or elsewhere or in any administrative agency which has authority to award damages, based on any claim he released or representation he made in Section 4 above. Employee furthers agree that he will not permit such a claim to be filed on his behalf seeking monetary or other relief against any Releasee and he will not become a member of any class or group seeking monetary or other relief against Releasee in any matter relating to such a claim. 12. Governing Law and Interpretation. This Agreement and General Release shall be governed and conformed in accordance with the laws of the state of Connecticut without regard to its conflict of laws provision. In the event of a breach of any provision of this Agreement and General Release, either party may institute an action specifically to enforce any term or terms of this Agreement and General Release and/or to seek any damages for breach.",
"Should any provision of this Agreement and General Release be declared illegal or unenforceable by any court of competent jurisdiction and cannot be modified to be enforceable, excluding the general release language, such provision shall immediately become null and void, leaving the remainder of this Agreement and General Release in full force and effect. 13. Nonadmission of Wrongdoing. The Parties agree that neither this Agreement and General Release nor the furnishing of the consideration for this Agreement and General Release shall be deemed or construed at any time for any purpose as an admission by Releasees of wrongdoing or evidence of any liability or unlawful conduct of any kind. 14. Amendment. This Agreement and General Release may not be modified, altered or changed except in writing and signed by both Parties wherein specific reference is made to this Agreement and General Release.",
"15. Entire Agreement. This Agreement and General Release sets forth the entire agreement between the Parties hereto, and fully supersedes any prior agreements or understandings between the Parties other than the Reaffirmation Provision which is attached as Exhibit A and the Severance Policy for Senior Officers of Gerber Scientific, Inc. which is attached as Exhibit B. Employee acknowledges that Employee has not relied on any representations, promises, or agreements of any kind made to Employee in connection with Employee’s decision to accept this Agreement and General Release, except for those set forth in this Agreement and General Release. EMPLOYEE IS ADVISED THAT EMPLOYEE HAS UP TO TWENTY-ONE (21) CALENDAR DAYS TO CONSIDER THIS AGREEMENT AND GENERAL RELEASE.",
"EMPLOYEE ALSO IS ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO EMPLOYEE’S SIGNING OF THIS AGREEMENT AND GENERAL RELEASE. EMPLOYEE MAY REVOKE THIS AGREEMENT AND GENERAL RELEASE FOR A PERIOD OF SEVEN (7) CALENDAR DAYS FOLLOWING THE DAY EMPLOYEE SIGNS THIS AGREEMENT AND GENERAL RELEASE. ANY REVOCATION WITHIN THIS PERIOD MUST BE SUBMITTED, IN WRITING, TO PATTI BURMAHL AND STATE, “I HEREBY REVOKE MY ACCEPTANCE OF OUR AGREEMENT AND GENERAL RELEASE.” THE REVOCATION MUST BE PERSONALLY DELIVERED TO PATTI BURMAHL OR HER DESIGNEE, OR MAILED TO PATTI BURMAHL, GERBER SCIENTIFIC, INC., 24 INDUSTRIAL PARK ROAD WEST, TOLLAND CT 06084 AND POSTMARKED WITHIN SEVEN (7) CALENDAR DAYS AFTER EMPLOYEE SIGNS THIS AGREEMENT AND GENERAL RELEASE.",
"EMPLOYEE AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT AND GENERAL RELEASE, DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL UP TO TWENTY-ONE (21) CALENDAR DAY CONSIDERATION PERIOD. EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT AND GENERAL RELEASE INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS EMPLOYEE HAS OR MIGHT HAVE AGAINST RELEASEES. The Parties knowingly and voluntarily sign this Agreement and General Release as of the date(s) set forth below: Gerber Scientific, Inc. By: /s/ John R. Hancock By: /s/ Patti Burmahl John R. Hancock Patti Burmahl Sr. Vice President, Global Human Resources Date: March 28, 2011 Date: March 28, 2011"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Title: Can my husband reopen a case from when he was younger because it caused him to be infertile? Question:[deleted] Answer #1: In most medical malpractice cases, there is a tolling provision to the statute of limitations; it runs from when the person either discovered the injury or reasonably should have known of the injury.
You may have difficulty because lack of sperm production is such an obvious side effect of removing a testicle and operating on the other, that really should have attempted to get a sperm sample at a follow up appointment, even if he was a minor. So is it reasonable that he didn't know? I don't know, and medical malpractice cases are extremely fact dependent. You need a local MedMal attorney to give you a consult to find out if you really have a case. | 09-30-2015 | [
"Title: Can my husband reopen a case from when he was younger because it caused him to be infertile? Question:[deleted] Answer #1: In most medical malpractice cases, there is a tolling provision to the statute of limitations; it runs from when the person either discovered the injury or reasonably should have known of the injury. You may have difficulty because lack of sperm production is such an obvious side effect of removing a testicle and operating on the other, that really should have attempted to get a sperm sample at a follow up appointment, even if he was a minor. So is it reasonable that he didn't know? I don't know, and medical malpractice cases are extremely fact dependent. You need a local MedMal attorney to give you a consult to find out if you really have a case."
]
| https://www.reddit.com/r/legaladvice/comments/3n0z11/can_my_husband_reopen_a_case_from_when_he_was/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
This was an action of ejectment to recover an undivided fourth of thirty acres of land in Denmark, Lewis county, which thirty acres were a part or parcel of a farm or tract of 100 acres, formerly owned and occupied by one Gardiner Cottrel, and of which he died seized in 1833, leaving four children, his heirs-at-law, and a widow. Adelia, one of the four children, with her husband, Elisha Saxton, subsequently, and in 1834, by a quitclaim deed, conveyed all her right and interest in and to the 100 acres, describing them by metes and bounds, to Lewis G. Cottrel, the defendant and respondent, another of the four children; but which deed, immediately following the description of the 100 acres, contained these words: "The party of the first part reserves out of the above described lands one-fourth part of thirty acres of said land, that was set off to mother as her right of dower, or power of thirds." Beside this deed, the plaintiff, on the trial of this action, put in evidence the record of a deed, dated June 26th, 1854, acknowledged June 27th, 1854, and recorded September 30th, 1854, by which last mentioned deed, the said Adelia, with her husband Elisha Saxton, quitclaimed and conveyed to the plaintiff all the right, title and interest in said 100 acres, which the grantors "now have, or may hereafter have or inherit, as the heirs-at-law of Gardiner Cottrel, deceased, and his widow, Nancy. The said Adelia being the daughter of said Gardiner Cottrel and the said Nancy, who has a dower right in said premises." It was admitted on the trial that Nancy, the widow, died December 1st, 1861. The learned justice, before whom the action was tried at the circuit, on motion of the defendant, dismissed the complaint, on the ground that the deed of May 4th, 1834, from Adelia Saxton and her husband, conveyed to the defendant the estate and interest of the said Adelia in the whole of the *Page 529 100 acres, including the thirty acres, part and parcel of the 100 acres, which had been set off for the widow's dower; the plaintiff offering to locate, by evidence, the thirty acres described in the complaint, and this evidence being excluded on objection by the defendant. The plaintiff excepted to the exclusion of this evidence, and also to the ruling or order dismissing the complaint; and these exceptions, and the plaintiff's motion for a new trial, were ordered to be heard in the first instance at the General Term. This appeal is from the judgment of the General Term (Justice MULLIN delivering the prevailing opinion, and Justice ALLEN delivering a dissenting opinion), denying the plaintiff's motion for a new trial, and affirming the order or judgment at the circuit, dismissing his complaint. The plaintiff's right to recover the one undivided fourth of the thirty acres described in his complaint, which we must assume to be the same thirty acres mentioned or referred to in the reservation in the deed of May 4th, 1834, depends upon the construction of that reservation; and this question of construction is the only question presented by this appeal. Justice MULLIN, whose opinion seems to have controlled the decision of the General Term, citing and relying on Swick v.Sears (1 Hill, 17), seems to have been of the opinion that the reservation should be regarded as a reservation of the widow's estate and interest in the thirty acres which had been set off as her dower, or of one-fourth of that estate and interest, which, of course, was a life estate; and that, consequently, the quitclaim of the 4th of May, 1834, should be regarded as a quitclaim of Adelia Saxton's undivided fourth of the thirty acres, subject to her mother's life estate, as well as a quitclaim of her undivided fourth of the remainder of the 100 acres. I am of the opinion that the case of Swick v. Sears does not justify such a construction of the reservation in the deed of Mrs. Saxton and her husband, of the 4th of May, 1834; *Page 530 that the reasoning of Judge BRONSON, in Swick v. Sears, does not apply to the reservation in question in this case. In that case the plaintiff was seized of the entire estate, except the widow's dower right, and the deed which contained the reservation was a warranty deed; and the reservation was in these words: "Reserving the equal undivided third part of the above described premises that is covered by the dower right of Charity Covert." Charity Covert's dower right in that case was an estate for her life in an undivided third of the premises conveyed. It covered the whole of the premises conveyed. Her dower had never been set off or admeasured. There was no particular third part of the premises covered by her dower or dower right. It was held, and rightfully held, I think, that the plaintiff did not intend to convey only an undivided two-thirds of his estate, but his whole estate, subject to Charity Covert's right of dower, which covered an undivided third of the whole premises. But in the principal case the grantors were seized of only an undivided fourth of the premises; the thirty acres thereof, which had been set off as the widow's dower (it must be presumed by metes and bounds), were subject to her dower right or life estate. The deed being a quitclaim only, no inference is to be drawn from the circumstance that, in form or in words, it purports to convey all the grantor's estate and interest, etc., without specifying the estate and interest to be an undivided fourth. Mrs. Saxton had but an undivided fourth part of the premises, and her undivided fourth part of the thirty acres which had been set off for her mother's dower right was subject to that right, and Mrs. Saxton and her husband quitclaimed her undivided fourth part of the premises, reserving her "one-fourth part of thirty acres of said land, that was set off to mother as her dower." The reservation is not of any right or estate of her mother in the thirty acres, or in Mrs. Saxton's one-fourth of the thirty acres, but it is a reservation of Mrs. Saxton's one-fourth *Page 531 part of a particular part or parcel, containing thirty acres, of the 100 acres before described, which thirty acres are described as the thirty acres "that was set off," etc. I think the judgment should be reversed, and a new trial ordered, with costs to abide the event. For reversal, SUTHERLAND, GROVER, FOSTER, SMITH and INGALLS, JJ., and EARL, Ch. J. Judgment reversed, and new trial ordered. | 07-06-2016 | [
"This was an action of ejectment to recover an undivided fourth of thirty acres of land in Denmark, Lewis county, which thirty acres were a part or parcel of a farm or tract of 100 acres, formerly owned and occupied by one Gardiner Cottrel, and of which he died seized in 1833, leaving four children, his heirs-at-law, and a widow. Adelia, one of the four children, with her husband, Elisha Saxton, subsequently, and in 1834, by a quitclaim deed, conveyed all her right and interest in and to the 100 acres, describing them by metes and bounds, to Lewis G. Cottrel, the defendant and respondent, another of the four children; but which deed, immediately following the description of the 100 acres, contained these words: \"The party of the first part reserves out of the above described lands one-fourth part of thirty acres of said land, that was set off to mother as her right of dower, or power of thirds.\"",
"Beside this deed, the plaintiff, on the trial of this action, put in evidence the record of a deed, dated June 26th, 1854, acknowledged June 27th, 1854, and recorded September 30th, 1854, by which last mentioned deed, the said Adelia, with her husband Elisha Saxton, quitclaimed and conveyed to the plaintiff all the right, title and interest in said 100 acres, which the grantors \"now have, or may hereafter have or inherit, as the heirs-at-law of Gardiner Cottrel, deceased, and his widow, Nancy. The said Adelia being the daughter of said Gardiner Cottrel and the said Nancy, who has a dower right in said premises.\" It was admitted on the trial that Nancy, the widow, died December 1st, 1861.",
"The learned justice, before whom the action was tried at the circuit, on motion of the defendant, dismissed the complaint, on the ground that the deed of May 4th, 1834, from Adelia Saxton and her husband, conveyed to the defendant the estate and interest of the said Adelia in the whole of the *Page 529 100 acres, including the thirty acres, part and parcel of the 100 acres, which had been set off for the widow's dower; the plaintiff offering to locate, by evidence, the thirty acres described in the complaint, and this evidence being excluded on objection by the defendant. The plaintiff excepted to the exclusion of this evidence, and also to the ruling or order dismissing the complaint; and these exceptions, and the plaintiff's motion for a new trial, were ordered to be heard in the first instance at the General Term. This appeal is from the judgment of the General Term (Justice MULLIN delivering the prevailing opinion, and Justice ALLEN delivering a dissenting opinion), denying the plaintiff's motion for a new trial, and affirming the order or judgment at the circuit, dismissing his complaint.",
"The plaintiff's right to recover the one undivided fourth of the thirty acres described in his complaint, which we must assume to be the same thirty acres mentioned or referred to in the reservation in the deed of May 4th, 1834, depends upon the construction of that reservation; and this question of construction is the only question presented by this appeal. Justice MULLIN, whose opinion seems to have controlled the decision of the General Term, citing and relying on Swick v.Sears (1 Hill, 17), seems to have been of the opinion that the reservation should be regarded as a reservation of the widow's estate and interest in the thirty acres which had been set off as her dower, or of one-fourth of that estate and interest, which, of course, was a life estate; and that, consequently, the quitclaim of the 4th of May, 1834, should be regarded as a quitclaim of Adelia Saxton's undivided fourth of the thirty acres, subject to her mother's life estate, as well as a quitclaim of her undivided fourth of the remainder of the 100 acres. I am of the opinion that the case of Swick v. Sears does not justify such a construction of the reservation in the deed of Mrs. Saxton and her husband, of the 4th of May, 1834; *Page 530 that the reasoning of Judge BRONSON, in Swick v. Sears, does not apply to the reservation in question in this case.",
"In that case the plaintiff was seized of the entire estate, except the widow's dower right, and the deed which contained the reservation was a warranty deed; and the reservation was in these words: \"Reserving the equal undivided third part of the above described premises that is covered by the dower right of Charity Covert.\" Charity Covert's dower right in that case was an estate for her life in an undivided third of the premises conveyed. It covered the whole of the premises conveyed. Her dower had never been set off or admeasured. There was no particular third part of the premises covered by her dower or dower right. It was held, and rightfully held, I think, that the plaintiff did not intend to convey only an undivided two-thirds of his estate, but his whole estate, subject to Charity Covert's right of dower, which covered an undivided third of the whole premises. But in the principal case the grantors were seized of only an undivided fourth of the premises; the thirty acres thereof, which had been set off as the widow's dower (it must be presumed by metes and bounds), were subject to her dower right or life estate.",
"The deed being a quitclaim only, no inference is to be drawn from the circumstance that, in form or in words, it purports to convey all the grantor's estate and interest, etc., without specifying the estate and interest to be an undivided fourth. Mrs. Saxton had but an undivided fourth part of the premises, and her undivided fourth part of the thirty acres which had been set off for her mother's dower right was subject to that right, and Mrs. Saxton and her husband quitclaimed her undivided fourth part of the premises, reserving her \"one-fourth part of thirty acres of said land, that was set off to mother as her dower.\" The reservation is not of any right or estate of her mother in the thirty acres, or in Mrs. Saxton's one-fourth of the thirty acres, but it is a reservation of Mrs. Saxton's one-fourth *Page 531 part of a particular part or parcel, containing thirty acres, of the 100 acres before described, which thirty acres are described as the thirty acres \"that was set off,\" etc.",
"I think the judgment should be reversed, and a new trial ordered, with costs to abide the event. For reversal, SUTHERLAND, GROVER, FOSTER, SMITH and INGALLS, JJ., and EARL, Ch. J. Judgment reversed, and new trial ordered."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3621554/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER AND PRINCIPAL FINANCIAL OFFICER PURSUANT TO 18 U.S.C. SECTION 1350 In connection with the accompanying Quarterly Report on Form 10-Q of E-18 Corp. for the Quarter EndingJune 30, 2009, I, John S. Salstrom, Principal Executive Officer and Principal Financial Officer of E-18 Corp. hereby certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, to the best of my knowledge and belief, that: 1. Such Quarterly Report on Form 10-Q for the period endingJune 30, 2009, fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and 2. The information contained in such Quarterly Report on Form 10-Q for the period endedJune 30, 2009, fairly represents in all material respects, the financial condition and results of operations of E-18 Corp. Dated: August 19, 2009 /s/ John S. Salstrom John S. Salstrom Chief Executive Officer, Chief Financial and Accounting Officer | [
"CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER AND PRINCIPAL FINANCIAL OFFICER PURSUANT TO 18 U.S.C. SECTION 1350 In connection with the accompanying Quarterly Report on Form 10-Q of E-18 Corp. for the Quarter EndingJune 30, 2009, I, John S. Salstrom, Principal Executive Officer and Principal Financial Officer of E-18 Corp. hereby certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, to the best of my knowledge and belief, that: 1. Such Quarterly Report on Form 10-Q for the period endingJune 30, 2009, fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and 2. The information contained in such Quarterly Report on Form 10-Q for the period endedJune 30, 2009, fairly represents in all material respects, the financial condition and results of operations of E-18 Corp. Dated: August 19, 2009 /s/ John S. Salstrom John S. Salstrom Chief Executive Officer, Chief Financial and Accounting Officer"
]
| https://applica-public.s3-eu-west-1.amazonaws.com/contract-discovery/edgar.txt.xz | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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Title: Remember him? He's still not aggressive, I ended up being his foster, and he's going home to his soldier at the end of April. Just wanted to brighten your day. Question: Answer #1: I don't remember :( could you link to the original?
That dog is adorable! | 02-12-2017 | [
"Title: Remember him? He's still not aggressive, I ended up being his foster, and he's going home to his soldier at the end of April. Just wanted to brighten your day. Question: Answer #1: I don't remember :( could you link to the original? That dog is adorable!"
]
| https://i.reddituploads.com/5f6e18604b6242d68b616c4817c0940d?fit=max&h=1536&w=1536&s=f4736b40659be09fd089cba16a7fcb04 | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
I am unable to agree with the reasoning or the conclusion reached by the majority in this case. In order to make my position clear, it is necessary to restate the facts, because to my mind several material features of the case have been omitted or not given their proper weight in the majority opinion. Under the civil service provisions (Article XIX) of the Philadelphia Charter Act of June 25, 1919, P. L. 581, patrolmen may be appointed, except in an emergency, only from lists of those eligible, compiled after competitive examination by the civil service commission of the city. On August 14, 1931, Lemuel B. Schofield, then director of public safety, requested the civil service commission to hold an examination and provide him with an eligible list in order that he might fill a number of vacancies in the quota of patrolmen — at that time 4,530 — before his term of office should expire on January 1, 1932. Because of the delay attendant upon the examination and grading of the applicants, this list was not delivered to Director Schofield until December 14, 1931. No appointments were made to the police force between August 25th and December 15th, and there were on the latter date 179 vacancies in the ranks of patrolmen. Neither during that time nor during the remainder of the year was there any emergency requiring the appointment *Page 489 of additional patrolmen, nor was there any legal obligation upon the director of public safety to do so. In the meantime, on December 10th, it had become evident to the municipal authorities that, because of the financial condition of the city and the undesirability of raising the tax rate, it would be necessary to cut the appropriations of the various city departments for the coming year. On December 14th, the same date that he received the eligible list from the civil service commission, Director Schofield proposed to the finance committee of the city council, at a session devoted to the preparation of the city budget for 1932, that a saving of over $800,000 be effected by the reduction of the number of patrolmen from 4,530 to 4,400, and by similar reductions in the fire department and other subordinate divisions of the department of public safety. This recommendation was immediately adopted by the finance committee and was incorporated in its report on the budget on December 29th; the budget ordinance, containing these reductions, was passed by council on December 31st and was signed by the mayor on the same day. Nevertheless, although he had already recommended thereduction of the number of patrolmen by 130, and knew that hissuggestion had been accepted by the finance committee, Director Schofield proceeded to make appointments from the list furnished him by the civil service commission, and he thus filled, between December 15th and the end of the year, all of the 179 vacancies existing on December 15th. Of these appointments two were made on December 29th, 42 on December 30th, and eight on December 31st. He actually filled 50 vacancies after council had acted upon his own recommendation to reduce the force. All these appointments were provisional only; section 15, of Article XIX, of the Charter Act requires that all new appointments be for a probationary period of three months, and provides that "if during that period the service of that officer or employee is unsatisfactory, the appointing officer shall notify him *Page 490 in writing that he will not be retained in the public service after such three months' period. If not so notified, his appointment shall become permanent at the end of the three months' probationary period." The discharge of appointees during the probationary period is provided for by the rules of the civil service commission (which by section 13, of Article XIX, have the force and effect of law), which state: "A probationer may be removed at any time within the three months by the same procedure prescribed for the removal of employees who have received final appointment." The method of removing policemen who have completed their probationary period and become permanent employees is prescribed in section 18, of Article XIX, which provides: "No police officer or fireman, except those dismissed during probationary period, shall be removed or discharged, except for cause, upon written charges, and after an opportunity to be heard in his own defense. Such charges . . . . . . shall, within thirty days after filing, be heard, investigated, and determined by the commission." Having thus filled every available vacancy in the quota for 1931 of 4,530 patrolmen by 179 new appointments in his last two weeks in office, Director Schofield was required by the action of council, approved by the mayor, to reduce the force by 130 men to 4,400, in order to meet the provisions of the budget for 1932. This he attempted to do by peremptorily discharging — not a single one of the probationers just appointed — but 130 permanently appointed service men, whom he hastily picked by examining the records of about one-half of the patrolmen. On December 29th he had letters printed, which on December 31st were sent to the discharged men, including plaintiff, in notification; in them, it was stated that the discharge was an honorable one and was necessary because of the reductions in the budget of the department for 1932. In his testimony Director Schofield stated, as his reason for choosing the men he did, that he wished to separate from the force those men whom it could "best *Page 491 afford to lose." However, the records of the discharged men, which were printed with the testimony, show that none were probationers, while some were veterans of 18 or 19 years' experience, that among them was one who had won in the previous year the annual public award for the outstanding feat of bravery on the police force, and that others had absolutely clear records. The evidence amply supports the finding of the learned trial judge that the appointment by the director of probationers when he knew the force would have to be reduced was a mere subterfuge resorted to by him in order that he might later discharge, upon the pretext of economy, men whom he could not otherwise remove from the service and whom he wished to dismiss for personal reasons. On January 14, 1932, the president of the civil service commission, without consultation with the other two members of the commission, sent a form letter to the city controller, approving the separation from the police force of the 130 men discharged by Director Schofield. This was done because such approval was necessary in order that the city payroll be not held up. On January 19th, the new director of public safety, Kern Dodge, who had taken office on the first of the year, sent to the civil service commission, at its request, a new list of the men discharged, together with their records. At that time, Director Dodge testified, he approved the action of his predecessor because of the bad records of the men discharged, although he admitted that he made no check or comparison of their records with those of the others remaining on the force. In accordance with the rules of the civil service commission, these men, since they had been honorably discharged, were placed on a "preferred list," to which preference was to be given in making appointments during the following year. However, because of the financial difficulties of the city, which continued throughout 1932, no appointments were made to the police force, although a number of vacancies occurred. Finally, on December 28, 1932, the civil service *Page 492 commission, after efforts to have the discharged men appointed to the existing vacancies had failed, and since their status as preferred applicants was about to expire, formally withdrew the letter sent by the president on January 14th and ordered the director of public safety to reinstate on the force all the men on the preferred list, creating vacancies by promotion, if necessary to do so. There were at this time 87 vacancies among the ranks of the patrolmen. With the order of the civil service commission the director of public safety refused to comply, and this action followed. The decision of the court below was based on the ground that, inasmuch as there were more than 130 vacancies when Director Schofield proposed to abolish that number of positions, petitioner's position was not abolished by the budget ordinance putting that proposal into effect, and, therefore, the discharge of petitioners was not, in fact, made for reasons of economy, but merely to make way for a probationary appointee of the director. For such reason, the court held, the director was without authority to dismiss petitioner, and he could lawfully be removed from his position only by the civil service commission, following the procedure established in Article XIX of the Charter Act. It would at once seem that this denial of the right of the director to remove patrolmen whom he had the power to appoint, and the giving of the power of removal to the civil service commission, as provided by the Charter Act, is in direct violation of the provision of Article VI, section 4, of the Constitution, that "Appointed officers, other than judges of the courts of record, and the Superintendent of Public Instruction, may be removed at the pleasure of the power by which they shall have been appointed." However, as we have often said, this provision applies only to officers in whose offices are vested important public duties and functions (Houseman v. Com., 100 Pa. 222; Arthur v. Phila., 273 Pa. 419; see Richie v. Phila., 225 Pa. 511, and 37 Pa. Super. 190), *Page 493 not to mere subordinate ministerial agents or employees, who are petty officers, and therefore subject, as to appointment and removal, to legislative regulation: Com. v. Black, 201 Pa. 433; see Duffy v. Cooke, 239 Pa. 427; Georges Twp. School Directors, 286 Pa. 129. Thus, in Com. v. Black, we expressly held that a policeman of a third-class city, who was appointed by the mayor, could not be removed by the mayor without the consent of the city council, inasmuch as the governing act of assembly required such consent for dismissal. The case is directly in point, and it must therefore be regarded as settled that, so far as petty ministerial officers such as policemen are concerned, civil service statutes regulating the method of dismissal are effective and not in contravention of the Constitution. The opinion of the majority is based upon the ground that as the quota of patrolmen was full on December 31, 1931, it was necessary to discharge 130 patrolmen in order to come within the limits fixed for the year 1932, and the removal of petitioner and those discharged with him was thus dictated by the abolition of 130 positions. Under these circumstances, it is held, where dismissals must be made in order to reduce the number of employees, civil service limitations upon the discharge of employees have no application, and Director Schofield, as the appointing officer, had the power to remove those whom, in the exercise of his discretion, he chose. The principle thus relied on is well established; since the number of patrolmen had to be reduced for reasons of economy, the director, as the appointing officer, had the right to remove, without the presentation of charges and a hearing, as many men as was necessary. I cannot agree, however, that this power vested in the director gave him any authority to act as he did in the instant case. As I see it, his action was not a mere breach of discretion, but an attempt to accomplish by apparently legal means that which he had no right or power to do. *Page 494 When, with the approval of the budget ordinance on December 31st, the director had to reduce the number of policemen by 130, there were, in the ranks from which he had to choose, 4,351 permanent service patrolmen, and 179 new probationary patrolmen. As provided in the Charter Act, these new men, until after they had completed a three months' probationary period, could be removed without trial. I would hold, therefore, that when it became the duty of the director to reduce the force, it was incumbent upon him first to discharge those who had not yet become permanent employees of the city, and who could in any event be removed without a trial. Since the number of probationers exceeded the number by which the force was to be reduced, all the removals should have been made from among them. When the director, instead of removing 130 probationers — who, under the circumstances, should never have been appointed in the first place — attempted to remove 130 veterans, he exceeded the right of choice given to him. I think he had no right to do what he did, and that his action in attempting to remove petitioner should be held illegal and of no effect. In my opinion, Director Schofield's action was a clear violation of the civil service provisions of the Charter Act. The most important principle and fundamental object of all civil service laws is the protection of public servants in their employment and the prevention of their removal therefrom by unfair means. If broken down in this primary respect, such laws will have no value. As already shown, the civil service provisions of the Charter Act give complete protection, so far as removal without trial is concerned, to the classes of public servants named therein. The only exception to this protection is that which results from necessary reduction of personnel for reasons of economy. But certainly this well-known principle should not be unnecessarily carried to the extent of destroying the basic feature of the Civil Service Law. That is exactly the result of this decision sustaining the *Page 495 action of Director Schofield, because he deliberately took from the rolls of his department men who were protected in their employment by the Civil Service Law, while at the same moment keeping on those rolls a greater number of men who did not have that protection, but were probationers, subject by the terms of the Civil Service Law itself to removal without trial and without the assignment of any reason. The action of the director was destructive of the fundamental object of the law. Under the facts of this case I would hold that it was the director's bounden duty to remove from the ranks of the probationers a sufficient number to comply with the mandate of the city council, and that his action in removing veteran employees protected by the civil service, even under the pretense of having done so for reasons of economy, was illegal and of no effect. Nor can I agree with the majority in holding that the judgment must be reversed because there is no appropriation for plaintiff's salary, and that to order his reinstatement would be to enforce a liability against the city without an appropriation having been made to meet it. No such question of payment is involved in the instant proceeding; the question now before us is whether plaintiff is entitled to reinstatement, not whether he can, if reinstated, obtain payment for his services. Whether plaintiff can require the city to pay him for the period of his improper suspension is in this action entirely immaterial. The sole question here is the right of the plaintiff to be returned to an office from which he was never legally removed. To grant the plaintiff the mandamus which he seeks would not be holding the city responsible for the wrongful act of the director, but would merely restore him to the place from which the director had no power to remove him. This argument of the majority seems to me a clear misapplication of the rule that a municipality is not to be visited with liability for the wrongful acts of its representatives or employees. In Scibilia v. Phila., 279 Pa. 549; Devers v. Scranton, *Page 496 308 Pa. 13, and Szilagyi v. Bethlehem, 312 Pa. 260, relied upon by the majority, it was attempted to hold the defendant municipality liable in damages for the torts of its officers and employees done in the performance of a governmental function; it is well settled that this cannot be done. The other case relied upon by the majority, Keim v. United States,177 U.S. 290, is not, in my view, even authority for that proposition; the Supreme Court of the United States there held that "In the absence of specific provision to the contrary, the power of removal from office is incident to the power of appointment," and that therefore the discretion of an appointing officer in removing a subordinate clerk on account of inefficiency was "beyond review in the courts either by mandamus to reinstate him or by compelling payment of salary as though he had not been removed." Here, of course, there is specific statutory provision regulating the power of the director of public safety to remove police officers. The principle of our cases cannot logically be so extended as to deny one wrongfully removed from office the right to reinstatement. The enforcement of that right by an action of mandamus is a familiar remedy (Dillon, Municipal Corporations [5th ed.], section 487; 19 R. C. L. 940), which we should not thus casually destroy. Since, as I see it, Director Schofield had, by the plain provisions of the Charter Act, no power to discharge the plaintiff in the way he did, his attempt to do so was absolutely nugatory, and plaintiff should be reinstated. So far as the instant proceeding is concerned, this would place no liability upon the city. It means only the return of the plaintiff to the position from which he was never legally discharged. For the reasons given above, I would affirm the judgment rendered below. *Page 497 | 07-06-2016 | [
"I am unable to agree with the reasoning or the conclusion reached by the majority in this case. In order to make my position clear, it is necessary to restate the facts, because to my mind several material features of the case have been omitted or not given their proper weight in the majority opinion. Under the civil service provisions (Article XIX) of the Philadelphia Charter Act of June 25, 1919, P. L. 581, patrolmen may be appointed, except in an emergency, only from lists of those eligible, compiled after competitive examination by the civil service commission of the city. On August 14, 1931, Lemuel B. Schofield, then director of public safety, requested the civil service commission to hold an examination and provide him with an eligible list in order that he might fill a number of vacancies in the quota of patrolmen — at that time 4,530 — before his term of office should expire on January 1, 1932.",
"Because of the delay attendant upon the examination and grading of the applicants, this list was not delivered to Director Schofield until December 14, 1931. No appointments were made to the police force between August 25th and December 15th, and there were on the latter date 179 vacancies in the ranks of patrolmen. Neither during that time nor during the remainder of the year was there any emergency requiring the appointment *Page 489 of additional patrolmen, nor was there any legal obligation upon the director of public safety to do so. In the meantime, on December 10th, it had become evident to the municipal authorities that, because of the financial condition of the city and the undesirability of raising the tax rate, it would be necessary to cut the appropriations of the various city departments for the coming year. On December 14th, the same date that he received the eligible list from the civil service commission, Director Schofield proposed to the finance committee of the city council, at a session devoted to the preparation of the city budget for 1932, that a saving of over $800,000 be effected by the reduction of the number of patrolmen from 4,530 to 4,400, and by similar reductions in the fire department and other subordinate divisions of the department of public safety. This recommendation was immediately adopted by the finance committee and was incorporated in its report on the budget on December 29th; the budget ordinance, containing these reductions, was passed by council on December 31st and was signed by the mayor on the same day.",
"Nevertheless, although he had already recommended thereduction of the number of patrolmen by 130, and knew that hissuggestion had been accepted by the finance committee, Director Schofield proceeded to make appointments from the list furnished him by the civil service commission, and he thus filled, between December 15th and the end of the year, all of the 179 vacancies existing on December 15th.",
"Of these appointments two were made on December 29th, 42 on December 30th, and eight on December 31st. He actually filled 50 vacancies after council had acted upon his own recommendation to reduce the force. All these appointments were provisional only; section 15, of Article XIX, of the Charter Act requires that all new appointments be for a probationary period of three months, and provides that \"if during that period the service of that officer or employee is unsatisfactory, the appointing officer shall notify him *Page 490 in writing that he will not be retained in the public service after such three months' period. If not so notified, his appointment shall become permanent at the end of the three months' probationary period.\" The discharge of appointees during the probationary period is provided for by the rules of the civil service commission (which by section 13, of Article XIX, have the force and effect of law), which state: \"A probationer may be removed at any time within the three months by the same procedure prescribed for the removal of employees who have received final appointment.\"",
"The method of removing policemen who have completed their probationary period and become permanent employees is prescribed in section 18, of Article XIX, which provides: \"No police officer or fireman, except those dismissed during probationary period, shall be removed or discharged, except for cause, upon written charges, and after an opportunity to be heard in his own defense. Such charges . . . . . . shall, within thirty days after filing, be heard, investigated, and determined by the commission.\" Having thus filled every available vacancy in the quota for 1931 of 4,530 patrolmen by 179 new appointments in his last two weeks in office, Director Schofield was required by the action of council, approved by the mayor, to reduce the force by 130 men to 4,400, in order to meet the provisions of the budget for 1932. This he attempted to do by peremptorily discharging — not a single one of the probationers just appointed — but 130 permanently appointed service men, whom he hastily picked by examining the records of about one-half of the patrolmen.",
"On December 29th he had letters printed, which on December 31st were sent to the discharged men, including plaintiff, in notification; in them, it was stated that the discharge was an honorable one and was necessary because of the reductions in the budget of the department for 1932. In his testimony Director Schofield stated, as his reason for choosing the men he did, that he wished to separate from the force those men whom it could \"best *Page 491 afford to lose.\" However, the records of the discharged men, which were printed with the testimony, show that none were probationers, while some were veterans of 18 or 19 years' experience, that among them was one who had won in the previous year the annual public award for the outstanding feat of bravery on the police force, and that others had absolutely clear records.",
"The evidence amply supports the finding of the learned trial judge that the appointment by the director of probationers when he knew the force would have to be reduced was a mere subterfuge resorted to by him in order that he might later discharge, upon the pretext of economy, men whom he could not otherwise remove from the service and whom he wished to dismiss for personal reasons. On January 14, 1932, the president of the civil service commission, without consultation with the other two members of the commission, sent a form letter to the city controller, approving the separation from the police force of the 130 men discharged by Director Schofield. This was done because such approval was necessary in order that the city payroll be not held up.",
"On January 19th, the new director of public safety, Kern Dodge, who had taken office on the first of the year, sent to the civil service commission, at its request, a new list of the men discharged, together with their records. At that time, Director Dodge testified, he approved the action of his predecessor because of the bad records of the men discharged, although he admitted that he made no check or comparison of their records with those of the others remaining on the force. In accordance with the rules of the civil service commission, these men, since they had been honorably discharged, were placed on a \"preferred list,\" to which preference was to be given in making appointments during the following year. However, because of the financial difficulties of the city, which continued throughout 1932, no appointments were made to the police force, although a number of vacancies occurred. Finally, on December 28, 1932, the civil service *Page 492 commission, after efforts to have the discharged men appointed to the existing vacancies had failed, and since their status as preferred applicants was about to expire, formally withdrew the letter sent by the president on January 14th and ordered the director of public safety to reinstate on the force all the men on the preferred list, creating vacancies by promotion, if necessary to do so.",
"There were at this time 87 vacancies among the ranks of the patrolmen. With the order of the civil service commission the director of public safety refused to comply, and this action followed. The decision of the court below was based on the ground that, inasmuch as there were more than 130 vacancies when Director Schofield proposed to abolish that number of positions, petitioner's position was not abolished by the budget ordinance putting that proposal into effect, and, therefore, the discharge of petitioners was not, in fact, made for reasons of economy, but merely to make way for a probationary appointee of the director. For such reason, the court held, the director was without authority to dismiss petitioner, and he could lawfully be removed from his position only by the civil service commission, following the procedure established in Article XIX of the Charter Act.",
"It would at once seem that this denial of the right of the director to remove patrolmen whom he had the power to appoint, and the giving of the power of removal to the civil service commission, as provided by the Charter Act, is in direct violation of the provision of Article VI, section 4, of the Constitution, that \"Appointed officers, other than judges of the courts of record, and the Superintendent of Public Instruction, may be removed at the pleasure of the power by which they shall have been appointed.\" However, as we have often said, this provision applies only to officers in whose offices are vested important public duties and functions (Houseman v. Com., 100 Pa. 222; Arthur v. Phila., 273 Pa. 419; see Richie v. Phila., 225 Pa. 511, and 37 Pa. Super. 190), *Page 493 not to mere subordinate ministerial agents or employees, who are petty officers, and therefore subject, as to appointment and removal, to legislative regulation: Com.",
"v. Black, 201 Pa. 433; see Duffy v. Cooke, 239 Pa. 427; Georges Twp. School Directors, 286 Pa. 129. Thus, in Com. v. Black, we expressly held that a policeman of a third-class city, who was appointed by the mayor, could not be removed by the mayor without the consent of the city council, inasmuch as the governing act of assembly required such consent for dismissal. The case is directly in point, and it must therefore be regarded as settled that, so far as petty ministerial officers such as policemen are concerned, civil service statutes regulating the method of dismissal are effective and not in contravention of the Constitution. The opinion of the majority is based upon the ground that as the quota of patrolmen was full on December 31, 1931, it was necessary to discharge 130 patrolmen in order to come within the limits fixed for the year 1932, and the removal of petitioner and those discharged with him was thus dictated by the abolition of 130 positions.",
"Under these circumstances, it is held, where dismissals must be made in order to reduce the number of employees, civil service limitations upon the discharge of employees have no application, and Director Schofield, as the appointing officer, had the power to remove those whom, in the exercise of his discretion, he chose. The principle thus relied on is well established; since the number of patrolmen had to be reduced for reasons of economy, the director, as the appointing officer, had the right to remove, without the presentation of charges and a hearing, as many men as was necessary. I cannot agree, however, that this power vested in the director gave him any authority to act as he did in the instant case. As I see it, his action was not a mere breach of discretion, but an attempt to accomplish by apparently legal means that which he had no right or power to do.",
"*Page 494 When, with the approval of the budget ordinance on December 31st, the director had to reduce the number of policemen by 130, there were, in the ranks from which he had to choose, 4,351 permanent service patrolmen, and 179 new probationary patrolmen. As provided in the Charter Act, these new men, until after they had completed a three months' probationary period, could be removed without trial. I would hold, therefore, that when it became the duty of the director to reduce the force, it was incumbent upon him first to discharge those who had not yet become permanent employees of the city, and who could in any event be removed without a trial. Since the number of probationers exceeded the number by which the force was to be reduced, all the removals should have been made from among them. When the director, instead of removing 130 probationers — who, under the circumstances, should never have been appointed in the first place — attempted to remove 130 veterans, he exceeded the right of choice given to him. I think he had no right to do what he did, and that his action in attempting to remove petitioner should be held illegal and of no effect.",
"In my opinion, Director Schofield's action was a clear violation of the civil service provisions of the Charter Act. The most important principle and fundamental object of all civil service laws is the protection of public servants in their employment and the prevention of their removal therefrom by unfair means. If broken down in this primary respect, such laws will have no value. As already shown, the civil service provisions of the Charter Act give complete protection, so far as removal without trial is concerned, to the classes of public servants named therein. The only exception to this protection is that which results from necessary reduction of personnel for reasons of economy.",
"But certainly this well-known principle should not be unnecessarily carried to the extent of destroying the basic feature of the Civil Service Law. That is exactly the result of this decision sustaining the *Page 495 action of Director Schofield, because he deliberately took from the rolls of his department men who were protected in their employment by the Civil Service Law, while at the same moment keeping on those rolls a greater number of men who did not have that protection, but were probationers, subject by the terms of the Civil Service Law itself to removal without trial and without the assignment of any reason.",
"The action of the director was destructive of the fundamental object of the law. Under the facts of this case I would hold that it was the director's bounden duty to remove from the ranks of the probationers a sufficient number to comply with the mandate of the city council, and that his action in removing veteran employees protected by the civil service, even under the pretense of having done so for reasons of economy, was illegal and of no effect. Nor can I agree with the majority in holding that the judgment must be reversed because there is no appropriation for plaintiff's salary, and that to order his reinstatement would be to enforce a liability against the city without an appropriation having been made to meet it. No such question of payment is involved in the instant proceeding; the question now before us is whether plaintiff is entitled to reinstatement, not whether he can, if reinstated, obtain payment for his services. Whether plaintiff can require the city to pay him for the period of his improper suspension is in this action entirely immaterial. The sole question here is the right of the plaintiff to be returned to an office from which he was never legally removed.",
"To grant the plaintiff the mandamus which he seeks would not be holding the city responsible for the wrongful act of the director, but would merely restore him to the place from which the director had no power to remove him. This argument of the majority seems to me a clear misapplication of the rule that a municipality is not to be visited with liability for the wrongful acts of its representatives or employees. In Scibilia v. Phila., 279 Pa. 549; Devers v. Scranton, *Page 496 308 Pa. 13, and Szilagyi v. Bethlehem, 312 Pa. 260, relied upon by the majority, it was attempted to hold the defendant municipality liable in damages for the torts of its officers and employees done in the performance of a governmental function; it is well settled that this cannot be done. The other case relied upon by the majority, Keim v. United States,177 U.S. 290, is not, in my view, even authority for that proposition; the Supreme Court of the United States there held that \"In the absence of specific provision to the contrary, the power of removal from office is incident to the power of appointment,\" and that therefore the discretion of an appointing officer in removing a subordinate clerk on account of inefficiency was \"beyond review in the courts either by mandamus to reinstate him or by compelling payment of salary as though he had not been removed.\" Here, of course, there is specific statutory provision regulating the power of the director of public safety to remove police officers.",
"The principle of our cases cannot logically be so extended as to deny one wrongfully removed from office the right to reinstatement. The enforcement of that right by an action of mandamus is a familiar remedy (Dillon, Municipal Corporations [5th ed. ], section 487; 19 R. C. L. 940), which we should not thus casually destroy. Since, as I see it, Director Schofield had, by the plain provisions of the Charter Act, no power to discharge the plaintiff in the way he did, his attempt to do so was absolutely nugatory, and plaintiff should be reinstated. So far as the instant proceeding is concerned, this would place no liability upon the city.",
"It means only the return of the plaintiff to the position from which he was never legally discharged. For the reasons given above, I would affirm the judgment rendered below. *Page 497"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3846700/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
SULLIVAN, Chief Judge (concurring in the result): 64. I have previously stated my view as to the resolution of this government appeal in a separate opinion attached to our prior order in this case. The majority’s attempt to further use this unadjudicated case as a vehicle to simplify the law of multiplicity is self-defeating on its face. 65. Nevertheless, Judge Cox’s effort to rewrite the law of multiplicity in dicta deserves some response. I continue to adhere to a “statutory elements” approach vis-a-vis a “pleadings elements” approach when determining necessarily included offenses at courts-martial. United States v. Schoolfield, 40 MJ 132 (CMA 1994); United States v. Teters, 37 MJ 370 (CMA 1993), cert, denied; — U.S. -, 114 S.Ct. 919, 127 L.Ed.2d 213 (1994); see United States v. Foster, 40 MJ 140,148 (CMA 1994) (Sullivan, C.J., concurring); see also United States v. Abeyta, 27 F.3d 470, 474 n. 7 (10th Cir.1994); United States v. Allen, 13 F.3d 105, 109 n. 4 (4th Cir.1993); see generally United States v. Wolfswinkel, 44 F.3d 782, 785 (9th Cir.1995). I also conclude that paragraph 2, Part TV, Manual for Courts-Martial, United States, 1984,* is consistent with a strict statutory elements approach or, if inconsistent, is not determinative of the law of necessarily included offenses at courts-martial. See Art. 79, Uniform Code of Military Justice, 10 USC § 879. 66. Finally, Judge Cox’s resurrection of United States v. Baker, 14 MJ 361 (CMA 1983), is curious and, perhaps, an interesting exercise in semantics. In United States v. Teters, supra at 378, he stated, “With apologies to the great bard, I join the Court in burying United States v. Baker, 14 MJ 361 (CMA 1983), and its progeny, but not in praising or justifying them.” Today, he digs up Baker and unsuccessfully attempts CPR (cardiopulmonary resuscitation).
See ¶ 18 n. 3. | 07-25-2022 | [
"SULLIVAN, Chief Judge (concurring in the result): 64. I have previously stated my view as to the resolution of this government appeal in a separate opinion attached to our prior order in this case. The majority’s attempt to further use this unadjudicated case as a vehicle to simplify the law of multiplicity is self-defeating on its face. 65. Nevertheless, Judge Cox’s effort to rewrite the law of multiplicity in dicta deserves some response. I continue to adhere to a “statutory elements” approach vis-a-vis a “pleadings elements” approach when determining necessarily included offenses at courts-martial. United States v. Schoolfield, 40 MJ 132 (CMA 1994); United States v. Teters, 37 MJ 370 (CMA 1993), cert, denied; — U.S. -, 114 S.Ct.",
"919, 127 L.Ed.2d 213 (1994); see United States v. Foster, 40 MJ 140,148 (CMA 1994) (Sullivan, C.J., concurring); see also United States v. Abeyta, 27 F.3d 470, 474 n. 7 (10th Cir.1994); United States v. Allen, 13 F.3d 105, 109 n. 4 (4th Cir.1993); see generally United States v. Wolfswinkel, 44 F.3d 782, 785 (9th Cir.1995). I also conclude that paragraph 2, Part TV, Manual for Courts-Martial, United States, 1984,* is consistent with a strict statutory elements approach or, if inconsistent, is not determinative of the law of necessarily included offenses at courts-martial. See Art. 79, Uniform Code of Military Justice, 10 USC § 879. 66. Finally, Judge Cox’s resurrection of United States v. Baker, 14 MJ 361 (CMA 1983), is curious and, perhaps, an interesting exercise in semantics. In United States v. Teters, supra at 378, he stated, “With apologies to the great bard, I join the Court in burying United States v. Baker, 14 MJ 361 (CMA 1983), and its progeny, but not in praising or justifying them.” Today, he digs up Baker and unsuccessfully attempts CPR (cardiopulmonary resuscitation).",
"See ¶ 18 n. 3."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7269597/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Regis O’Brien, J. Action No. 1 has been commenced by one Walter C. Wojcik “individually” and in his representative capacity as financial secretary-treasurer of Local 36 of the grain millers’ union, against the defendants, Sam P. Ming and Peter J. Rybka, “individually”, and in their representative capacities as president and vice-president, respectively, of the parent union, viz.; American Federation of Grain Millers, International, affiliated with the American Federation of Labor-Congress of Industrial Organizations. Action No. 2 has been commenced by one Norman Hassman, “ individually ” and as president of said Local Union 36; and Sam P. Ming, “ individually ” and in his representative capacity as president of the parent union against said Walter Wojcik, and Arsenio Gonzalez, Alfred Haas, Michael Kortask and Charles Pinker, all members of Local 36. *846In Action No. 1 the plaintiff demands judgment quashing the proclamation of emergency and the establishment of a trusteeship over the affairs of Local 36. In Action No. 2 the plaintiffs pray judgment that the defendants be enjoined and restrained, permanently, from violating the terms and conditions of the proclamation of trusteeship, also from disaffiliating, or seeking to cause a disaffiliation, of Local 36; and from using, taking or otherwise interfering with the funds and assets of Local 36 and the International.
Action No. 1.
This is an action against the International Union, which granted the local its charter. The issues involved do not constitute a labor dispute within the meaning of the provisions of either the Taft-Hartley Act (Labor Management Relations Act, 1947, 61 U. S. Stat. 136; U. S. Code, tit. 29, § 141 et seq.) or the State Labor Relations Act (Labor Law, § 700 et seq.). Here, the relationship between the parties is not that of employer and employee. It is that of members to an agreement. It has long been the law of this State that the “ constitution and by-laws of an unincorporated association express the terms of a contract which define the privileges secured and the duties assumed by those who have become members.” (Polin v. Kaplan, 257 N. Y. 277, 281; Steinmiller v. McKeon, 21 N. Y. S. 2d 621, 623, affd. 261 App. Div. 899, affd. 288 N. Y. 508.) At a meeting of Local 36 held on May 24, a trusteeship was created by the International president. He proclaimed that “ after due investigation and careful consideration of the conduct of the affairs of Local 36, it was his opinion, as President of the ‘ American Federation of Grain Millers, A. F. L.-C. I. O. ’ that emergency action is necessary * * * in order to protect the rights and interests of Local Union No. 36 and those of the International and the local union. ’ ’ It was issued pursuant to the provisions of section 6 of article IV of the International constitution. The trusteeship in substance and effect, suspended temporarily the autonomy of the local; places its operational affairs under an executive vice-president as representative of the president; prescribes certain procedural action to be taken during the trusteeship in respect to the conduct of the affairs of the local; expressly preserves the rights and privileges of members in good standing in the local; preserves employment rights of the members; provides for an audit of the books of local since January 1, 1958 to the date of the trusteeship, and directs that a copy thereof be given to each member when completed. There are other provisions wihch it is unnecessary to mention specif*847ically, except to state that they do not appear to be unreasonable on their face. Upon delivery of the proclamation of emergency, the trusteeship immediately became effective. Mr. Ming thereupon appointed Mr. Rybka, an executive vice-president of the International, to be his representative. In Action No. 1, the plaintiff secured a “ Stay Order ” which restrained all action in respect to carrying out the terms of the trusteeship. It became effective when served upon the interested parties. It did not set aside or vacate the trusteeship. Any act done or performed pursuant thereto prior to such service was not vacated or annulled thereby. They are merely held in abeyance. Subsequent acts, of course, are restrained until the decision of this motion asking an order of the court to make such stay permanent. At the time of the argument of the motion, Action No. 2 was commenced. A temporary restraining order was also issued in that action restraining either party from using the funds of the local in the banks which were made parties-defendant in Action No. 1. The matters involved in Action No. 2 will be discussed later herein.
Decision in Action No. 1
The court has considered the arguments and the citations submitted by the attorneys for the parties and has also made an independent research of the law which pertains to the issues involved. It is the court’s conclusion therefrom that legal authority would not sustain an order making the temporary ‘ ‘ Stay Order ’ ’ a permanent one pending the trial of the merits of the issues that may be involved. ■ Of course the decision of the motion is not a decision on the merits of the case. The issues involved should be brought to an early determination. All this motion brings in issue for decision is whether or not the procedures set forth in the constitution and by-laws of the union have been followed in proclaiming the trusteeship and are such procedures on their face fair and reasonable. It should be kept in mind that an agreement (constitution, by-laws and charter, issued to the local) determines the rights and remedies of the parties. In this ease the president claimed to act pursuant to subdivision 6 of article IV of the constitution. In part, this section provides that “ The President shall have the right to declare emergencies when in his opinion Emergency Action is necessary to protect the rights and interests of the American Federation *848of Grain Millers, or any Local Union or other subordinate body or officers or members thereof. ’ ’ The proclamation in this case recites that the above-quoted section was the basis for its issuance. The local disputes the existence of such an emergency and claims that the source of the president’s information was tainted. The credibility of the informant or informants is not for this court to determine on this motion. At best, if it is a justiciable issue, it would be for a trial judge to weigh. The attorney for the local argued that the president gave no specific instances upon which the emergency was founded. The attorney for the International argued that such statement was unnecessary, although many such instances existed and were considered. The court has not found nor has any case been cited in which it has been decided that such recital of facts is vital to the validity of the proclamation, and is not so holding. However, in this more enlightened age of labor relations, it seems not inadvisable to comment that the question of such necessity might not have arisen, if the International Union’s president had followed the salutary example set by the authors of the Declaration of Independence in which they proclaimed that “ a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” This they then proceeded to do in detail. Courts have repeatedly held that where the acts complained of are in conformity with the constitution and rules of the union, the court will not interfere (Nilan v. Colleran, 283 N. Y. 84). “ Ordinarily it is sufficient to show compliance with constitutional provisions, which, unless contrary to public policy, are the measure of the rights and duties of international and local unions and their members ” (Garcia v. Ernst, 101 N. Y. S. 2d 693, 697, citing Polin v. Kaplan, 257 N. Y. 277, 281, supra, and Ames v. Dubinsky, 5 Misc 2d 380, 407). The court pointed out in the Garcia case (supra) that the International president, under its constitution, became the prosecutor, judge and sole reviewing authority, which was against public policy. Nevertheless the court held that the facts shown did not “ warrant the issuance of a restraining order in advance of trial” (p. 698). Later and on the same page, the court states “ [u]nder all the facts and circumstances, the court is satisfied that greater damage may result from granting the motion to enjoin the continuance of the trusteeship pendente lite than can possibly result from denying it.” *849While “ [t]he courts are loathe to interfere with the internal affairs or management of any union ’ ’ they will not hesitate to do so in a proper case. (Fanara v. International Brotherhood of Teamsters, 205 Misc. 538, 540; Bricklayers’, Plasterers’ & Stonemasons’ Union v. Bowen, 183 N. Y. S. 855, 859.) Again returning to the procedure adopted by the International, it should be noted that the members of Local 36 in accepting its charter, agreed not to complain that “ the remedies afforded under this Constitution are inadequate ” or “ that pursuit of such remedies would be futile ” (art. VIII, § 2). Thus, the procedure afforded to the members of Local 36, to bring about a termination of the trusteeship, has been agreed by them to be fair and reasonable. What are such remedies! (a) Section 6 of article IV mandates that where ‘ ‘ Emergency Action which results in the suspension of the autonomy of a Local Union * * * it shall be administered in a manner consistent with the democratic policies of this organization, and shall be terminated by the President at the earliest possible date after the emergency, requiring the action, is over.” In the case of Reiser v. Kralstein (26 L. R. R. M. 2014) where the court granted a temporary injunction pending trial of the issues and upon which the plaintiff’s counsel stated he relied very heavily to sustain his position, it appears that the action arose in April of 1950 and the earliest possible date for an internal review of the matter would be at a general convention which would not be held until September of 1951. (b) Again referring to section 6 of article IV, if the trusteeship is not terminated by the president by his own action, within 90 days, any “ local union * * * by majority vote at a regular meeting thereof, may bequest the President to terminate the trusteeship and restore autonomy ’ ’. In the event of such request, “ the President shall, * * * fully investigate such request immediately, upon receipt thereof and shall promptly conduct an appropriate hearing ’ ’. In the event the result of the hearing is a decision to continue “ a suspension of local autonomy, it shall be subject to the Appeal provisions of this Constitution” (emphasis mine). After the lapse of another sis months, if the president’s decision has been upheld on appeal, the local may again request restoration of autonomy, and pursue the same procedure. Appeals are provided for in article VIII of the constitution. Section 10 covers the procedure, which on its face does not appear to be contrary or repugnant to public policy. *850Again it should be remembered that the court is not deciding the merits of the dispute between tbe local and the International. The only issue involved is whether or not the ‘' Stay Order ’ ’ should be continued until the trial or other disposition, of the merits of the controversy (cf. Dusing v. Nuzzo, 177 Misc. 35, mod. 263 App. Div. 59; also Vaccaro v. Gentile, 138 N. Y. S. 2d 872; Cromwell v. Morrin, 91 N. Y. S. 2d 176, particularly p. 181). In view of the foregoing, the court finds that the “ Stay Order ” herein granted in Action No. 1, restraining the trustees from acting under the proclamation of emergency should be vacated, contingent, however, upon the International furnishing to the Local 36 sufficient security to cover the balances in the various bank accounts seized under the trusteeship, and on deposit in Lincoln National Bank, Liberty Bank of Buffalo, Erie County Savings Bank and Fillmore Savings and Loan Association, respectively.
Action No. 2.
In view of the court’s findings in respect to Action No. 1, the stay order granted in this action is vacated. Settle order on two days’ notice, in each action. | 02-05-2022 | [
"Regis O’Brien, J. Action No. 1 has been commenced by one Walter C. Wojcik “individually” and in his representative capacity as financial secretary-treasurer of Local 36 of the grain millers’ union, against the defendants, Sam P. Ming and Peter J. Rybka, “individually”, and in their representative capacities as president and vice-president, respectively, of the parent union, viz. ; American Federation of Grain Millers, International, affiliated with the American Federation of Labor-Congress of Industrial Organizations. Action No.",
"2 has been commenced by one Norman Hassman, “ individually ” and as president of said Local Union 36; and Sam P. Ming, “ individually ” and in his representative capacity as president of the parent union against said Walter Wojcik, and Arsenio Gonzalez, Alfred Haas, Michael Kortask and Charles Pinker, all members of Local 36. *846In Action No. 1 the plaintiff demands judgment quashing the proclamation of emergency and the establishment of a trusteeship over the affairs of Local 36. In Action No. 2 the plaintiffs pray judgment that the defendants be enjoined and restrained, permanently, from violating the terms and conditions of the proclamation of trusteeship, also from disaffiliating, or seeking to cause a disaffiliation, of Local 36; and from using, taking or otherwise interfering with the funds and assets of Local 36 and the International.",
"Action No. 1. This is an action against the International Union, which granted the local its charter. The issues involved do not constitute a labor dispute within the meaning of the provisions of either the Taft-Hartley Act (Labor Management Relations Act, 1947, 61 U. S. Stat. 136; U. S. Code, tit. 29, § 141 et seq.) or the State Labor Relations Act (Labor Law, § 700 et seq.).",
"Here, the relationship between the parties is not that of employer and employee. It is that of members to an agreement. It has long been the law of this State that the “ constitution and by-laws of an unincorporated association express the terms of a contract which define the privileges secured and the duties assumed by those who have become members.” (Polin v. Kaplan, 257 N. Y. 277, 281; Steinmiller v. McKeon, 21 N. Y. S. 2d 621, 623, affd. 261 App. Div. 899, affd. 288 N. Y. 508.) At a meeting of Local 36 held on May 24, a trusteeship was created by the International president. He proclaimed that “ after due investigation and careful consideration of the conduct of the affairs of Local 36, it was his opinion, as President of the ‘ American Federation of Grain Millers, A. F. L.-C. I. O.",
"’ that emergency action is necessary * * * in order to protect the rights and interests of Local Union No. 36 and those of the International and the local union. ’ ’ It was issued pursuant to the provisions of section 6 of article IV of the International constitution. The trusteeship in substance and effect, suspended temporarily the autonomy of the local; places its operational affairs under an executive vice-president as representative of the president; prescribes certain procedural action to be taken during the trusteeship in respect to the conduct of the affairs of the local; expressly preserves the rights and privileges of members in good standing in the local; preserves employment rights of the members; provides for an audit of the books of local since January 1, 1958 to the date of the trusteeship, and directs that a copy thereof be given to each member when completed. There are other provisions wihch it is unnecessary to mention specif*847ically, except to state that they do not appear to be unreasonable on their face. Upon delivery of the proclamation of emergency, the trusteeship immediately became effective. Mr. Ming thereupon appointed Mr. Rybka, an executive vice-president of the International, to be his representative.",
"In Action No. 1, the plaintiff secured a “ Stay Order ” which restrained all action in respect to carrying out the terms of the trusteeship. It became effective when served upon the interested parties. It did not set aside or vacate the trusteeship. Any act done or performed pursuant thereto prior to such service was not vacated or annulled thereby. They are merely held in abeyance. Subsequent acts, of course, are restrained until the decision of this motion asking an order of the court to make such stay permanent. At the time of the argument of the motion, Action No. 2 was commenced.",
"A temporary restraining order was also issued in that action restraining either party from using the funds of the local in the banks which were made parties-defendant in Action No. 1. The matters involved in Action No. 2 will be discussed later herein. Decision in Action No. 1 The court has considered the arguments and the citations submitted by the attorneys for the parties and has also made an independent research of the law which pertains to the issues involved. It is the court’s conclusion therefrom that legal authority would not sustain an order making the temporary ‘ ‘ Stay Order ’ ’ a permanent one pending the trial of the merits of the issues that may be involved. ■ Of course the decision of the motion is not a decision on the merits of the case. The issues involved should be brought to an early determination.",
"All this motion brings in issue for decision is whether or not the procedures set forth in the constitution and by-laws of the union have been followed in proclaiming the trusteeship and are such procedures on their face fair and reasonable. It should be kept in mind that an agreement (constitution, by-laws and charter, issued to the local) determines the rights and remedies of the parties. In this ease the president claimed to act pursuant to subdivision 6 of article IV of the constitution. In part, this section provides that “ The President shall have the right to declare emergencies when in his opinion Emergency Action is necessary to protect the rights and interests of the American Federation *848of Grain Millers, or any Local Union or other subordinate body or officers or members thereof. ’ ’ The proclamation in this case recites that the above-quoted section was the basis for its issuance.",
"The local disputes the existence of such an emergency and claims that the source of the president’s information was tainted. The credibility of the informant or informants is not for this court to determine on this motion. At best, if it is a justiciable issue, it would be for a trial judge to weigh. The attorney for the local argued that the president gave no specific instances upon which the emergency was founded. The attorney for the International argued that such statement was unnecessary, although many such instances existed and were considered. The court has not found nor has any case been cited in which it has been decided that such recital of facts is vital to the validity of the proclamation, and is not so holding. However, in this more enlightened age of labor relations, it seems not inadvisable to comment that the question of such necessity might not have arisen, if the International Union’s president had followed the salutary example set by the authors of the Declaration of Independence in which they proclaimed that “ a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” This they then proceeded to do in detail. Courts have repeatedly held that where the acts complained of are in conformity with the constitution and rules of the union, the court will not interfere (Nilan v. Colleran, 283 N. Y.",
"84). “ Ordinarily it is sufficient to show compliance with constitutional provisions, which, unless contrary to public policy, are the measure of the rights and duties of international and local unions and their members ” (Garcia v. Ernst, 101 N. Y. S. 2d 693, 697, citing Polin v. Kaplan, 257 N. Y. 277, 281, supra, and Ames v. Dubinsky, 5 Misc 2d 380, 407). The court pointed out in the Garcia case (supra) that the International president, under its constitution, became the prosecutor, judge and sole reviewing authority, which was against public policy. Nevertheless the court held that the facts shown did not “ warrant the issuance of a restraining order in advance of trial” (p. 698). Later and on the same page, the court states “ [u]nder all the facts and circumstances, the court is satisfied that greater damage may result from granting the motion to enjoin the continuance of the trusteeship pendente lite than can possibly result from denying it.” *849While “ [t]he courts are loathe to interfere with the internal affairs or management of any union ’ ’ they will not hesitate to do so in a proper case. (Fanara v. International Brotherhood of Teamsters, 205 Misc.",
"538, 540; Bricklayers’, Plasterers’ & Stonemasons’ Union v. Bowen, 183 N. Y. S. 855, 859.) Again returning to the procedure adopted by the International, it should be noted that the members of Local 36 in accepting its charter, agreed not to complain that “ the remedies afforded under this Constitution are inadequate ” or “ that pursuit of such remedies would be futile ” (art. VIII, § 2). Thus, the procedure afforded to the members of Local 36, to bring about a termination of the trusteeship, has been agreed by them to be fair and reasonable. What are such remedies! (a) Section 6 of article IV mandates that where ‘ ‘ Emergency Action which results in the suspension of the autonomy of a Local Union * * * it shall be administered in a manner consistent with the democratic policies of this organization, and shall be terminated by the President at the earliest possible date after the emergency, requiring the action, is over.” In the case of Reiser v. Kralstein (26 L. R. R. M. 2014) where the court granted a temporary injunction pending trial of the issues and upon which the plaintiff’s counsel stated he relied very heavily to sustain his position, it appears that the action arose in April of 1950 and the earliest possible date for an internal review of the matter would be at a general convention which would not be held until September of 1951. (b) Again referring to section 6 of article IV, if the trusteeship is not terminated by the president by his own action, within 90 days, any “ local union * * * by majority vote at a regular meeting thereof, may bequest the President to terminate the trusteeship and restore autonomy ’ ’.",
"In the event of such request, “ the President shall, * * * fully investigate such request immediately, upon receipt thereof and shall promptly conduct an appropriate hearing ’ ’. In the event the result of the hearing is a decision to continue “ a suspension of local autonomy, it shall be subject to the Appeal provisions of this Constitution” (emphasis mine). After the lapse of another sis months, if the president’s decision has been upheld on appeal, the local may again request restoration of autonomy, and pursue the same procedure. Appeals are provided for in article VIII of the constitution. Section 10 covers the procedure, which on its face does not appear to be contrary or repugnant to public policy.",
"*850Again it should be remembered that the court is not deciding the merits of the dispute between tbe local and the International. The only issue involved is whether or not the ‘' Stay Order ’ ’ should be continued until the trial or other disposition, of the merits of the controversy (cf. Dusing v. Nuzzo, 177 Misc. 35, mod. 263 App. Div. 59; also Vaccaro v. Gentile, 138 N. Y. S. 2d 872; Cromwell v. Morrin, 91 N. Y. S. 2d 176, particularly p. 181). In view of the foregoing, the court finds that the “ Stay Order ” herein granted in Action No.",
"1, restraining the trustees from acting under the proclamation of emergency should be vacated, contingent, however, upon the International furnishing to the Local 36 sufficient security to cover the balances in the various bank accounts seized under the trusteeship, and on deposit in Lincoln National Bank, Liberty Bank of Buffalo, Erie County Savings Bank and Fillmore Savings and Loan Association, respectively. Action No. 2. In view of the court’s findings in respect to Action No. 1, the stay order granted in this action is vacated.",
"Settle order on two days’ notice, in each action."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6171324/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Appeal from a judgment dismissing the complaint after plaintiff’s opening to the jury as follows: Plaintiff, a girl of eleven years of age, lived in a house owned by defendant; her parents turned on the lights and swept the halls of the house; in front of the house was a small yard separated from the sidewalk by an iron grill fence; for two years before the accident the fence had fallen over time and again and was always put back in a makeshift way by tying it with either cord or wire; defendant knew of the condition; on the day of the accident, which was a Sunday, plaintiff and her sister were returning from church; the iron fence was lying on the sidewalk; she and two other girls lifted the fence up to get it back • to its former position; while this was being done, one of the girls let go her end of the fence and plaintiff was struck by part of the fence. A jury might have found that the fence fell to the sidewalk and became an obstruction because of defendant’s failure, in the exercise of reasonable care, to have it properly secured, and that in the exercise of ordinary prudence, it should have anticipated that it was likely that, if it did fall, children might attempt to replace it and be hurt in attempting so to do. It, therefore, would be chargeable with negligence. (Tierney v. New York Dugan Bros., Inc., 288 N. Y. 16; Kunz v. City of Troy, 104 id. 344.) The question of contributory negligence would be for the jury. *773Judgment dismissing the complaint reversed on the law and a new trial granted with costs to appellant to abide the event. Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur. | 01-08-2022 | [
"Appeal from a judgment dismissing the complaint after plaintiff’s opening to the jury as follows: Plaintiff, a girl of eleven years of age, lived in a house owned by defendant; her parents turned on the lights and swept the halls of the house; in front of the house was a small yard separated from the sidewalk by an iron grill fence; for two years before the accident the fence had fallen over time and again and was always put back in a makeshift way by tying it with either cord or wire; defendant knew of the condition; on the day of the accident, which was a Sunday, plaintiff and her sister were returning from church; the iron fence was lying on the sidewalk; she and two other girls lifted the fence up to get it back • to its former position; while this was being done, one of the girls let go her end of the fence and plaintiff was struck by part of the fence. A jury might have found that the fence fell to the sidewalk and became an obstruction because of defendant’s failure, in the exercise of reasonable care, to have it properly secured, and that in the exercise of ordinary prudence, it should have anticipated that it was likely that, if it did fall, children might attempt to replace it and be hurt in attempting so to do.",
"It, therefore, would be chargeable with negligence. (Tierney v. New York Dugan Bros., Inc., 288 N. Y. 16; Kunz v. City of Troy, 104 id. 344.) The question of contributory negligence would be for the jury. *773Judgment dismissing the complaint reversed on the law and a new trial granted with costs to appellant to abide the event. Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5372181/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:18-cv-02185-LJL Document 273-63 Filed 04/06/20 Page 1 of 2
Exhibit TTTT Case 1:18-cv-02185-LJL Document 273-63 Filed 04/06/20 Page 2 of 2 | 2020-04-06 | [
"Case 1:18-cv-02185-LJL Document 273-63 Filed 04/06/20 Page 1 of 2 Exhibit TTTT Case 1:18-cv-02185-LJL Document 273-63 Filed 04/06/20 Page 2 of 2"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/176442553/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: [Diary entry: 27 October 1771] From: Washington, George To:
27. Clear and very warm. Wind Southerly. | 10-27-1771 | [
"Title: [Diary entry: 27 October 1771] From: Washington, George To: 27. Clear and very warm. Wind Southerly."
]
| https://founders.archives.gov/API/docdata/Washington/01-03-02-0001-0026-0027 | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing 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 February 25, 2008 Date of Report (Date of earliest event Reported) L & L FINANCIAL HOLDINGS, INC. (Exact name of registrant as specified in its charter) NEVADA 000-32505 91-2103949 (State of Incorporation)(Commission File Number) (I.R.S. Employer Identification No.) 720 Third Avenue, Suite# 1611, Seattle, WA 98104 (Address of principal executive offices) (Zip Code) (206) 264-8065 Registrant's Telephone Number, Including Area Code N/A (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)) Section 1- Registrant's Business and Operations To support expansion of L&L Financial Holdings, Inc. (L&L, or the company) core business of energy in China: L&L has recruited Mr. Kong Ling-Min, Senior Geological Engineer on February 20, 2008. Mr. Kong reporting to Mr. Tony Li, CEO of the company's KMC (Kun Ming Coal) subsidiary,is to supervise the on-site exploration team of the Tian-Ri Coal Mine located in the north eastern coal rich region of Yunnan Province of China. The Tian-Ri Coal Mine with a government exploration permit and a feasibility study of a coal reserve of estimated 53 million tons of high grade coal (coking coal) and of estimated $7.3 billion value (at the current market price of approx. $134 per ton of coal), is operated by KMC. KMC is registered with and approved by the Chinese government as an American (i.e. L&L) controlled and operated company. The KMC subsidiary moved to a new office of approx. 3,800 sq feet, located at 5 th Floor of Yunnan University Science & Technology Building, 59 Science-Medicine Road, Kunming City of Yunnan Province on February 22, 2008. The new office lease starts on January 21, 2008. Section 2 -Financial Information N/A Section 3 - Securities and Trading Markets N/A Section 4 - Matters Related to Accountants and Financial Statements N/A Section 5 -Corporate Governance and Management N/A Section 6 - Asset-backed Securities N/A Section 7 - Regulation FD N/A Section 8 - Other Events N/A Section 9 - Financial Statements and Exhibits N/A 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. L & L FINANCIAL HOLDINGS, INC. By: /S/ Paul Lee Date: February 25, 2008 Paul Lee, Chairman | [
"Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing 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 February 25, 2008 Date of Report (Date of earliest event Reported) L & L FINANCIAL HOLDINGS, INC. (Exact name of registrant as specified in its charter) NEVADA 000-32505 91-2103949 (State of Incorporation)(Commission File Number) (I.R.S. Employer Identification No.) 720 Third Avenue, Suite# 1611, Seattle, WA 98104 (Address of principal executive offices) (Zip Code) (206) 264-8065 Registrant's Telephone Number, Including Area Code N/A (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)) Section 1- Registrant's Business and Operations To support expansion of L&L Financial Holdings, Inc. (L&L, or the company) core business of energy in China: L&L has recruited Mr. Kong Ling-Min, Senior Geological Engineer on February 20, 2008. Mr. Kong reporting to Mr. Tony Li, CEO of the company's KMC (Kun Ming Coal) subsidiary,is to supervise the on-site exploration team of the Tian-Ri Coal Mine located in the north eastern coal rich region of Yunnan Province of China.",
"The Tian-Ri Coal Mine with a government exploration permit and a feasibility study of a coal reserve of estimated 53 million tons of high grade coal (coking coal) and of estimated $7.3 billion value (at the current market price of approx. $134 per ton of coal), is operated by KMC. KMC is registered with and approved by the Chinese government as an American (i.e. L&L) controlled and operated company. The KMC subsidiary moved to a new office of approx. 3,800 sq feet, located at 5 th Floor of Yunnan University Science & Technology Building, 59 Science-Medicine Road, Kunming City of Yunnan Province on February 22, 2008. The new office lease starts on January 21, 2008. Section 2 -Financial Information N/A Section 3 - Securities and Trading Markets N/A Section 4 - Matters Related to Accountants and Financial Statements N/A Section 5 -Corporate Governance and Management N/A Section 6 - Asset-backed Securities N/A Section 7 - Regulation FD N/A Section 8 - Other Events N/A Section 9 - Financial Statements and Exhibits N/A 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.",
"L & L FINANCIAL HOLDINGS, INC. By: /S/ Paul Lee Date: February 25, 2008 Paul Lee, Chairman"
]
| 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 |
|
SEE, Justice (dissenting). I respectfully dissent from the majority’s affirmance without opinion of the trial court’s dismissal of DecisionQuest, Inc.’s, action against Robert B. Roden, Robert J. Hayes, and Huel M. Carter on theories of breach of contract, account stated, and quantum meruit. DecisionQuest, Inc. (“DQ”), is a trial consulting firm specializing in jury research and trial-defense strategy development. A subsidiary, DQ2™, produces trial exhibits. DQ, a California corporation, is a wholly owned subsidiary of Dames & More, Inc., and operates offices in Los Angeles, Houston, New York, Boston, Chicago, Washington, D.C., and Atlanta. In 1996, Robert B. Roden, Robert J. Hayes, and Huel M. Carter (hereinafter referred to collectively as “the defendants”) were indicted in the State of Alabama for acts arising out of their practice of law while they were shareholders in the law firm, Roden, Hayes & Carter, P.C. Roden was indicted on multiple counts alleging first-degree theft of property, § 13A-8-3, Ala.Code 1975; second-degree theft of property, § 13A-8-4, Ala.Code 1975; and possession of a forged instrument, § 13A-8-6, Ala.Code 1975. Hayes and Carter were each indicted on multiple counts of first-degree theft of property, one count of second-degree theft of property, and one count alleging that they had intimidated a witness, § 13A-10-124, Ala. Code 1975. On October 29, 1996, the late David Cromwell Johnson, Roden’s criminal defense attorney, contacted Rick Fuentes, DQ’s director of trial consulting services at DQ’s office in Atlanta, about purchasing from DQ a juror profile,1 defense strategy, and trial exhibits for Roden’s upcoming criminal trial. Fuentes traveled to Birmingham to meet with Johnson and Ro-den, and with Hayes, Carter, and Hayes’s and Carter’s attorneys to discuss the type of trial-support products DQ could create for them. After the meeting, Johnson hired DQ to produce a juror profile and a defense strategy. Johnson faxed DQ instructions to bill Roden directly for DQ’s services at the address of the Roden, Hayes & Carter law firm. The juror profile describes the attitudes and beliefs of potential veniremembers with respect to a particular case. In order to create the profile in Roden’s case, DQ’s Atlanta office developed a survey instrument designed to collect data from which DQ’s analysts could then construct a model that would explain how potential jurors would evaluate the various issues to be tried by this case. DQ hired the Parker Group, an Alabama vendor, to conduct a telephone survey in Jefferson County us*92ing the survey instrument DQ provided. DQ’s Atlanta office analyzed the data it received from the Parker Group and created a profile of the Jefferson County jury pool. DQ produced a written report, and its staff made an oral presentation of results to Johnson, Roden, Hayes, and Carter. The “trial strategy” recommends the narrative or storyline DQ believes the defense should construct at trial to explain the case to the jury. DQ developed the trial strategy by evaluating how simulated jurors responded to a videotape that presented defense arguments and likely prosecution arguments. DQ first consulted with Roden’s, Hayes’s, and Carter’s attorneys to learn the facts of the case. Using this information, DQ’s Atlanta office produced a trial videotape in which a neutral presenter summarized the best potential arguments for the prosecution and for the defense. DQ hired Focus One in Jackson, Mississippi, to recruit and pay a pool of simulated jurors in Jefferson County for the trial exercise. DQ hired Merida Interactive Information Services, a Pennsylvania company, to provide the equipment and staff to run the trial exercise. On January 10, 1997, two DQ staff members traveled from Atlanta to Birmingham to participate as discussion leaders in the final phase of the trial exercise. During the trial exercise, the simulated jurors viewed the trial videotape and provided feedback about their reactions to the arguments presented by the prosecution and the defense. The simulated jurors provided much of the feedback in “real time,” using handheld computers to record their immediate reaction to the arguments. After they finished viewing the tape, the simulated jurors deliberated, much as a real jury might, about whether Roden, Hayes, and Carter were guilty. After the deliberations, DQ staff interviewed the simulated jurors about them reactions to some of the specific arguments presented on the tape. The deliberations and interviews were videotaped for subsequent detailed content analysis by DQ staff in Atlanta. After the one-day trial exercise, DQ staff in Atlanta evaluated the simulated jurors’ responses in order to create a trial strategy. DQ staff in Atlanta produced a written report that summarized the jurors’ responses and that outlined DQ’s recommended trial strategy.2 DQ staff also produced sample trial graphics. Shortly after DQ completed its evaluation of the trial exercise, three DQ staff members — Rick Fuentes, Bob Minik, and Angela Rose — traveled to Birmingham to present their results. After the presentation, Johnson, Roden, Hayes, and Carter agreed to purchase trial graphics from DQ that could be used to implement the proposed defense strategy. DQ produced the trial graphics at its Houston office and Roden, Hayes, and Carter used the graphics at their trial. On February 14, 1997, following three weeks of trial in the criminal cases against Roden, Hayes, and Carter, Roden and Hayes pleaded guilty to four misdemeanor charges: obtaining a signature by deception; making a contribution in the name of another person, in violation of the Alabama Fair Campaign Practices Act; misapplication of property; and falsifying business records. Carter pleaded guilty to two misdemeanor charges: obtaining a signature *93by deception and making a contribution in the name of another person, in violation of the Alabama Fair Campaign Practices Act. Between December 1996 and February 1997, DQ mailed Roden eight invoices totaling $101,254.16. Roden never paid DQ. On April 17, 1998, DQ sued Johnson, Ro-den, Hayes, and Carter on theories of breach of contract, account stated, and quantum meruit.3 From April 17, 1998, until February 2002, the parties filed numerous pleadings, answers, and motions with the trial court. In addition, various other parties were brought in and then subsequently dismissed from this action.4 On February 11, 2002, Hayes moved for a judgment on the pleadings. On February 13, 2002, Hayes moved to supplement his motion for a judgment on the pleadings, asserting that DQ, a California corporation, had not obtained a certificate of authority to do business in Alabama. Hayes argued that DQ was not qualified to do business in Alabama at the time of the contract, and, therefore, that under Alabama’s door-closing statute, the contract and all other agreements on which DQ bases its theories of recovery are void. On the same day, Carter moved for a judgment on the pleadings, adopting Hayes’s motion and attachments. The trial court set a hearing on the motions for February 19, 2002. After the February 19 hearing, the trial court entered the following order: “At the hearing on the various Motions for Judgment on the Pleadings this Court determined that it should continue the trial setting in this case and re-open the time for filing Amended Answers so as to allow additional affirmative defenses to be pleaded. Counsel may then obtain a new hearing for the Motions for Judgment on the Pleadings.” Subsequently, Roden moved to dismiss the action and asserted as an affirmative defense that the contract with DQ was void because when Roden and DQ entered into it, DQ was not qualified to do business in Alabama. On March 7, 2002, DQ moved to strike the defendants’ amended answers and also filed a supplemental response to their motions for a judgment on the pleadings, alleging that the contract at issue was not subject to the defendants’ affirmative defense because the contract was interstate in nature. On March 8, 2002, the trial court held a hearing on DQ’s motion to strike the defendants’ answers. At the hearing, Roden filed an affidavit stating that the agreement was entered into in Alabama and that the agreement specified that all work was to be done in Jefferson County, Alabama. He attached to the affidavit a copy of the agreement which, he asserted, showed that the work performed under the agreement was intrastate in nature. The trial court entered the following order: “The Plaintiffs Motion to Strike the Defendants’ amended answer, both written and oral, are [sic] Denied. The Motion to Dismiss filed 2/19/02 by Defendant Robert B. Roden is GRANTED. The Motion for Judgment on [the] Pleadings filed 2/13/02 by Defendant Huel M. Carter is GRANTED. The Motion of Defendant Robert J. Hayes for Judgment on the Pleadings filed 2/11/02 and Supplemental Motion of De*94fendant Robert J. Hayes for Judgment on the Pleadings filed 2/13/02 are GRANTED. Judgment is rendered in favor of all Defendants and against the Plaintiff on all issues in this case. Costs are taxed to the Plaintiff.” DQ now appeals, arguing that the transaction was an interstate transaction not subject to Alabama’s door-closing statute, § 10-2B-15.02, Ala.Code 1975. I agree; I would reverse the trial court’s dismissal of DQ’s contract action against Roden, Hayes, and Carter.5 Section 10-2B-15.02, Ala.Code 1975, bars a foreign corporation from bringing a contract action in an Alabama court unless the foreign corporation has properly registered to do business in Alabama before entering into any contract it subsequently seeks to enforce.6 “[T]he Commerce Clause, U.S. Const. Art. 1, § 8, cl. 3, [however,] precludes the application of §§ 10-2B-15.01 and 10-2B-15.02 against foreign *95corporations transacting primarily interstate business.” Community Care of America of Alabama, Inc, v. Davis, 850 So.2d 283, 287 (Ala.2002); Brown v. Pool Depot, Inc., 853 So.2d 181, 185 (Ala.2002)(acknowledging that a nonquali-fied corporation may enforce its contracts when it is engaged in interstate commerce); Stewart Machine & Eng’g Co. v. Checkers Drive In Restaurants of North America, Inc., 575 So.2d 1072, 1074 (Ala.1991)(“[B]usinesses engaged in interstate commerce are protected by the commerce clause in the United States Constitution ... and are therefore immune from the effects of the ‘door closing’ statutes .... Additionally, we note a second exception for foreign corporations whose activities in Alabama are merely incidental to a transaction of interstate business.”). A door-closing statute will not be enforced “if its enforcement in a particular ease would unduly burden interstate commerce .... ” S & H Contractors, Inc. v. A.J. Taft Coal Co., 906 F.2d 1507, 1510 (11th Cir.1990). Interstate commerce takes many forms. “ ‘[A]ll interstate commerce is not sales of goods. Importation into one state from another is the indispensable element, the test, of interstate commerce; and every negotiation, contract, trade, and dealing between citizens of different states, which contemplates and causes such importation, whether it be of good, person, or information, is a transaction of interstate commerce.’ ” Uncle Ben’s, Inc. v. Crowell, 482 F.Supp. 1149, 1154 (E.D.Ark.1980)(quoting Furst v. Brewster, 282 U.S. 493, 497, 51 S.Ct. 295, 75 L.Ed. 478 (1931)). “[F]or purposes of commerce clause analysis, interstate commerce includes ‘any activity of an intrastate nature which [is] an integral part of an overall interstate pattern or transaction.’ ” Radio WHKW, Inc. v. Yarber, 838 F.2d 1439, 1443 (5th Cir.1988)(quoting Diversacon Indus. v. National Bank of Commerce, 629 F.2d 1030, 1033 (5th Cir.1980)). This Court has consistently held that “[a] non-qualified foreign corporation is not barred from enforcing its contracts in Alabama when its activities within this state are incidental to the transaction of interstate business.” North Alabama Marine, Inc. v. Sea Ray Boats, Inc., 533 So.2d 598, 601 (Ala.1988). A foreign corporation may enforce its contracts so long as it has not “ ‘localized its business’ in the forum state,” Community Care of America, 850 So.2d at 287 (quoting Union Brokerage Co. v. Jensen, 322 U.S. 202, 210, 64 S.Ct. 967, 88 L.Ed. 1227 (1944)), and so long as it has entered the state merely “ ‘to contribute to or to conclude a unitary interstate transaction.’ ” Community Care of America, 850 So.2d at 287 (quoting Union Brokerage Co., 322 U.S. at 211, 64 S.Ct. 967). Roden, Hayes, and Carter argue that the trial court correctly found that they could void their agreement with DQ and not pay DQ for the goods and services it had already provided to them, because DQ was not qualified to do business in Alabama at the time Roden, Hayes, and Carter sought out and agreed to purchase a trial strategy from DQ. Roden, Hayes, and Carter argue that DQ conducted jury research in Alabama, using Alabama citizens and hiring Alabama firms. Roden, Hayes, and Carter further argue that their agreement with DQ states that DQ “was obligated [under the agreement] ‘to assist [Roden] and your colleagues in the preparation of the State v. Roden litigation in Jefferson County, Alabama’ [and that] [p]laintiff [DQ] promised to ‘conduct the research in Birmingham utilizing Jefferson County jurors.’ ” (Appellees’ Brief at 7-8, quoting from a letter to David Cromwell Johnson from Rick Fuentes.) Roden, Hayes, and Carter also argue that *96“the undisputed affidavit of Defendant Roden confirms that all of [DQ’s] work was to be conducted in Alabama with respect to a trial to take place in Alabama, that Plaintiffs employees came to Alabama for a number of meetings, that Jefferson County residents were surveyed, that focus groups consisting solely of Jefferson County residents were hired by [DQ], and that [DQ] was hired to determine how a typical jury in Jefferson County, Alabama, would react to various issues involved in the underlying Jefferson County trial.” (Appellees’ Brief at 9.) Roden, Hayes, and Carter, however, did not hire DQ to perform labor in Jefferson County; instead, they purchased from DQ a piece of intellectual property — a trial strategy. When an Alabama consumer purchases information from a California corporation doing business in Georgia, that transaction is an interstate transaction. The work DQ performed in Alabama to fulfill its contractual obligation to Roden, Hayes, and Carter was incidental to that interstate transaction. “ ‘[A]ny activity of an intrastate nature which [is] an integral part of ” that interstate transaction is also interstate commerce for the purpose of considering whether the Commerce Clause preempts a state’s door-closing statute. Radio WHEW, 838 F.2d at 1443. Roden, Hayes, and Carter argue that even if DQ was engaged in some interstate activity, DQ performed both interstate and intrastate activities when it created the trial strategy and DQ became subject to the door-closing statute based on its intrastate work. They cite Competitive Edge, Inc. v. Tony Moore Buick-GMC, Inc., 490 So.2d 1242, 1244-45 (Ala.Civ.App.1986), in support of the proposition that when a transaction involves both interstate and intrastate activities, “one must separate the interstate and intrastate activities and then determine whether the main or primary purpose of the contract constitutes an interstate or intrastate activity.”7 In Competitive Edge, a New Mexico advertising agency created and placed television advertising for Tony Moore Buick-GMC. Competitive Edge’s account executive met frequently with Tony Moore in Huntsville or in Decatur. Competitive Edge shot television commercials on the Moore-GMC dealership lot. Competitive Edge wrote advertising scripts based on changes in Moore GMC’s inventory. Finally, Competitive Edge negotiated air time with Huntsville television stations to broadcast Moore-GMC’s commercials. The Court of Civil Appeals recognized in Competitive Edge that “transactions in Alabama by a nonqualified foreign corporation involving no more than a sale, transportation, and delivery of materials into this state are acts of interstate commerce to which the laws of Alabama are not applicable.” 490 So.2d at 1244. The Court of Civil Appeals found, however, that Competitive Edge was distinguishable from cases involving a sale of products because Competitive Edge’s “contract [with Moore-GMC] also involved the negotiating for and procuring of air time from *97three Huntsville television stations.” 490 So.2d at 1244. The Court of Civil Appeals held that the contract in Competitive Edge was an intrastate transaction because “the primary purpose of the contract between Competitive Edge and Moore-GMC was the service which was agreed to be rendered under it, i.e.[,] the broadcasting of automobile advertisements in the local area.” 490 So.2d at 1246. Thus, although the primary purpose of the contract was the intrastate placement and broadcasting of the commercials, it is most significant for the case before us that, notwithstanding the frequent meetings between Competitive Edge’s account representative and Tony Moore in Alabama and notwithstanding that Competitive Edge shot television commercials on the Moore-GMC dealership lot in Alabama, the Court of Civil Appeals concluded that the production and transportation of the videotaped commercials was an interstate transaction. 490 So.2d at 1246. The trial strategy, embodied in the reports DQ forwarded to Roden, Hayes, and Carter, is like the videotaped commercials forwarded by Competitive Edge. It was David Cromwell Johnson and Roden, Hayes, and Carter who were to implement the trial strategy in Alabama, not DQ. Thus, while the implementation of the trial strategy was intrastate in nature, the preparation of that strategy by DQ and the forwarding of it to Roden, Hayes, and Carter was an interstate transaction. Moreover, the mere fact that DQ created a trial strategy adapted specifically to Jefferson County does not make the transaction an intrastate transaction. In Wallace Construction Co. v. Industrial Boiler Co., 470 So.2d 1151, 1152 (Ala.1985), Industrial Boiler Company, a Georgia company, designed and manufactured a boiler system to satisfy specific design requirements established by the University of Monteval-lo’s project bid specifications. This Court’s analysis of the application of the door-closing statute in Wallace Construction assumed that the sale by a foreign manufacturer to a domestic consumer of a custom-designed industrial boiler was an interstate transaction. Also in this case, DQ’s actions in Alabama do not transform its interstate sale of a trial strategy to Roden, Hayes, and Carter into an intrastate transaction. DQ’s initial meetings in Alabama with Ro-den, Hayes, and Carter, and the final presentation in Alabama of DQ’s recommended trial strategy do not constitute intrastate activities sufficient to trigger the door-closing statute because “acts such as delivering materials or soliciting business are generally not enough to constitute ‘doing business.’ ” Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1370 (Ala.1988). Also, the fact that DQ purchased from an Alabama vendor survey data about public attitudes in Jefferson County and used Mississippi and Pennsylvania vendors to assemble and to conduct portions of the trial exercise in Jefferson County does not transform the interstate sale of a trial strategy to Roden, Hayes, and Carter into an intrastate transaction. “A foreign corporation must enjoy the same access to the domestically-provided goods and services required to complete its interstate business as is enjoyed by domestic corporations.” Radio WHKW, 838 F.2d at 1445. In Radio WHEW, an Alabama radio station not qualified to do business in Mississippi sought to enforce, in Mississippi, a noncompetition agreement signed by a former employee. The trial court held that the radio station’s action was barred by Mississippi’s door-closing statute. The United States Court of Appeals for the Fifth Circuit reversed the trial court’s judgment and held that although the radio station maintained a sales office in Mississippi, purchased supplies in Mississippi, leased automobiles for its sales staff in *98Mississippi, and entered into numerous other contracts in Mississippi to sell advertising time, the radio station had engaged merely in a series of unitary transactions, and had not localized its business sufficiently to allow Mississippi’s door-closing statute to serve as a bar to the radio station’s contract action against the former employee. 838 F.2d at 1441-43. The court reasoned that although the radio station had extensive contacts with Mississippi, those contacts did not localize the radio station’s business in Mississippi because the radio station’s primary business remained the interstate broadcast of radio signals. 838 F.2d at 1443. Similarly, in Wallace Construction, this Court held that Industrial Boiler, a Georgia corporation, had not localized its business in Alabama and that the interstate sale of a boiler did not acquire an intrastate character merely because Industrial Boiler hired three to five local residents and leased construction equipment locally in order to install the boiler system at the University of Montevallo. 470 So.2d at 1152.8 This Court held that the labor performed to install the boiler was incidental to the sale of the boiler. 470 So.2d at 1155. This case is even more compelling. DQ sold Roden, Hayes, and Carter a trial strategy rather than a boiler; however, DQ did not appear in court on behalf of Roden, Hayes, and Carter to carry out the strategy. In effect, DQ sold Roden, Hayes, and Carter the “boiler,” but left it to Roden, Hayes, and Carter to find someone else to handle the installation. DQ’s sale of the trial strategy and the trial graphics to Roden, Hayes, and Carter is a unitary interstate transaction; therefore, the trial court erred when it dismissed DQ’s action on its contract seeking to compel Roden, Hayes, and Carter to pay for the trial strategy and trial graphics they purchased from DQ. Therefore, I dissent.
. DQ refers to this as a "venue evaluation.”
. Roden, Hayes, and Carter argue that DQ was hired to conduct a survey and to make a presentation to some focus groups in order to gauge potential juror attitudes. DQ presented Roden, Hayes, and Carter with much more than "survey results." For example, in one report, DQ provided Roden, Hayes, and Carter with a draft opening statement and with a list of themes that could be developed at trial.
. One of DQ’s allegations on appeal is that it was understood that its services were performed not only for Johnson’s client Roden, but also for Hayes and Carter. As a result, DQ alleges, Hayes and Carter were also parties to the agreement and are liable for its breach.
. David Cromwell Johnson is deceased and as to him the case has been dismissed.
. There is no dispute as to the appropriate standard of review in this case. While the trial court characterizes its order as one granting a motion to dismiss based on the pleadings, because both sides submitted supporting evidentiary material the motion is properly treated as one for a summary judgment. "If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Rule 12(b), Ala. R. Civ. P. Properly framed, the issue before the trial court and before this Court on appeal is whether there is a genuine issue of material fact as to whether the transaction was interstate in nature, thereby relieving DQ of the need to qualify to do business in Alabama before DQ may avail itself of Alabama’s courts. This Court reviews a summary judgment de novo. We use the same standard the trial court used to determine whether the evidence made out a genuine issue of material fact, see Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was "entitled to a judgment as a matter of law.” Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. " 'When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the non-movant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is "substantial” if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Wright[v. Wright], 654 So.2d [542] at 543 [(Ala.1995)] (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).' ” Walker v. City of Montgomery, 833 So.2d 40, 43 (Ala.2002)(quoting Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997)).
. Alabama’s door-closing statute reads, in pertinent part: "(a) A foreign corporation transacting business in this state without a certificate of authority or without complying with Sections 40-14-1 to 40-14 — 3, inclusive, 40-14— 21, or 40-14-41, may not maintain a proceeding in this state without a certificate of authority. All contracts or agreements made or entered into in this state by foreign corporations prior to obtaining a certificate of authority to transact business in this state shall be held void at the action of the foreign corporation or by any person claiming through or under the foreign corporation by virtue of the contract or agreement; but nothing in this section shall abrogate the equitable rule that he who seeks equity must do equity.” § 10-2B-15.02(a), Ala.Code 1975.
. They also cite Vines v. Romar Beach, Inc., 670 So.2d 901 (Ala.1995), for the proposition that even a single act of business carried on in furtherance of a corporation’s purpose is sufficient to bring a company under the door-closing statute. Vines actually held that the intrastate activities at issue were not incidental to the company's purpose, and that the foreign corporation had been organized for the sole purpose of doing business in Alabama. 670 So.2d at 903-04. This case is distinguishable because DQ is not in the business of conducting telephone surveys or of recruiting simulated jurors (which is why they contracted those tasks to other vendors); DQ is in the business of creating and selling trial-defense strategies.
. This case can be contrasted with Ex parte Dial Kennels of Alabama, 771 So.2d 419 (Ala.1999). In Dial Kennels, this Court found that when Dial Kennels bred greyhound puppies in Alabama, raised them for 90 days, transported the puppies out of state for training, and then returned the puppies for use in Alabama, Dial Kennels was engaged in intrastate activity. Dial Kennels is distinguishable because this Court held that the kennel localized its business by creating an ongoing dog-breeding business. 771 So.2d at 427. In the present case, DQ engaged in a one-time transaction with Roden, Hayes, and Carter. A unitary transaction in which a company does not localize its business is generally not intrastate in character. See Community Care of America, 850 So.2d at 287. Moreover in this case, DQ engaged in what, for it, constituted a series of interstate transactions in order to complete the contract with Roden, Hayes, and Carter. DQ, operating from Georgia, purchased survey data from an Alabama company; DQ also purchased services from Mississippi and Pennsylvania companies. | 07-30-2022 | [
"SEE, Justice (dissenting). I respectfully dissent from the majority’s affirmance without opinion of the trial court’s dismissal of DecisionQuest, Inc.’s, action against Robert B. Roden, Robert J. Hayes, and Huel M. Carter on theories of breach of contract, account stated, and quantum meruit. DecisionQuest, Inc. (“DQ”), is a trial consulting firm specializing in jury research and trial-defense strategy development. A subsidiary, DQ2™, produces trial exhibits. DQ, a California corporation, is a wholly owned subsidiary of Dames & More, Inc., and operates offices in Los Angeles, Houston, New York, Boston, Chicago, Washington, D.C., and Atlanta. In 1996, Robert B. Roden, Robert J. Hayes, and Huel M. Carter (hereinafter referred to collectively as “the defendants”) were indicted in the State of Alabama for acts arising out of their practice of law while they were shareholders in the law firm, Roden, Hayes & Carter, P.C. Roden was indicted on multiple counts alleging first-degree theft of property, § 13A-8-3, Ala.Code 1975; second-degree theft of property, § 13A-8-4, Ala.Code 1975; and possession of a forged instrument, § 13A-8-6, Ala.Code 1975. Hayes and Carter were each indicted on multiple counts of first-degree theft of property, one count of second-degree theft of property, and one count alleging that they had intimidated a witness, § 13A-10-124, Ala. Code 1975. On October 29, 1996, the late David Cromwell Johnson, Roden’s criminal defense attorney, contacted Rick Fuentes, DQ’s director of trial consulting services at DQ’s office in Atlanta, about purchasing from DQ a juror profile,1 defense strategy, and trial exhibits for Roden’s upcoming criminal trial.",
"Fuentes traveled to Birmingham to meet with Johnson and Ro-den, and with Hayes, Carter, and Hayes’s and Carter’s attorneys to discuss the type of trial-support products DQ could create for them. After the meeting, Johnson hired DQ to produce a juror profile and a defense strategy. Johnson faxed DQ instructions to bill Roden directly for DQ’s services at the address of the Roden, Hayes & Carter law firm. The juror profile describes the attitudes and beliefs of potential veniremembers with respect to a particular case. In order to create the profile in Roden’s case, DQ’s Atlanta office developed a survey instrument designed to collect data from which DQ’s analysts could then construct a model that would explain how potential jurors would evaluate the various issues to be tried by this case. DQ hired the Parker Group, an Alabama vendor, to conduct a telephone survey in Jefferson County us*92ing the survey instrument DQ provided.",
"DQ’s Atlanta office analyzed the data it received from the Parker Group and created a profile of the Jefferson County jury pool. DQ produced a written report, and its staff made an oral presentation of results to Johnson, Roden, Hayes, and Carter. The “trial strategy” recommends the narrative or storyline DQ believes the defense should construct at trial to explain the case to the jury. DQ developed the trial strategy by evaluating how simulated jurors responded to a videotape that presented defense arguments and likely prosecution arguments. DQ first consulted with Roden’s, Hayes’s, and Carter’s attorneys to learn the facts of the case. Using this information, DQ’s Atlanta office produced a trial videotape in which a neutral presenter summarized the best potential arguments for the prosecution and for the defense. DQ hired Focus One in Jackson, Mississippi, to recruit and pay a pool of simulated jurors in Jefferson County for the trial exercise. DQ hired Merida Interactive Information Services, a Pennsylvania company, to provide the equipment and staff to run the trial exercise. On January 10, 1997, two DQ staff members traveled from Atlanta to Birmingham to participate as discussion leaders in the final phase of the trial exercise. During the trial exercise, the simulated jurors viewed the trial videotape and provided feedback about their reactions to the arguments presented by the prosecution and the defense.",
"The simulated jurors provided much of the feedback in “real time,” using handheld computers to record their immediate reaction to the arguments. After they finished viewing the tape, the simulated jurors deliberated, much as a real jury might, about whether Roden, Hayes, and Carter were guilty. After the deliberations, DQ staff interviewed the simulated jurors about them reactions to some of the specific arguments presented on the tape. The deliberations and interviews were videotaped for subsequent detailed content analysis by DQ staff in Atlanta. After the one-day trial exercise, DQ staff in Atlanta evaluated the simulated jurors’ responses in order to create a trial strategy. DQ staff in Atlanta produced a written report that summarized the jurors’ responses and that outlined DQ’s recommended trial strategy.2 DQ staff also produced sample trial graphics. Shortly after DQ completed its evaluation of the trial exercise, three DQ staff members — Rick Fuentes, Bob Minik, and Angela Rose — traveled to Birmingham to present their results. After the presentation, Johnson, Roden, Hayes, and Carter agreed to purchase trial graphics from DQ that could be used to implement the proposed defense strategy.",
"DQ produced the trial graphics at its Houston office and Roden, Hayes, and Carter used the graphics at their trial. On February 14, 1997, following three weeks of trial in the criminal cases against Roden, Hayes, and Carter, Roden and Hayes pleaded guilty to four misdemeanor charges: obtaining a signature by deception; making a contribution in the name of another person, in violation of the Alabama Fair Campaign Practices Act; misapplication of property; and falsifying business records. Carter pleaded guilty to two misdemeanor charges: obtaining a signature *93by deception and making a contribution in the name of another person, in violation of the Alabama Fair Campaign Practices Act. Between December 1996 and February 1997, DQ mailed Roden eight invoices totaling $101,254.16. Roden never paid DQ.",
"On April 17, 1998, DQ sued Johnson, Ro-den, Hayes, and Carter on theories of breach of contract, account stated, and quantum meruit.3 From April 17, 1998, until February 2002, the parties filed numerous pleadings, answers, and motions with the trial court. In addition, various other parties were brought in and then subsequently dismissed from this action.4 On February 11, 2002, Hayes moved for a judgment on the pleadings. On February 13, 2002, Hayes moved to supplement his motion for a judgment on the pleadings, asserting that DQ, a California corporation, had not obtained a certificate of authority to do business in Alabama. Hayes argued that DQ was not qualified to do business in Alabama at the time of the contract, and, therefore, that under Alabama’s door-closing statute, the contract and all other agreements on which DQ bases its theories of recovery are void. On the same day, Carter moved for a judgment on the pleadings, adopting Hayes’s motion and attachments. The trial court set a hearing on the motions for February 19, 2002.",
"After the February 19 hearing, the trial court entered the following order: “At the hearing on the various Motions for Judgment on the Pleadings this Court determined that it should continue the trial setting in this case and re-open the time for filing Amended Answers so as to allow additional affirmative defenses to be pleaded. Counsel may then obtain a new hearing for the Motions for Judgment on the Pleadings.” Subsequently, Roden moved to dismiss the action and asserted as an affirmative defense that the contract with DQ was void because when Roden and DQ entered into it, DQ was not qualified to do business in Alabama. On March 7, 2002, DQ moved to strike the defendants’ amended answers and also filed a supplemental response to their motions for a judgment on the pleadings, alleging that the contract at issue was not subject to the defendants’ affirmative defense because the contract was interstate in nature.",
"On March 8, 2002, the trial court held a hearing on DQ’s motion to strike the defendants’ answers. At the hearing, Roden filed an affidavit stating that the agreement was entered into in Alabama and that the agreement specified that all work was to be done in Jefferson County, Alabama. He attached to the affidavit a copy of the agreement which, he asserted, showed that the work performed under the agreement was intrastate in nature. The trial court entered the following order: “The Plaintiffs Motion to Strike the Defendants’ amended answer, both written and oral, are [sic] Denied.",
"The Motion to Dismiss filed 2/19/02 by Defendant Robert B. Roden is GRANTED. The Motion for Judgment on [the] Pleadings filed 2/13/02 by Defendant Huel M. Carter is GRANTED. The Motion of Defendant Robert J. Hayes for Judgment on the Pleadings filed 2/11/02 and Supplemental Motion of De*94fendant Robert J. Hayes for Judgment on the Pleadings filed 2/13/02 are GRANTED. Judgment is rendered in favor of all Defendants and against the Plaintiff on all issues in this case. Costs are taxed to the Plaintiff.” DQ now appeals, arguing that the transaction was an interstate transaction not subject to Alabama’s door-closing statute, § 10-2B-15.02, Ala.Code 1975. I agree; I would reverse the trial court’s dismissal of DQ’s contract action against Roden, Hayes, and Carter.5 Section 10-2B-15.02, Ala.Code 1975, bars a foreign corporation from bringing a contract action in an Alabama court unless the foreign corporation has properly registered to do business in Alabama before entering into any contract it subsequently seeks to enforce.6 “[T]he Commerce Clause, U.S. Const. Art.",
"1, § 8, cl. 3, [however,] precludes the application of §§ 10-2B-15.01 and 10-2B-15.02 against foreign *95corporations transacting primarily interstate business.” Community Care of America of Alabama, Inc, v. Davis, 850 So.2d 283, 287 (Ala.2002); Brown v. Pool Depot, Inc., 853 So.2d 181, 185 (Ala.2002)(acknowledging that a nonquali-fied corporation may enforce its contracts when it is engaged in interstate commerce); Stewart Machine & Eng’g Co. v. Checkers Drive In Restaurants of North America, Inc., 575 So.2d 1072, 1074 (Ala.1991)(“[B]usinesses engaged in interstate commerce are protected by the commerce clause in the United States Constitution ... and are therefore immune from the effects of the ‘door closing’ statutes .... Additionally, we note a second exception for foreign corporations whose activities in Alabama are merely incidental to a transaction of interstate business.”).",
"A door-closing statute will not be enforced “if its enforcement in a particular ease would unduly burden interstate commerce .... ” S & H Contractors, Inc. v. A.J. Taft Coal Co., 906 F.2d 1507, 1510 (11th Cir.1990). Interstate commerce takes many forms. “ ‘[A]ll interstate commerce is not sales of goods. Importation into one state from another is the indispensable element, the test, of interstate commerce; and every negotiation, contract, trade, and dealing between citizens of different states, which contemplates and causes such importation, whether it be of good, person, or information, is a transaction of interstate commerce.’ ” Uncle Ben’s, Inc. v. Crowell, 482 F.Supp.",
"1149, 1154 (E.D.Ark.1980)(quoting Furst v. Brewster, 282 U.S. 493, 497, 51 S.Ct. 295, 75 L.Ed. 478 (1931)). “[F]or purposes of commerce clause analysis, interstate commerce includes ‘any activity of an intrastate nature which [is] an integral part of an overall interstate pattern or transaction.’ ” Radio WHKW, Inc. v. Yarber, 838 F.2d 1439, 1443 (5th Cir.1988)(quoting Diversacon Indus. v. National Bank of Commerce, 629 F.2d 1030, 1033 (5th Cir.1980)). This Court has consistently held that “[a] non-qualified foreign corporation is not barred from enforcing its contracts in Alabama when its activities within this state are incidental to the transaction of interstate business.” North Alabama Marine, Inc. v. Sea Ray Boats, Inc., 533 So.2d 598, 601 (Ala.1988). A foreign corporation may enforce its contracts so long as it has not “ ‘localized its business’ in the forum state,” Community Care of America, 850 So.2d at 287 (quoting Union Brokerage Co. v. Jensen, 322 U.S. 202, 210, 64 S.Ct. 967, 88 L.Ed.",
"1227 (1944)), and so long as it has entered the state merely “ ‘to contribute to or to conclude a unitary interstate transaction.’ ” Community Care of America, 850 So.2d at 287 (quoting Union Brokerage Co., 322 U.S. at 211, 64 S.Ct. 967). Roden, Hayes, and Carter argue that the trial court correctly found that they could void their agreement with DQ and not pay DQ for the goods and services it had already provided to them, because DQ was not qualified to do business in Alabama at the time Roden, Hayes, and Carter sought out and agreed to purchase a trial strategy from DQ.",
"Roden, Hayes, and Carter argue that DQ conducted jury research in Alabama, using Alabama citizens and hiring Alabama firms. Roden, Hayes, and Carter further argue that their agreement with DQ states that DQ “was obligated [under the agreement] ‘to assist [Roden] and your colleagues in the preparation of the State v. Roden litigation in Jefferson County, Alabama’ [and that] [p]laintiff [DQ] promised to ‘conduct the research in Birmingham utilizing Jefferson County jurors.’ ” (Appellees’ Brief at 7-8, quoting from a letter to David Cromwell Johnson from Rick Fuentes.) Roden, Hayes, and Carter also argue that *96“the undisputed affidavit of Defendant Roden confirms that all of [DQ’s] work was to be conducted in Alabama with respect to a trial to take place in Alabama, that Plaintiffs employees came to Alabama for a number of meetings, that Jefferson County residents were surveyed, that focus groups consisting solely of Jefferson County residents were hired by [DQ], and that [DQ] was hired to determine how a typical jury in Jefferson County, Alabama, would react to various issues involved in the underlying Jefferson County trial.” (Appellees’ Brief at 9.) Roden, Hayes, and Carter, however, did not hire DQ to perform labor in Jefferson County; instead, they purchased from DQ a piece of intellectual property — a trial strategy. When an Alabama consumer purchases information from a California corporation doing business in Georgia, that transaction is an interstate transaction. The work DQ performed in Alabama to fulfill its contractual obligation to Roden, Hayes, and Carter was incidental to that interstate transaction.",
"“ ‘[A]ny activity of an intrastate nature which [is] an integral part of ” that interstate transaction is also interstate commerce for the purpose of considering whether the Commerce Clause preempts a state’s door-closing statute. Radio WHEW, 838 F.2d at 1443. Roden, Hayes, and Carter argue that even if DQ was engaged in some interstate activity, DQ performed both interstate and intrastate activities when it created the trial strategy and DQ became subject to the door-closing statute based on its intrastate work. They cite Competitive Edge, Inc. v. Tony Moore Buick-GMC, Inc., 490 So.2d 1242, 1244-45 (Ala.Civ.App.1986), in support of the proposition that when a transaction involves both interstate and intrastate activities, “one must separate the interstate and intrastate activities and then determine whether the main or primary purpose of the contract constitutes an interstate or intrastate activity.”7 In Competitive Edge, a New Mexico advertising agency created and placed television advertising for Tony Moore Buick-GMC.",
"Competitive Edge’s account executive met frequently with Tony Moore in Huntsville or in Decatur. Competitive Edge shot television commercials on the Moore-GMC dealership lot. Competitive Edge wrote advertising scripts based on changes in Moore GMC’s inventory. Finally, Competitive Edge negotiated air time with Huntsville television stations to broadcast Moore-GMC’s commercials. The Court of Civil Appeals recognized in Competitive Edge that “transactions in Alabama by a nonqualified foreign corporation involving no more than a sale, transportation, and delivery of materials into this state are acts of interstate commerce to which the laws of Alabama are not applicable.” 490 So.2d at 1244. The Court of Civil Appeals found, however, that Competitive Edge was distinguishable from cases involving a sale of products because Competitive Edge’s “contract [with Moore-GMC] also involved the negotiating for and procuring of air time from *97three Huntsville television stations.” 490 So.2d at 1244. The Court of Civil Appeals held that the contract in Competitive Edge was an intrastate transaction because “the primary purpose of the contract between Competitive Edge and Moore-GMC was the service which was agreed to be rendered under it, i.e.",
"[,] the broadcasting of automobile advertisements in the local area.” 490 So.2d at 1246. Thus, although the primary purpose of the contract was the intrastate placement and broadcasting of the commercials, it is most significant for the case before us that, notwithstanding the frequent meetings between Competitive Edge’s account representative and Tony Moore in Alabama and notwithstanding that Competitive Edge shot television commercials on the Moore-GMC dealership lot in Alabama, the Court of Civil Appeals concluded that the production and transportation of the videotaped commercials was an interstate transaction. 490 So.2d at 1246. The trial strategy, embodied in the reports DQ forwarded to Roden, Hayes, and Carter, is like the videotaped commercials forwarded by Competitive Edge. It was David Cromwell Johnson and Roden, Hayes, and Carter who were to implement the trial strategy in Alabama, not DQ. Thus, while the implementation of the trial strategy was intrastate in nature, the preparation of that strategy by DQ and the forwarding of it to Roden, Hayes, and Carter was an interstate transaction.",
"Moreover, the mere fact that DQ created a trial strategy adapted specifically to Jefferson County does not make the transaction an intrastate transaction. In Wallace Construction Co. v. Industrial Boiler Co., 470 So.2d 1151, 1152 (Ala.1985), Industrial Boiler Company, a Georgia company, designed and manufactured a boiler system to satisfy specific design requirements established by the University of Monteval-lo’s project bid specifications. This Court’s analysis of the application of the door-closing statute in Wallace Construction assumed that the sale by a foreign manufacturer to a domestic consumer of a custom-designed industrial boiler was an interstate transaction.",
"Also in this case, DQ’s actions in Alabama do not transform its interstate sale of a trial strategy to Roden, Hayes, and Carter into an intrastate transaction. DQ’s initial meetings in Alabama with Ro-den, Hayes, and Carter, and the final presentation in Alabama of DQ’s recommended trial strategy do not constitute intrastate activities sufficient to trigger the door-closing statute because “acts such as delivering materials or soliciting business are generally not enough to constitute ‘doing business.’ ” Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1370 (Ala.1988). Also, the fact that DQ purchased from an Alabama vendor survey data about public attitudes in Jefferson County and used Mississippi and Pennsylvania vendors to assemble and to conduct portions of the trial exercise in Jefferson County does not transform the interstate sale of a trial strategy to Roden, Hayes, and Carter into an intrastate transaction. “A foreign corporation must enjoy the same access to the domestically-provided goods and services required to complete its interstate business as is enjoyed by domestic corporations.” Radio WHKW, 838 F.2d at 1445. In Radio WHEW, an Alabama radio station not qualified to do business in Mississippi sought to enforce, in Mississippi, a noncompetition agreement signed by a former employee.",
"The trial court held that the radio station’s action was barred by Mississippi’s door-closing statute. The United States Court of Appeals for the Fifth Circuit reversed the trial court’s judgment and held that although the radio station maintained a sales office in Mississippi, purchased supplies in Mississippi, leased automobiles for its sales staff in *98Mississippi, and entered into numerous other contracts in Mississippi to sell advertising time, the radio station had engaged merely in a series of unitary transactions, and had not localized its business sufficiently to allow Mississippi’s door-closing statute to serve as a bar to the radio station’s contract action against the former employee. 838 F.2d at 1441-43. The court reasoned that although the radio station had extensive contacts with Mississippi, those contacts did not localize the radio station’s business in Mississippi because the radio station’s primary business remained the interstate broadcast of radio signals. 838 F.2d at 1443. Similarly, in Wallace Construction, this Court held that Industrial Boiler, a Georgia corporation, had not localized its business in Alabama and that the interstate sale of a boiler did not acquire an intrastate character merely because Industrial Boiler hired three to five local residents and leased construction equipment locally in order to install the boiler system at the University of Montevallo. 470 So.2d at 1152.8 This Court held that the labor performed to install the boiler was incidental to the sale of the boiler.",
"470 So.2d at 1155. This case is even more compelling. DQ sold Roden, Hayes, and Carter a trial strategy rather than a boiler; however, DQ did not appear in court on behalf of Roden, Hayes, and Carter to carry out the strategy. In effect, DQ sold Roden, Hayes, and Carter the “boiler,” but left it to Roden, Hayes, and Carter to find someone else to handle the installation. DQ’s sale of the trial strategy and the trial graphics to Roden, Hayes, and Carter is a unitary interstate transaction; therefore, the trial court erred when it dismissed DQ’s action on its contract seeking to compel Roden, Hayes, and Carter to pay for the trial strategy and trial graphics they purchased from DQ. Therefore, I dissent.",
". DQ refers to this as a \"venue evaluation.” . Roden, Hayes, and Carter argue that DQ was hired to conduct a survey and to make a presentation to some focus groups in order to gauge potential juror attitudes. DQ presented Roden, Hayes, and Carter with much more than \"survey results.\" For example, in one report, DQ provided Roden, Hayes, and Carter with a draft opening statement and with a list of themes that could be developed at trial. . One of DQ’s allegations on appeal is that it was understood that its services were performed not only for Johnson’s client Roden, but also for Hayes and Carter. As a result, DQ alleges, Hayes and Carter were also parties to the agreement and are liable for its breach. . David Cromwell Johnson is deceased and as to him the case has been dismissed.",
". There is no dispute as to the appropriate standard of review in this case. While the trial court characterizes its order as one granting a motion to dismiss based on the pleadings, because both sides submitted supporting evidentiary material the motion is properly treated as one for a summary judgment. \"If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Rule 12(b), Ala. R. Civ.",
"P. Properly framed, the issue before the trial court and before this Court on appeal is whether there is a genuine issue of material fact as to whether the transaction was interstate in nature, thereby relieving DQ of the need to qualify to do business in Alabama before DQ may avail itself of Alabama’s courts. This Court reviews a summary judgment de novo. We use the same standard the trial court used to determine whether the evidence made out a genuine issue of material fact, see Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was \"entitled to a judgment as a matter of law.” Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. \" 'When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the non-movant to present substantial evidence creating such an issue.",
"Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is \"substantial” if it is of \"such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Wright[v. Wright], 654 So.2d [542] at 543 [(Ala.1995)] (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).",
"Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).' ” Walker v. City of Montgomery, 833 So.2d 40, 43 (Ala.2002)(quoting Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997)). . Alabama’s door-closing statute reads, in pertinent part: \"(a) A foreign corporation transacting business in this state without a certificate of authority or without complying with Sections 40-14-1 to 40-14 — 3, inclusive, 40-14— 21, or 40-14-41, may not maintain a proceeding in this state without a certificate of authority. All contracts or agreements made or entered into in this state by foreign corporations prior to obtaining a certificate of authority to transact business in this state shall be held void at the action of the foreign corporation or by any person claiming through or under the foreign corporation by virtue of the contract or agreement; but nothing in this section shall abrogate the equitable rule that he who seeks equity must do equity.” § 10-2B-15.02(a), Ala.Code 1975. .",
"They also cite Vines v. Romar Beach, Inc., 670 So.2d 901 (Ala.1995), for the proposition that even a single act of business carried on in furtherance of a corporation’s purpose is sufficient to bring a company under the door-closing statute. Vines actually held that the intrastate activities at issue were not incidental to the company's purpose, and that the foreign corporation had been organized for the sole purpose of doing business in Alabama. 670 So.2d at 903-04. This case is distinguishable because DQ is not in the business of conducting telephone surveys or of recruiting simulated jurors (which is why they contracted those tasks to other vendors); DQ is in the business of creating and selling trial-defense strategies.",
". This case can be contrasted with Ex parte Dial Kennels of Alabama, 771 So.2d 419 (Ala.1999). In Dial Kennels, this Court found that when Dial Kennels bred greyhound puppies in Alabama, raised them for 90 days, transported the puppies out of state for training, and then returned the puppies for use in Alabama, Dial Kennels was engaged in intrastate activity. Dial Kennels is distinguishable because this Court held that the kennel localized its business by creating an ongoing dog-breeding business. 771 So.2d at 427.",
"In the present case, DQ engaged in a one-time transaction with Roden, Hayes, and Carter. A unitary transaction in which a company does not localize its business is generally not intrastate in character. See Community Care of America, 850 So.2d at 287. Moreover in this case, DQ engaged in what, for it, constituted a series of interstate transactions in order to complete the contract with Roden, Hayes, and Carter. DQ, operating from Georgia, purchased survey data from an Alabama company; DQ also purchased services from Mississippi and Pennsylvania companies."
]
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Atkins, Judge: The respondent determined a deficiency in estate tax in the amount of $12,997.31, which resulted from increasing the value of one piece of real estate by the amount of $6,163.88 and the disallowance of an amount of $45,000 claimed as deductions for claims against the estate. The petitioner concedes that the respondent correctly increased the value of the parcel of real estate by $6,163.88. The only remaining issue for decision relates to the $45,000 item. In the petition no claim is made that the $45,000 represented debts of the estate. Instead, it is alleged that the value of the property included in the gross estate should be decreased by the amount of $45,000 as representing the interest of some of the decedent’s children in certain of the real estate resulting from their contributions to the purchase price thereof in that amount. FINDINGS OF FACT. Some of the facts have been stipulated and are incorporated herein by this reference. Charles W. Brickert died intestate on February 9, 1955, a resident of Oswego, Kendall County, Illinois. The estate was duly filed for probate in the County Court of Kendall County, and Gladys Brickert, daughter of the decedent, was appointed and duly qualified as the administratrix of the estate. The petitioner’s Federal estate tax return was filed with the district director of internal revenue, Chicago, Illinois, on April 16, 1956. In addition to Gladys, the other surviving children of the decedent were Fred, Robert, John, and Charles. These five children were the heirs at law of the decedent. Prior to 1926 the decedent and his wife, Martha, began acquiring real property in the area surrounding Chicago, Illinois. Some of these properties were retained by them, but some were traded for other properties. In 1927 they acquired two pieces of real estate. One of such properties acquired in 1927 was located in Argo and will be referred to as the Argo property. It was acquired in their joint names and consisted of a three-story building containing seven flats and a store.1 The purchase price of this property was approximately $45,000 and was acquired in a trade, the purchasers giving two mortgages totaling $25,000. The decedent and his family lived in one of the flats, and income was derived from rentals of the remainder of the property. The amount of rental received in 1927 was about $160 per month, but the amount' varied due to vacancies at times. The other property acquired in 1927 was located in Oswego and will be referred to as the Oswego property.2 It consisted of about 22 acres of land. It was acquired in the name of the decedent alone. The record does not show the purchase price of this property or the manner of payment of the purchase price. Fred graduated from high school in 1928 at the age of about 18 and commenced working. Fie continued to live with his parents and took most of his meals there until he was married in 1945. During that period he turned over all of his earnings to his father except about $5 per week which he kept for spending money. Flis wages in 1928 were $18 a week from May to December. At that time his wages were increased to $23 a week and that continued for about 4 years, when he was paid $40 to $45 a week. That continued for about 4 years, at which time his salary was raised to about $55 a week and that continued for a few years, at which time his wages were increased to $60 or $65 a week. Charles was about a year younger than Fred. He also lived with the family and received all or most of his meals there. He started to work in May 1930, and earned about $18 a week for 2 or 3 years. Flis earnings thereafter were about $40 per week until his entry into the Army in 1942. Fie also turned over his earnings tq his parents. Charles died a few months before the hearing in the instant case. Gladys graduated from high school in 1930 and worked froto that time until about 1940. She earned from $10 to $12 a week until about 1932 or 1933. At that time she began receiving about $15 to $20 a week and this continued until 1940. She also worked a while in 1942 and received from $25 to $28 a week. Gladys also lived with‘her parents and turned over her earnings to them. There were three other Brickert children, Robert, John, and William, all of whom lived with their parents. William drowned in 1940 at the age of 13. Robert started high school in 1930 and graduated in 1936. He started working in 1936 and was married in 1939. During the period from 1936 to 1939, he turned over his earnings to his parents. John, the youngest of the surviving children, was bom about 1923. During the 4 years he was in high school he worked after school hours and when he graduated in 1940 he took a regular job. He gave all his earnings to his mother until he entered the military service in January 1943. Prior to 1927, the decedent worked as a carpenter and for a while in 1927 he operated a bakery shop, but thereafter he was not employed and earned no income. None of the children ever paid their parents any amount specifically for board and lodging. The food, clothing, and other necessary expenses for the members of the family were paid for out of the money which was earned by the children and turned over to their parents and out of any income available from investments. The money available after payment of the family expenses was used to pay off mortgages on property which had been purchased or in the purchase of additional properties. After the purchases above referred to, no further properties were purchased until 1938. The spending of money for entertainment and automobiles and the like was discouraged by the decedent and his wife. The purchase of real estate was the common everyday talk in the household. Specific purchases were discussed with the children. The children would examine certain properties and express their opinions as to whether they should be purchased. The properties were purchased with small downpayments and monthly installments. None of the children knew how much of his earnings was applied toward the purchase of any particular property, and there was never any discussion as to how much would be paid by each child, except that in determining whether to buy property the family discussed the availability of the earnings of the children. There was never any decision that any particular child should have any specified interest in any particular property. Properties were always purchased in the name of the decedent or the decedent and his wife as a matter of course and there was never any discussion about tbe manner of taking title. The children always assumed that title would be taken in the names of their parents. From 1938 to 1944, the decedent and his wife made six purchases of real estate, taking title in their joint names. These properties, together with the dates of purchase, the cost where shown, and the value thereof as stated in the estate tax return are as follows: [[Image here]] There was a small house on each of two of these properties which was rented and produced some income. The Hadley property was used for growing crops such as beans and corn. Occasionally the decedent and his wife sold properties. In connection therewith the children were consulted but did not sign any documents of sale or quitclaim deeds. The proceeds of such sales were used in purchasing other property. The decedent’s wife, Martha, died in 1945, at which time no member of the family raised any question as to the legal title to the property or who owned the property. Upon the decedent’s death in 1955 the children by mutual agreement divided up the property among themselves. Fred took the Argo property, Gladys took the Oswego property, Charles took the Binder property, and Robert took the Batavia property. Upon the probate of the estate in the County Court of Kendall County, claims were made against the estate by Fred, Charles, and Gladys in the respective amounts of $20,000, $15,000, and $10,000, based upon the assertion that these amounts had been loaned to the decedent in his lifetime for the purchase of property. Gladys, the executrix, allowed these claims and, since there was no objection, the Probate Court approved her action. However, such court, in determining the State inheritance tax due, disallowed as deductions the amounts of the claims of Fred, Charles, and Gladys in the total amount of $45,000 because of insufficient proof that these had constituted loans to the decedent. The Federal estate tax return filed on behalf of the estate of the decedent showed a gross estate in the amount of $151,633.31. This consisted of real estate valued at $99,505.60, stock and bonds in the amount of $1,512.27, deposits in savings and loan associations in tlie amount of $7,713.78, a life insurance policy in tbe face amount of $5,475 (and dividend of $7.26), and deposits in savings and loan associations in joint account with Gladys (and in one case with Charles) in the total amount of $37,419.40. In such return deductions were claimed for expenses and debts in the amount of $51,751.90, which included the above claims of Fred, Charles, and Gladys in the total amount of $45,000 represented as having been loaned by them to the decedent in his lifetime. The respondent in the notice of deficiency disallowed these claims of the children totaling $45,000 on the ground that they were not contracted, bona fide, for an adequate and full consideration in money or money’s worth and hence did not constitute valid deductions under section 2053 of the Internal Eevenue Code of 1954. The earnings of Fred, Charles, and Gladys which were contributed to the decedent and his wife were not intended to be, and were not, for any distinct interest in or definite parts of any of the properties to which the decedent held legal title at the time of his death. The decedent was the owner of such properties. OPINION. As indicated, hereinabove, the petitioner does not now claim that there were deductible claims against the estate in the amount of $45,000. Instead, it contends that three of decedent’s children, Fred, Charles, and Gladys, contributed the respective amounts of $20,000, $15,000, and $10,000 of the purchase price of five properties to which the decedent and his wife took title and which were included in the decedent’s gross estate for estate tax purposes; that resulting trusts arose with respect to such properties in favor of the children in proportion to the shares of the purchase money advanced by them; and that $45,000 should therefore be eliminated from the gross estate of the decedent.3 The properties referred to are those described as Argo, Batavia, Montgomery, Binder, and Hadley, which were included in the gross estate at a total valuation of $56,406, but which the petitioner now concedes had a value of $62,569.88. All the real estate in question was located in Illinois and the property law of that State is applicable in determining what interest, if any, the children may have had in such property. Lyeth v. Hoey, 305 U.S. 188, and Helvering v. Stuart, 317 U.S. 154. A resulting trust arises by operation of law and is founded on the presumed intent of the parties ascertained from their acts and attendant facts and circumstances, and usually comes into existence where one person furnishes the consideration, or an aliquot part thereof, for the purchase of property while the title is taken in the name of another. Tilley v. Shippee, 12 Ill. 2d 616, 147 N.E. 2d 347; Hanley v. Hanley, 14 Ill. 2d 566, 152 N.E. 2d 879; and West v. Scott, 6 Ill. 2d 167, 128 N.E. 2d 734. However, it is well established by decisions of the courts of Illinois that where several persons contribute to the purchase of real estate it is essential, in order to create a resulting trust, that it shall appear that the sums severally contributed were for some distinct interest or some definite part of the estate. Kinsch v. Kinsch, 348 Ill. 446, 181 N.E. 315; Kedas v. Kedas, 342 Ill. 630, 174 N.E. 894; Brooks v. Gretz, 323 Ill. 161, 153 N.E. 643; and Reed v. Reed, 135 Ill. 482, 25 N.E. 1095. In Reed v. Reed, supra, it was stated: A trust will not result to one who pays a part only of the purchase money of land conveyed to another, unless it be some definite part of the whole consideration, as one-half, one-third, or the like; and the trust can only arise from the original transaction at the time it takes place, and at no other time. * * * The cases of Kedas v. Kedas, supra; Brooks v. Gretz, supra; and Rinsch v. Rinsch, supra, all involved children’s contributions to common family funds which were alleged to have been used by parents to purchase properties, but it was held in those cases that there were no resulting trusts since it was not shown that any definite part of the purchase price of any particular property was furnished by the children or that they received any distinct interest in the property. While it may not be necessary to show the precise amount of the contribution of each (see Merschat v. Merschat, 1 Ill. App. 2d 429, 117 N.E. 2d 868), there must be evidence of an intent that the contributor should take some specific interest in the property. In the instant case the evidence does not show any definite part of the purchase price of any of the properties which was furnished by any one or all of the children. Each of the children who testified stated that none of them knew how much of his earnings was invested in any particular property. The purchase prices of some of the properties are not shown. The children did contribute substantially all their earnings to their parents, and from these funds and from income from investments of the parents, the parents paid the family expenses, paid off the mortgage on the Argo property, and paid for the other properties purchased from 1938 to 1944. The children testified that there was never any question that title was to be taken in the names of their father and mother. While they testified to the effect that title was so taken for convenience in that it was the simplest way to handle the matter, the conclusion is inescapable from a consideration of the record as a whole that there was no intention that the children, or any one of them, should take any specific interest in any particular property. It may be added that while Fred testified that the $25,000 mortgage indebtedness on the Argo property was paid largely from his earnings, that property had been purchased by his parents before he started to work and he furnished no part of the purchase price at the time of such purchase. From a consideration of the whole record, we think it must be concluded that, in turning over their earnings to their parents, the intention of the children was to permit their parents to do with the funds as the parents should determine. It is true that the children were consulted with respect to purchases of property and that in a general sense the purchases were a family project, but the fact remains that there is no evidence to show an intention that the children, or any one of them, should have any specific interest in the properties during the lifetimes of their parents. Bather, it seems to us that the children were satisfied to permit their parents to have the full interest in the property during the parents’ lifetimes and to wait until the death of their parents to receive any interest in any of the particular properties. This was, indeed, what actually happened. When the mother died in 1945, no question was raised about any interest of the children in the property. Furthermore, in the Probate Court no claim was made of any specific interest in any particular property by any of the children. Instead, three of the children made claims against the estate on the ground that money had been loaned to their father during his lifetime. We think these facts are corroborative of our conclusion that there was no intention that during the lifetimes of the parents the children should have any interest in the properties. Since the petitioner has not shown that there were any resulting trusts in favor of the children with respect to any of the properties which were included in the decedent’s gross estate, the respondent’s determination is approved. Decision will be entered for the respondent. The testimony of the witnesses is contradictory and confusing. At times the three-story, seven flat, property is referred to by the witnesses as the Oswego property. However, from the estate tas return, item #1 of Schedule A, it seems clear that this property was located at Argo, and hence it will be referred to as the Argo property. The testimony of the witnesses with respect to this property is confusing. It appears that the witnesses sometimes refer to this as the Aurora property, but since it is described in the estate tax return, item #3, Schedule A, as being located in Oswego, it will be referred to as the Oswego property. ' ' Section 2033 of the Internal Revenue Code of 1954 provides for the Inclusion In the gross estate of the value of all property to the extent of the interest therein of the decedent at the time of his death. | 01-16-2020 | [
"Atkins, Judge: The respondent determined a deficiency in estate tax in the amount of $12,997.31, which resulted from increasing the value of one piece of real estate by the amount of $6,163.88 and the disallowance of an amount of $45,000 claimed as deductions for claims against the estate. The petitioner concedes that the respondent correctly increased the value of the parcel of real estate by $6,163.88. The only remaining issue for decision relates to the $45,000 item. In the petition no claim is made that the $45,000 represented debts of the estate. Instead, it is alleged that the value of the property included in the gross estate should be decreased by the amount of $45,000 as representing the interest of some of the decedent’s children in certain of the real estate resulting from their contributions to the purchase price thereof in that amount. FINDINGS OF FACT. Some of the facts have been stipulated and are incorporated herein by this reference. Charles W. Brickert died intestate on February 9, 1955, a resident of Oswego, Kendall County, Illinois.",
"The estate was duly filed for probate in the County Court of Kendall County, and Gladys Brickert, daughter of the decedent, was appointed and duly qualified as the administratrix of the estate. The petitioner’s Federal estate tax return was filed with the district director of internal revenue, Chicago, Illinois, on April 16, 1956. In addition to Gladys, the other surviving children of the decedent were Fred, Robert, John, and Charles. These five children were the heirs at law of the decedent. Prior to 1926 the decedent and his wife, Martha, began acquiring real property in the area surrounding Chicago, Illinois. Some of these properties were retained by them, but some were traded for other properties. In 1927 they acquired two pieces of real estate.",
"One of such properties acquired in 1927 was located in Argo and will be referred to as the Argo property. It was acquired in their joint names and consisted of a three-story building containing seven flats and a store.1 The purchase price of this property was approximately $45,000 and was acquired in a trade, the purchasers giving two mortgages totaling $25,000. The decedent and his family lived in one of the flats, and income was derived from rentals of the remainder of the property.",
"The amount of rental received in 1927 was about $160 per month, but the amount' varied due to vacancies at times. The other property acquired in 1927 was located in Oswego and will be referred to as the Oswego property.2 It consisted of about 22 acres of land. It was acquired in the name of the decedent alone. The record does not show the purchase price of this property or the manner of payment of the purchase price. Fred graduated from high school in 1928 at the age of about 18 and commenced working. Fie continued to live with his parents and took most of his meals there until he was married in 1945. During that period he turned over all of his earnings to his father except about $5 per week which he kept for spending money.",
"Flis wages in 1928 were $18 a week from May to December. At that time his wages were increased to $23 a week and that continued for about 4 years, when he was paid $40 to $45 a week. That continued for about 4 years, at which time his salary was raised to about $55 a week and that continued for a few years, at which time his wages were increased to $60 or $65 a week. Charles was about a year younger than Fred. He also lived with the family and received all or most of his meals there. He started to work in May 1930, and earned about $18 a week for 2 or 3 years. Flis earnings thereafter were about $40 per week until his entry into the Army in 1942. Fie also turned over his earnings tq his parents. Charles died a few months before the hearing in the instant case.",
"Gladys graduated from high school in 1930 and worked froto that time until about 1940. She earned from $10 to $12 a week until about 1932 or 1933. At that time she began receiving about $15 to $20 a week and this continued until 1940. She also worked a while in 1942 and received from $25 to $28 a week. Gladys also lived with‘her parents and turned over her earnings to them. There were three other Brickert children, Robert, John, and William, all of whom lived with their parents.",
"William drowned in 1940 at the age of 13. Robert started high school in 1930 and graduated in 1936. He started working in 1936 and was married in 1939. During the period from 1936 to 1939, he turned over his earnings to his parents. John, the youngest of the surviving children, was bom about 1923. During the 4 years he was in high school he worked after school hours and when he graduated in 1940 he took a regular job. He gave all his earnings to his mother until he entered the military service in January 1943. Prior to 1927, the decedent worked as a carpenter and for a while in 1927 he operated a bakery shop, but thereafter he was not employed and earned no income. None of the children ever paid their parents any amount specifically for board and lodging.",
"The food, clothing, and other necessary expenses for the members of the family were paid for out of the money which was earned by the children and turned over to their parents and out of any income available from investments. The money available after payment of the family expenses was used to pay off mortgages on property which had been purchased or in the purchase of additional properties. After the purchases above referred to, no further properties were purchased until 1938. The spending of money for entertainment and automobiles and the like was discouraged by the decedent and his wife. The purchase of real estate was the common everyday talk in the household. Specific purchases were discussed with the children. The children would examine certain properties and express their opinions as to whether they should be purchased.",
"The properties were purchased with small downpayments and monthly installments. None of the children knew how much of his earnings was applied toward the purchase of any particular property, and there was never any discussion as to how much would be paid by each child, except that in determining whether to buy property the family discussed the availability of the earnings of the children. There was never any decision that any particular child should have any specified interest in any particular property. Properties were always purchased in the name of the decedent or the decedent and his wife as a matter of course and there was never any discussion about tbe manner of taking title.",
"The children always assumed that title would be taken in the names of their parents. From 1938 to 1944, the decedent and his wife made six purchases of real estate, taking title in their joint names. These properties, together with the dates of purchase, the cost where shown, and the value thereof as stated in the estate tax return are as follows: [[Image here]] There was a small house on each of two of these properties which was rented and produced some income. The Hadley property was used for growing crops such as beans and corn. Occasionally the decedent and his wife sold properties. In connection therewith the children were consulted but did not sign any documents of sale or quitclaim deeds. The proceeds of such sales were used in purchasing other property. The decedent’s wife, Martha, died in 1945, at which time no member of the family raised any question as to the legal title to the property or who owned the property.",
"Upon the decedent’s death in 1955 the children by mutual agreement divided up the property among themselves. Fred took the Argo property, Gladys took the Oswego property, Charles took the Binder property, and Robert took the Batavia property. Upon the probate of the estate in the County Court of Kendall County, claims were made against the estate by Fred, Charles, and Gladys in the respective amounts of $20,000, $15,000, and $10,000, based upon the assertion that these amounts had been loaned to the decedent in his lifetime for the purchase of property. Gladys, the executrix, allowed these claims and, since there was no objection, the Probate Court approved her action. However, such court, in determining the State inheritance tax due, disallowed as deductions the amounts of the claims of Fred, Charles, and Gladys in the total amount of $45,000 because of insufficient proof that these had constituted loans to the decedent. The Federal estate tax return filed on behalf of the estate of the decedent showed a gross estate in the amount of $151,633.31.",
"This consisted of real estate valued at $99,505.60, stock and bonds in the amount of $1,512.27, deposits in savings and loan associations in tlie amount of $7,713.78, a life insurance policy in tbe face amount of $5,475 (and dividend of $7.26), and deposits in savings and loan associations in joint account with Gladys (and in one case with Charles) in the total amount of $37,419.40. In such return deductions were claimed for expenses and debts in the amount of $51,751.90, which included the above claims of Fred, Charles, and Gladys in the total amount of $45,000 represented as having been loaned by them to the decedent in his lifetime. The respondent in the notice of deficiency disallowed these claims of the children totaling $45,000 on the ground that they were not contracted, bona fide, for an adequate and full consideration in money or money’s worth and hence did not constitute valid deductions under section 2053 of the Internal Eevenue Code of 1954.",
"The earnings of Fred, Charles, and Gladys which were contributed to the decedent and his wife were not intended to be, and were not, for any distinct interest in or definite parts of any of the properties to which the decedent held legal title at the time of his death. The decedent was the owner of such properties. OPINION. As indicated, hereinabove, the petitioner does not now claim that there were deductible claims against the estate in the amount of $45,000. Instead, it contends that three of decedent’s children, Fred, Charles, and Gladys, contributed the respective amounts of $20,000, $15,000, and $10,000 of the purchase price of five properties to which the decedent and his wife took title and which were included in the decedent’s gross estate for estate tax purposes; that resulting trusts arose with respect to such properties in favor of the children in proportion to the shares of the purchase money advanced by them; and that $45,000 should therefore be eliminated from the gross estate of the decedent.3 The properties referred to are those described as Argo, Batavia, Montgomery, Binder, and Hadley, which were included in the gross estate at a total valuation of $56,406, but which the petitioner now concedes had a value of $62,569.88.",
"All the real estate in question was located in Illinois and the property law of that State is applicable in determining what interest, if any, the children may have had in such property. Lyeth v. Hoey, 305 U.S. 188, and Helvering v. Stuart, 317 U.S. 154. A resulting trust arises by operation of law and is founded on the presumed intent of the parties ascertained from their acts and attendant facts and circumstances, and usually comes into existence where one person furnishes the consideration, or an aliquot part thereof, for the purchase of property while the title is taken in the name of another. Tilley v. Shippee, 12 Ill. 2d 616, 147 N.E.",
"2d 347; Hanley v. Hanley, 14 Ill. 2d 566, 152 N.E. 2d 879; and West v. Scott, 6 Ill. 2d 167, 128 N.E. 2d 734. However, it is well established by decisions of the courts of Illinois that where several persons contribute to the purchase of real estate it is essential, in order to create a resulting trust, that it shall appear that the sums severally contributed were for some distinct interest or some definite part of the estate. Kinsch v. Kinsch, 348 Ill. 446, 181 N.E. 315; Kedas v. Kedas, 342 Ill. 630, 174 N.E. 894; Brooks v. Gretz, 323 Ill. 161, 153 N.E. 643; and Reed v. Reed, 135 Ill. 482, 25 N.E. 1095. In Reed v. Reed, supra, it was stated: A trust will not result to one who pays a part only of the purchase money of land conveyed to another, unless it be some definite part of the whole consideration, as one-half, one-third, or the like; and the trust can only arise from the original transaction at the time it takes place, and at no other time. * * * The cases of Kedas v. Kedas, supra; Brooks v. Gretz, supra; and Rinsch v. Rinsch, supra, all involved children’s contributions to common family funds which were alleged to have been used by parents to purchase properties, but it was held in those cases that there were no resulting trusts since it was not shown that any definite part of the purchase price of any particular property was furnished by the children or that they received any distinct interest in the property.",
"While it may not be necessary to show the precise amount of the contribution of each (see Merschat v. Merschat, 1 Ill. App. 2d 429, 117 N.E. 2d 868), there must be evidence of an intent that the contributor should take some specific interest in the property. In the instant case the evidence does not show any definite part of the purchase price of any of the properties which was furnished by any one or all of the children.",
"Each of the children who testified stated that none of them knew how much of his earnings was invested in any particular property. The purchase prices of some of the properties are not shown. The children did contribute substantially all their earnings to their parents, and from these funds and from income from investments of the parents, the parents paid the family expenses, paid off the mortgage on the Argo property, and paid for the other properties purchased from 1938 to 1944. The children testified that there was never any question that title was to be taken in the names of their father and mother. While they testified to the effect that title was so taken for convenience in that it was the simplest way to handle the matter, the conclusion is inescapable from a consideration of the record as a whole that there was no intention that the children, or any one of them, should take any specific interest in any particular property. It may be added that while Fred testified that the $25,000 mortgage indebtedness on the Argo property was paid largely from his earnings, that property had been purchased by his parents before he started to work and he furnished no part of the purchase price at the time of such purchase. From a consideration of the whole record, we think it must be concluded that, in turning over their earnings to their parents, the intention of the children was to permit their parents to do with the funds as the parents should determine.",
"It is true that the children were consulted with respect to purchases of property and that in a general sense the purchases were a family project, but the fact remains that there is no evidence to show an intention that the children, or any one of them, should have any specific interest in the properties during the lifetimes of their parents. Bather, it seems to us that the children were satisfied to permit their parents to have the full interest in the property during the parents’ lifetimes and to wait until the death of their parents to receive any interest in any of the particular properties. This was, indeed, what actually happened. When the mother died in 1945, no question was raised about any interest of the children in the property.",
"Furthermore, in the Probate Court no claim was made of any specific interest in any particular property by any of the children. Instead, three of the children made claims against the estate on the ground that money had been loaned to their father during his lifetime. We think these facts are corroborative of our conclusion that there was no intention that during the lifetimes of the parents the children should have any interest in the properties. Since the petitioner has not shown that there were any resulting trusts in favor of the children with respect to any of the properties which were included in the decedent’s gross estate, the respondent’s determination is approved.",
"Decision will be entered for the respondent. The testimony of the witnesses is contradictory and confusing. At times the three-story, seven flat, property is referred to by the witnesses as the Oswego property. However, from the estate tas return, item #1 of Schedule A, it seems clear that this property was located at Argo, and hence it will be referred to as the Argo property. The testimony of the witnesses with respect to this property is confusing. It appears that the witnesses sometimes refer to this as the Aurora property, but since it is described in the estate tax return, item #3, Schedule A, as being located in Oswego, it will be referred to as the Oswego property. ' ' Section 2033 of the Internal Revenue Code of 1954 provides for the Inclusion In the gross estate of the value of all property to the extent of the interest therein of the decedent at the time of his death."
]
| https://www.courtlistener.com/api/rest/v3/opinions/4479289/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 32.1 CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with the Annual Report on Form 10-K of ADDvantage Technologies Group, Inc. (the “Company”) for the year ended September 30, 2015, as filed with the Securities and Exchange Commission on the date hereof (the “Report”) I, David L. Humphrey, the Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. /s/ David L. Humphrey Name:David L. Humphrey Title:President and Chief Executive Officer Date:December 15, 2015 | [
"Exhibit 32.1 CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with the Annual Report on Form 10-K of ADDvantage Technologies Group, Inc. (the “Company”) for the year ended September 30, 2015, as filed with the Securities and Exchange Commission on the date hereof (the “Report”) I, David L. Humphrey, the Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. /s/ David L. Humphrey Name:David L. Humphrey Title:President and Chief Executive Officer Date:December 15, 2015"
]
| 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 |
|
IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE January 22, 2013 Session
DAVID D. CLARK, JR. v. ASHLYN COOPER
Appeal from the Circuit Court for Jefferson County No. 22821 Ben Hooper, II, Judge
No. E2012-00684-COA-R3-CV-FILED-March 18, 2013
This appeal arises from a dispute involving custody of a child. David D. Clark, Jr. (“Father”) and Ashlyn Cooper (“Mother”) voluntarily gave custody of their minor child (“the Child”) to the Child’s paternal grandparents. Mother later sought to alter custody of the Child through the Juvenile Court for Jefferson County (“the Juvenile Court”). The Juvenile Court denied Mother’s motions. Mother filed a motion for a new hearing, which also was denied. The Juvenile Court, when denying Mother’s motion for a new hearing, described the matter as a dependency case despite earlier classifying it as a custody case. Mother appealed to the Circuit Court for Jefferson County (“the Trial Court”), which denied Mother’s appeal. The Trial Court held that the action was, in fact, a custody matter, and therefore, Mother’s appeal from Juvenile Court, if any, should have been to the Tennessee Court of Appeals. Mother appeals. We hold that, while the Trial Court correctly held that this was a custody matter and that it therefore lacked subject matter jurisdiction to hear Mother’s appeal, it should have transferred her appeal to this Court rather than simply deny the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated; Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D . S USANO, J R., P.J., and J OHN W. M CC LARTY, J., joined.
Franz F. Springmann, Sr., Sevierville, Tennessee, for the appellant, Ashlyn Cooper.
Felisha B. White, Seymour, Tennessee, for the appellee, David D. Clark, Jr. OPINION
Background
Some years ago, Father filed an action in Juvenile Court to establish paternity of the Child. Father’s paternity was established. After a number of additional filings, Mother and Father entered into an agreed order in 2008 whereby custody of the Child was given to the Child’s paternal grandparents.
Mother later filed a motion for a hearing. In September 2009, the Juvenile Court entered an order denying Mother’s motion. Germane to the issue on appeal, the Juvenile Court stated in its order on that motion that the action pending before the court was not a dependency and neglect action. Rather, the Juvenile Court explained, “[t]he Court finds this is a visitation/custody dispute and has been one from its inception.”
Mother filed additional motions afterwards: a motion for return of custody, motion for emergency custody, and motion for change in visitation. After a hearing, the Juvenile Court by its February 2010 order declined to grant Mother’s request for a change in custody.1 Mother subsequently filed her motion to set side and motion for new hearing. In her motion, Mother argued that the guardian ad litem had actively participated in the hearing contrary to Supreme Court rule 40(a). Mother asserted that this tainted the proceedings and that the order emanating from the hearing should be stricken.
In January 2011, following another hearing2 , the Juvenile Court entered an order denying Mother’s motion to set aside and for a new hearing, stating in relevant part:
[Mother’s] quoting and relying on Rule 40A is in error. Rule 40A appointments are to be utilized in custody cases involving “...divorce, paternity, domestic violence, contested adoptions, and contested private guardianship cases.” None of those issues were/are involved in this case. When the father and the mother voluntarily entered into an agreed order divesting themselves of legal and physical custody of the child, this case stopped being merely a custody case and became a dependency case. Rule
1 The record does not contain Mother’s motions, but, we glean from the Juvenile Court’s order that Mother alleged that her health and overall situation had improved such as to cause a material change in circumstances. 2 By this stage of the case, Mother had retained new counsel, the attorney now representing her on appeal.
-2- 40A was and is simply not applicable in the proceedings held on January 21, 2010. (Note: the respondent misquotes Rule 40A as Rule 40(a).) (emphasis added).
Thus, the Juvenile Court contradicted its 2009 characterization of this case as a custody matter, stating that this actually was a “dependency case.”
Mother appealed to the Trial Court. Father filed a motion to dismiss. The Trial Court conducted a hearing regarding Mother’s appeal in January 2012. In March 2012, the Trial Court entered an order denying Mother’s appeal, holding that this was, in fact, a custody matter which should have been appealed to the Tennessee Court of Appeals rather than a dependency case in which the appeal would have been to the Trial Court. The Trial Court incorporated the transcript of the January 2012 proceedings into its order, and we quote from the Trial Court’s reasoning in relevant part:
Okay. I think one thing that comes to my mind is I don’t think it is really material to the true focus of this case what the guardian ad litem may have done or didn’t do. And apparently there are some situations where he can do what he did and there are some where he cannot.
And I don’t know, maybe - - I’m trying to figure out what really happened here. And, Ms. White, you are the only one that was there, other than the parties. It seems like that, and I want to be very careful about what I say, but sometimes you have got to say it, that maybe Judge Bell may have felt like somebody was saying, you know, you mishandled this matter by letting the guardian ad litem do what he did, and then he is really focused on trying to say, well, not really, because this is a dependency case.
Now, it is without a doubt he clearly ruled that this was a custody case at one point in time. That was in 2009. And it can’t be any clearer.
But then he - - well, I don’t know whether he reversed himself, but he is saying that there has been a transformation take place, all of a sudden this has become a dependency action.
I can’t see, for the life of me, how it can be said that an agreed order signed by a judge in a custody case turns it into a dependency and neglect case or maybe just dependency. No judge is going to sign an order that creates a situation that is such that people are entitled to get relief through our judicial system. The other word, the neglect, nobody would sign an order, an agreed
-3- order at that, that would then create a neglect situation. You know, it doesn’t follow through. There is something amiss here.
I think maybe I have tried to poorly explain my thinking on the matter. And I’m really - - you know, I don’t know what was in somebody’s mind at the time this order went down January 20, 2011.
I just in good conscience cannot find that this is anything other than just a custody case. You know, he was so emphatic about it. And that is what it remains.
Mother timely filed an appeal of the Trial Court’s March 2012 order to this Court.
Discussion
Though not stated exactly as such, Mother raises one issue on appeal: whether the Trial Court erred in denying her appeal on the basis that her action was for custody and, therefore, the Trial Court lacked subject matter jurisdiction to hear her appeal.
Our review is de novo upon the record, accompanied by a presumption of correctness of the findings of fact of the trial court, unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court's conclusions of law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).
A dependency and neglect action heard in juvenile court is appealable to the circuit court, while a custody matter heard by the juvenile court is appealable to the Tennessee Court of Appeals. Tenn. Code Ann. § 37-1-159 (2010); State Dept. of Children’s Services v. Owens, 129 S.W.3d 50, 54 (Tenn. 2004).
On appeal, Mother argues that the Trial Court should have characterized her appeal from Juvenile Court as one arising from dependency and neglect, thus entitling her to a de novo hearing in the Trial Court. As evidence, Mother points to the language of the Juvenile Court in its oral ruling in January 2011, when the Juvenile Court stated plainly that “[t]his was not a case involving custody” but rather “[this] was a dependency case.” The Juvenile Court later reflected this characterization in its written order.
While the Juvenile Court labeled the case a “dependency case” when it ruled on Mother’s motion to set aside, we do not consider this dispositive on the issue of the nature
-4- of the case. Initially, we observe, as did the Trial Court, that the Juvenile Court labeled this action a custody matter in September 2009. As our Supreme Court has stated, “[t]he nature and substance of a proceeding cannot be transformed simply by the filing of a petition with a different caption.” Owens, 129 S.W.3d at 54. Similarly, we believe that a judge’s stated characterization of a matter may be mistaken, and we must look to the nature of the action itself to determine its character. Insofar as Mother understandably relied on the Juvenile Court’s description of her action, any such reliance simply was predicated on an error. From a review of the record, there is no hint, apart from the Juvenile Court’s curious characterization, that this was a dependency and neglect action. Rather, this case involved an agreed order whereby the parents gave custody to the grandparents, and then later Mother sought to change the custody arrangement. Therefore, we believe that the Trial Court did not err when it held that this was a custody case.
There still remains the issue of what the Trial Court should have done with respect to Mother’s appeal once it correctly characterized the action as a custody matter. As we have discussed, the Trial Court lacked jurisdiction to hear Mother’s appeal. Father apparently contends that we simply should affirm the Trial Court’s denial of Mother’s appeal, thus ending that appeal. We, however, do not believe that this is the proper result. When a case has been appealed to the wrong court, the appropriate course of action is for the court lacking jurisdiction to transfer the case to the correct court. In re D.L.D., Jr., E2009-00706- COA-R3-JV, 2010 WL 653252, at *1 (Tenn. Ct. App. Feb. 24, 2010), no appl. perm. appeal filed; In re Estate of White, 77 S.W.3d 765, 769 (Tenn. Ct. App. 2001).
The case of In re E.J.M., W2005-02520-COA-R3-CV, 2006 WL 2052713 (Tenn. Ct. App. July 25, 2006), no appl. perm appeal filed, is particularly on point. In In re E.J.M., the father timely appealed the juvenile court’s custody decision to the circuit court. Id. at *1. The circuit court dismissed father’s appeal for lack of subject matter jurisdiction. Id. at *2. On appeal, we held that, while the circuit court correctly determined that it lacked subject matter jurisdiction over the appeal, the circuit court should have transferred the father’s appeal to the Court of Appeals. Id. We remanded the case to the circuit court with instructions for it to enter an order transferring the appeal to this Court. Id. at *3.
A similar course of action is appropriate in the instant case. We vacate the order of the Trial Court denying Mother’s appeal and remand this cause to the Trial Court with instructions to enter an order transferring Mother’s appeal of the Juvenile Court’s decision to this Court.
-5- Conclusion
The judgment of the Trial Court is vacated, and this cause is remanded to the Trial Court for proceedings consistent with this opinion. The costs on appeal are assessed equally against the Appellee, David D. Clark, Jr., and the Appellant, Ashlyn Cooper.
_________________________________ D. MICHAEL SWINEY, JUDGE
-6- | 10-08-2013 | [
"IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE January 22, 2013 Session DAVID D. CLARK, JR. v. ASHLYN COOPER Appeal from the Circuit Court for Jefferson County No. 22821 Ben Hooper, II, Judge No. E2012-00684-COA-R3-CV-FILED-March 18, 2013 This appeal arises from a dispute involving custody of a child. David D. Clark, Jr. (“Father”) and Ashlyn Cooper (“Mother”) voluntarily gave custody of their minor child (“the Child”) to the Child’s paternal grandparents. Mother later sought to alter custody of the Child through the Juvenile Court for Jefferson County (“the Juvenile Court”). The Juvenile Court denied Mother’s motions. Mother filed a motion for a new hearing, which also was denied. The Juvenile Court, when denying Mother’s motion for a new hearing, described the matter as a dependency case despite earlier classifying it as a custody case. Mother appealed to the Circuit Court for Jefferson County (“the Trial Court”), which denied Mother’s appeal. The Trial Court held that the action was, in fact, a custody matter, and therefore, Mother’s appeal from Juvenile Court, if any, should have been to the Tennessee Court of Appeals. Mother appeals.",
"We hold that, while the Trial Court correctly held that this was a custody matter and that it therefore lacked subject matter jurisdiction to hear Mother’s appeal, it should have transferred her appeal to this Court rather than simply deny the appeal. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated; Case Remanded D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D . S USANO, J R., P.J., and J OHN W. M CC LARTY, J., joined. Franz F. Springmann, Sr., Sevierville, Tennessee, for the appellant, Ashlyn Cooper. Felisha B.",
"White, Seymour, Tennessee, for the appellee, David D. Clark, Jr. OPINION Background Some years ago, Father filed an action in Juvenile Court to establish paternity of the Child. Father’s paternity was established. After a number of additional filings, Mother and Father entered into an agreed order in 2008 whereby custody of the Child was given to the Child’s paternal grandparents. Mother later filed a motion for a hearing. In September 2009, the Juvenile Court entered an order denying Mother’s motion. Germane to the issue on appeal, the Juvenile Court stated in its order on that motion that the action pending before the court was not a dependency and neglect action.",
"Rather, the Juvenile Court explained, “[t]he Court finds this is a visitation/custody dispute and has been one from its inception.” Mother filed additional motions afterwards: a motion for return of custody, motion for emergency custody, and motion for change in visitation. After a hearing, the Juvenile Court by its February 2010 order declined to grant Mother’s request for a change in custody.1 Mother subsequently filed her motion to set side and motion for new hearing. In her motion, Mother argued that the guardian ad litem had actively participated in the hearing contrary to Supreme Court rule 40(a). Mother asserted that this tainted the proceedings and that the order emanating from the hearing should be stricken. In January 2011, following another hearing2 , the Juvenile Court entered an order denying Mother’s motion to set aside and for a new hearing, stating in relevant part: [Mother’s] quoting and relying on Rule 40A is in error. Rule 40A appointments are to be utilized in custody cases involving “...divorce, paternity, domestic violence, contested adoptions, and contested private guardianship cases.” None of those issues were/are involved in this case.",
"When the father and the mother voluntarily entered into an agreed order divesting themselves of legal and physical custody of the child, this case stopped being merely a custody case and became a dependency case. Rule 1 The record does not contain Mother’s motions, but, we glean from the Juvenile Court’s order that Mother alleged that her health and overall situation had improved such as to cause a material change in circumstances. 2 By this stage of the case, Mother had retained new counsel, the attorney now representing her on appeal. -2- 40A was and is simply not applicable in the proceedings held on January 21, 2010. (Note: the respondent misquotes Rule 40A as Rule 40(a).) (emphasis added). Thus, the Juvenile Court contradicted its 2009 characterization of this case as a custody matter, stating that this actually was a “dependency case.” Mother appealed to the Trial Court. Father filed a motion to dismiss. The Trial Court conducted a hearing regarding Mother’s appeal in January 2012. In March 2012, the Trial Court entered an order denying Mother’s appeal, holding that this was, in fact, a custody matter which should have been appealed to the Tennessee Court of Appeals rather than a dependency case in which the appeal would have been to the Trial Court.",
"The Trial Court incorporated the transcript of the January 2012 proceedings into its order, and we quote from the Trial Court’s reasoning in relevant part: Okay. I think one thing that comes to my mind is I don’t think it is really material to the true focus of this case what the guardian ad litem may have done or didn’t do. And apparently there are some situations where he can do what he did and there are some where he cannot. And I don’t know, maybe - - I’m trying to figure out what really happened here. And, Ms. White, you are the only one that was there, other than the parties. It seems like that, and I want to be very careful about what I say, but sometimes you have got to say it, that maybe Judge Bell may have felt like somebody was saying, you know, you mishandled this matter by letting the guardian ad litem do what he did, and then he is really focused on trying to say, well, not really, because this is a dependency case. Now, it is without a doubt he clearly ruled that this was a custody case at one point in time.",
"That was in 2009. And it can’t be any clearer. But then he - - well, I don’t know whether he reversed himself, but he is saying that there has been a transformation take place, all of a sudden this has become a dependency action. I can’t see, for the life of me, how it can be said that an agreed order signed by a judge in a custody case turns it into a dependency and neglect case or maybe just dependency. No judge is going to sign an order that creates a situation that is such that people are entitled to get relief through our judicial system. The other word, the neglect, nobody would sign an order, an agreed -3- order at that, that would then create a neglect situation. You know, it doesn’t follow through. There is something amiss here. I think maybe I have tried to poorly explain my thinking on the matter.",
"And I’m really - - you know, I don’t know what was in somebody’s mind at the time this order went down January 20, 2011. I just in good conscience cannot find that this is anything other than just a custody case. You know, he was so emphatic about it. And that is what it remains. Mother timely filed an appeal of the Trial Court’s March 2012 order to this Court. Discussion Though not stated exactly as such, Mother raises one issue on appeal: whether the Trial Court erred in denying her appeal on the basis that her action was for custody and, therefore, the Trial Court lacked subject matter jurisdiction to hear her appeal. Our review is de novo upon the record, accompanied by a presumption of correctness of the findings of fact of the trial court, unless the preponderance of the evidence is otherwise. Tenn. R. App.",
"P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court's conclusions of law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). A dependency and neglect action heard in juvenile court is appealable to the circuit court, while a custody matter heard by the juvenile court is appealable to the Tennessee Court of Appeals.",
"Tenn. Code Ann. § 37-1-159 (2010); State Dept. of Children’s Services v. Owens, 129 S.W.3d 50, 54 (Tenn. 2004). On appeal, Mother argues that the Trial Court should have characterized her appeal from Juvenile Court as one arising from dependency and neglect, thus entitling her to a de novo hearing in the Trial Court. As evidence, Mother points to the language of the Juvenile Court in its oral ruling in January 2011, when the Juvenile Court stated plainly that “[t]his was not a case involving custody” but rather “[this] was a dependency case.” The Juvenile Court later reflected this characterization in its written order. While the Juvenile Court labeled the case a “dependency case” when it ruled on Mother’s motion to set aside, we do not consider this dispositive on the issue of the nature -4- of the case. Initially, we observe, as did the Trial Court, that the Juvenile Court labeled this action a custody matter in September 2009.",
"As our Supreme Court has stated, “[t]he nature and substance of a proceeding cannot be transformed simply by the filing of a petition with a different caption.” Owens, 129 S.W.3d at 54. Similarly, we believe that a judge’s stated characterization of a matter may be mistaken, and we must look to the nature of the action itself to determine its character. Insofar as Mother understandably relied on the Juvenile Court’s description of her action, any such reliance simply was predicated on an error. From a review of the record, there is no hint, apart from the Juvenile Court’s curious characterization, that this was a dependency and neglect action. Rather, this case involved an agreed order whereby the parents gave custody to the grandparents, and then later Mother sought to change the custody arrangement. Therefore, we believe that the Trial Court did not err when it held that this was a custody case. There still remains the issue of what the Trial Court should have done with respect to Mother’s appeal once it correctly characterized the action as a custody matter. As we have discussed, the Trial Court lacked jurisdiction to hear Mother’s appeal.",
"Father apparently contends that we simply should affirm the Trial Court’s denial of Mother’s appeal, thus ending that appeal. We, however, do not believe that this is the proper result. When a case has been appealed to the wrong court, the appropriate course of action is for the court lacking jurisdiction to transfer the case to the correct court. In re D.L.D., Jr., E2009-00706- COA-R3-JV, 2010 WL 653252, at *1 (Tenn. Ct. App. Feb. 24, 2010), no appl. perm. appeal filed; In re Estate of White, 77 S.W.3d 765, 769 (Tenn. Ct. App. 2001). The case of In re E.J.M., W2005-02520-COA-R3-CV, 2006 WL 2052713 (Tenn. Ct. App. July 25, 2006), no appl. perm appeal filed, is particularly on point. In In re E.J.M., the father timely appealed the juvenile court’s custody decision to the circuit court. Id. at *1.",
"The circuit court dismissed father’s appeal for lack of subject matter jurisdiction. Id. at *2. On appeal, we held that, while the circuit court correctly determined that it lacked subject matter jurisdiction over the appeal, the circuit court should have transferred the father’s appeal to the Court of Appeals. Id. We remanded the case to the circuit court with instructions for it to enter an order transferring the appeal to this Court.",
"Id. at *3. A similar course of action is appropriate in the instant case. We vacate the order of the Trial Court denying Mother’s appeal and remand this cause to the Trial Court with instructions to enter an order transferring Mother’s appeal of the Juvenile Court’s decision to this Court. -5- Conclusion The judgment of the Trial Court is vacated, and this cause is remanded to the Trial Court for proceedings consistent with this opinion. The costs on appeal are assessed equally against the Appellee, David D. Clark, Jr., and the Appellant, Ashlyn Cooper. _________________________________ D. MICHAEL SWINEY, JUDGE -6-"
]
| https://www.courtlistener.com/api/rest/v3/opinions/1045329/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
LOYDALE KIRVEN, and ESTEVEN GARCIA,
Plaintiffs,
vs. No. CV 19-00322 MV/KRS
SANTA ROSA DEPARTMENT OF CORRECTIONS, SANTA FE DEPT OF CORRECTIONS,
Defendants.
PRO SE PRISONER CASE MANAGEMENT ORDER
THIS MATTER is before the Court sua sponte. The Court has received and docketed the
civil rights complaint filed pro se by Plaintiffs Esteven Garcia and Loydale Kirven, on April 4,
2019. Plaintiffs shall include the case number, CV 19-00322 RB/KRS on all papers filed in this
proceeding.
Plaintiffs must comply with the Federal Rules of Civil Procedure, the Local Rules of this
Court, and any Order of the Court. Failure to comply with the Rules or Court Orders may result in
dismissal of this case or other sanctions. Fed. R. Civ. P. 41(b); see, also, Ogden v. San Juan
County, 32 F.3d 452, 455 (10th Cir.1994). Plaintiffs are obligated to keep the Court advised of
any changes in Plaintiffs’ mailing addresses. Failure to keep the Court informed of Plaintiffs’
correct address may also result in dismissal of the case or other sanctions. D.N.M. LR-Civ. 83.6.
Because Plaintiffs are prisoners proceeding pro se, the Court is obligated to conduct a
preliminary screening of the Complaint. See 28 U.S.C. § 1915A. Whenever a prisoner brings a
1 civil action against government officials, the Court is obligated to screen the prisoner’s complaint
or petition. 28 U.S.C. § 1915A. Section 1915A states:
“The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” ... On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint— (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.”
28 U.S.C. § 1915A(a) and (b). The Court has a similar obligation to screen the complaint when a
pro se plaintiff is proceeding without prepayment of fees and costs under 28 U.S.C. § 1915(e)(2):
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that— (A) the allegation of poverty is untrue; or (B) the action or appeal— (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
Any request to the Court for relief must be in the form of a motion. Fed. R. Civ. P. 7(b).
The filing of excessive motions may cause substantial delay in completion of the Court’s
preliminary screening and resolution of the case. Plaintiffs should avoid filing unnecessary
motions. Requests for service of process, discovery, and submissions of proof are premature and
unavailable prior to the Court’s completion of its screening obligation. See Jones v. Bock, 549 U.S.
199, 213-214 (2007). If Plaintiffs’ Complaint is not dismissed on initial screening, the Court will
enter further orders governing service of process, discovery, and scheduling.
2 Based on the similarity of the handwriting and the mailing address of record, Plaintiff
Loydale Kirven appears to be proceeding on behalf of Plaintiff Esteven Garcia. 1 A Plaintiff
may not appear for, file on behalf of, or represent any Plaintiff in this case other than himself.
“The right to proceed pro se in a civil action in federal court is guaranteed by 28 U.S.C. § 1654.
[B]ecause pro se means to appear for one's self, [however,] a person may not appear on another
person's behalf in the other's cause[;] rather, a person must be litigating an interest personal to
him.” Adams ex rel. D.J.W. v. Astrue, 659 F.3d 1297, 1299 (10th Cir. 2011). In Fymbo v. State
Farm Fire and Casualty Co., 213 F.3d 1320 (10th Cir.2000), the Tenth Circuit concluded that a
litigant may bring his own claims to federal court without counsel, but not the claims of others
because “the competence of a layman is ‘clearly too limited to allow him to risk the rights of
others.’ ” Id. at 1321 (quoting Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.1975)).
Plaintiffs should not send any letters to the Court other than transmittal letters or requests
for information or copies. All mail relating to this case must be directed to the Clerk of the Court.
Plaintiffs are not to send any mail directly to the assigned District Judge or the assigned Magistrate
Judge.
IT IS ORDERED that this Case Management Order shall govern proceedings in this case
until further order of the Court.
____________________________________ UNITED STATES MAGISTRATE JUDGE
1 Plaintiff Kirven has filed approximately 19 cases in this Court between 2006 and the present. The handwriting in those cases appears to be the same handwriting as the Complaint in this case. See CV 06-01212 JB/WDS, CV 07-00958 JB/CG, CV 08-00187 WJ/RLG, CV 08- 00878 RB/ACT, CV 12-01277 RB/CG, CV 13-00217 MCA/SMV, CV 14-00209 KG/RHS, CV 15-00080 JB/KK, CV 16-01110 JCH/KRS, CV 16-01162 MV/SMV,CV 16-01333 RB/GJF, CV 16-01361 KG/LF, CV 18-00971 KG/SMV, CV 18-01061 JB/KK, CV 18-01204 WJ/GJF, CV 19-00028 MV/SMV, CV 19-00321 KG/SCY, CV 19-00322 RB/KRS, CV 19-00324 KG/SMV. 3 | 2019-04-10 | [
"IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO LOYDALE KIRVEN, and ESTEVEN GARCIA, Plaintiffs, vs. No. CV 19-00322 MV/KRS SANTA ROSA DEPARTMENT OF CORRECTIONS, SANTA FE DEPT OF CORRECTIONS, Defendants. PRO SE PRISONER CASE MANAGEMENT ORDER THIS MATTER is before the Court sua sponte. The Court has received and docketed the civil rights complaint filed pro se by Plaintiffs Esteven Garcia and Loydale Kirven, on April 4, 2019. Plaintiffs shall include the case number, CV 19-00322 RB/KRS on all papers filed in this proceeding. Plaintiffs must comply with the Federal Rules of Civil Procedure, the Local Rules of this Court, and any Order of the Court. Failure to comply with the Rules or Court Orders may result in dismissal of this case or other sanctions. Fed. R. Civ. P. 41(b); see, also, Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.1994). Plaintiffs are obligated to keep the Court advised of any changes in Plaintiffs’ mailing addresses.",
"Failure to keep the Court informed of Plaintiffs’ correct address may also result in dismissal of the case or other sanctions. D.N.M. LR-Civ. 83.6. Because Plaintiffs are prisoners proceeding pro se, the Court is obligated to conduct a preliminary screening of the Complaint. See 28 U.S.C. § 1915A. Whenever a prisoner brings a 1 civil action against government officials, the Court is obligated to screen the prisoner’s complaint or petition.",
"28 U.S.C. § 1915A. Section 1915A states: “The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” ... On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint— (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(a) and (b). The Court has a similar obligation to screen the complaint when a pro se plaintiff is proceeding without prepayment of fees and costs under 28 U.S.C.",
"§ 1915(e)(2): “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that— (A) the allegation of poverty is untrue; or (B) the action or appeal— (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. Any request to the Court for relief must be in the form of a motion. Fed. R. Civ. P. 7(b). The filing of excessive motions may cause substantial delay in completion of the Court’s preliminary screening and resolution of the case. Plaintiffs should avoid filing unnecessary motions. Requests for service of process, discovery, and submissions of proof are premature and unavailable prior to the Court’s completion of its screening obligation. See Jones v. Bock, 549 U.S. 199, 213-214 (2007). If Plaintiffs’ Complaint is not dismissed on initial screening, the Court will enter further orders governing service of process, discovery, and scheduling.",
"2 Based on the similarity of the handwriting and the mailing address of record, Plaintiff Loydale Kirven appears to be proceeding on behalf of Plaintiff Esteven Garcia. 1 A Plaintiff may not appear for, file on behalf of, or represent any Plaintiff in this case other than himself. “The right to proceed pro se in a civil action in federal court is guaranteed by 28 U.S.C. § 1654. [B]ecause pro se means to appear for one's self, [however,] a person may not appear on another person's behalf in the other's cause[;] rather, a person must be litigating an interest personal to him.” Adams ex rel. D.J.W. v. Astrue, 659 F.3d 1297, 1299 (10th Cir. 2011). In Fymbo v. State Farm Fire and Casualty Co., 213 F.3d 1320 (10th Cir.2000), the Tenth Circuit concluded that a litigant may bring his own claims to federal court without counsel, but not the claims of others because “the competence of a layman is ‘clearly too limited to allow him to risk the rights of others.’ ” Id. at 1321 (quoting Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.1975)). Plaintiffs should not send any letters to the Court other than transmittal letters or requests for information or copies.",
"All mail relating to this case must be directed to the Clerk of the Court. Plaintiffs are not to send any mail directly to the assigned District Judge or the assigned Magistrate Judge. IT IS ORDERED that this Case Management Order shall govern proceedings in this case until further order of the Court. ____________________________________ UNITED STATES MAGISTRATE JUDGE 1 Plaintiff Kirven has filed approximately 19 cases in this Court between 2006 and the present. The handwriting in those cases appears to be the same handwriting as the Complaint in this case.",
"See CV 06-01212 JB/WDS, CV 07-00958 JB/CG, CV 08-00187 WJ/RLG, CV 08- 00878 RB/ACT, CV 12-01277 RB/CG, CV 13-00217 MCA/SMV, CV 14-00209 KG/RHS, CV 15-00080 JB/KK, CV 16-01110 JCH/KRS, CV 16-01162 MV/SMV,CV 16-01333 RB/GJF, CV 16-01361 KG/LF, CV 18-00971 KG/SMV, CV 18-01061 JB/KK, CV 18-01204 WJ/GJF, CV 19-00028 MV/SMV, CV 19-00321 KG/SCY, CV 19-00322 RB/KRS, CV 19-00324 KG/SMV. 3"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/65759709/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Appeal from a judgment of the Superior Court for Whitman County, No. 87-4-00012-1, Wallis W. Friel, J., entered June 22, 1990. Affirmed by unpublished opinion per Green, C.J., concurred in by Munson and Thompson, JJ. | 07-23-2022 | [
"Appeal from a judgment of the Superior Court for Whitman County, No. 87-4-00012-1, Wallis W. Friel, J., entered June 22, 1990. Affirmed by unpublished opinion per Green, C.J., concurred in by Munson and Thompson, JJ."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6870075/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
PER CURIAM. Plaintiff-appellant, Ivan B. Fisher, seeks review of the lower court’s order denying his motion for summary judgment in an action involving the purchase of a warehouse. In an attempt to purchase a warehouse located in Hialeah, Florida, plaintiff-appellant, Ivan B. Fisher, made an offer to the owners ánd delivered a deposit for the proposed purchase to the real estate broker handling the sale, The Keyes Company. Plaintiff alleges that he withdrew his offer before it was accepted and demanded that his deposit be returned by The Keyes Company. The trial court entered a summary judgment awarding a broker’s commission to The Keyes Company against Fisher and the sellers. The sellers did not appeal the summary judgment against them but this order was appealed by Fisher to this court which reversed the lower court on the basis that no contract for the sale was executed which could produce liability on the prospective purchaser for a broker’s commission. Once back on remand to the circuit court, Fisher, in a further attempt to retain his deposit, moved the court for a summary judgment based upon the prior decision of the District Court of Appeal finding that no contract for sale was executed. The motion for summary judgment was denied by the circuit court and this appeal ensued. To be consistent with this court’s decision in its previous opinion, see Fisher v. Keyes Company, Fla.App.1972, 262 So.2d 705, we hold that it was error to deny plaintiff’s motion for summary judgment. Consequently, the court’s order denying plaintiff’s motion for summary judgment is reversed, and the court below is directed to enter an order requiring the deposit to be returned to the plaintiff. Reversed and remanded. | 07-29-2022 | [
"PER CURIAM. Plaintiff-appellant, Ivan B. Fisher, seeks review of the lower court’s order denying his motion for summary judgment in an action involving the purchase of a warehouse. In an attempt to purchase a warehouse located in Hialeah, Florida, plaintiff-appellant, Ivan B. Fisher, made an offer to the owners ánd delivered a deposit for the proposed purchase to the real estate broker handling the sale, The Keyes Company. Plaintiff alleges that he withdrew his offer before it was accepted and demanded that his deposit be returned by The Keyes Company.",
"The trial court entered a summary judgment awarding a broker’s commission to The Keyes Company against Fisher and the sellers. The sellers did not appeal the summary judgment against them but this order was appealed by Fisher to this court which reversed the lower court on the basis that no contract for the sale was executed which could produce liability on the prospective purchaser for a broker’s commission. Once back on remand to the circuit court, Fisher, in a further attempt to retain his deposit, moved the court for a summary judgment based upon the prior decision of the District Court of Appeal finding that no contract for sale was executed. The motion for summary judgment was denied by the circuit court and this appeal ensued. To be consistent with this court’s decision in its previous opinion, see Fisher v. Keyes Company, Fla.App.1972, 262 So.2d 705, we hold that it was error to deny plaintiff’s motion for summary judgment. Consequently, the court’s order denying plaintiff’s motion for summary judgment is reversed, and the court below is directed to enter an order requiring the deposit to be returned to the plaintiff. Reversed and remanded."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7453197/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Objections Claim 11 is objected to because of the following informalities: Lines 7-9 should be amended as follows: “advancing the the lower anchor of the anchor device[[,]] into a proximal end of the spacer causing the upper anchor and lower anchor to radially and simultaneously deploy into [[their]] the respective vertebral bodies.” Appropriate correction is required. Claim 12 is objected to because of the following informalities: The claim number currently reads “2.” which should be replaced with the number --12.--. Appropriate correction is required.
Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Patterson et al. (US PG Pub No. 2014/0100662). Regarding Claim 1, Patterson et al. discloses an intervertebral fusion system (PLIF implant 101, Figs. 9A-9C, Paragraphs [0077-0133]) comprising: a spacer (body of 101) having an upper guide (top channel 186, Fig. 9B, Paragraphs [0082-0083]) and a lower guide (bottom channel 186, Fig. 9B, Paragraphs [0082-0083]), wherein the spacer is adapted to be implanted between an upper vertebral body and a lower vertebral body (Paragraph [0126]); and an anchoring device (anchor pin 190, Figs. 9B-9C, Paragraph [0082]) formed as a single unitary piece (Figs. 9B-9C), having an upper anchor (top prong 192, Figs. 9B-9C) and a lower anchor (bottom prong 192, Figs. 9B-9C), wherein the upper and lower anchors are configured to be deployed into the upper and lower vertebral bodies, respectively, along the upper and lower guides (Fig. 9C, Paragraph [0092]). Regarding Claim 2, Patterson et al. discloses wherein the upper and lower guides are part of a wedge (wedge-shaped spur 189, Fig. 9B, Paragraph [0082]), and the upper and lower anchors are configured to slide along the upper and lower guides of the wedge, respectively, when force is applied to the anchoring device (Paragraph [0092], Fig. 9C). Regarding Claim 3, Patterson et al. discloses wherein the upper guide includes an upper inclined surface and the lower guide includes a lower inclined surface (See Fig. 9B depiction and notations below).
PNG media_image1.png 580 1003 media_image1.png Greyscale
Regarding Claim 4, Patterson et al. discloses wherein the upper anchor includes an underside configured to press against the upper inclined surface and the lower anchor includes an underside (See Fig. 9B depiction and notations above) configured to press against the lower inclined surface (Fig. 9C). Regarding Claim 5, Patterson et al. discloses wherein the spacer includes a top surface and a bottom surface (See Fig. 9B depiction and notations above). Regarding Claim 6, Patterson et al. discloses wherein the upper guide opens through the top surface and the lower guide opens through the bottom surface (Figs. 9A-9C). Regarding Claim 7, Patterson et al. discloses wherein the top surface and the bottom surface include a plurality of teeth (projections of roughened topography 118 on top and bottom surfaces, not shown, Paragraphs [0103-0114, 0122]). Regarding Claim 8, Patterson et al. discloses wherein the upper anchor and the lower anchor extend past a profile of the plurality of teeth of each of the top surface and the bottom surface (when 190 is in the fully inserted position as seen in Fig. 9C). Regarding Claim 9, Patterson et al. discloses a locking cap (wedge 180, Figs. 9B-9C) configured to lock the upper anchor and the lower anchor when deployed (Paragraphs [0088-0091]). Regarding Claim 10, Patterson et al. discloses wherein the locking cap is configured to press a proximal end of the anchoring device to lock the anchoring device to the spacer (Figs. 9B-9C, Paragraphs [0088-0091]). Regarding Claim 11, Patterson et al. discloses a method for implanting an intervertebral fusion system (PLIF implant 101, Figs. 9A-9C, Paragraphs [0077-0133]) comprising: gripping a spacer (body of 101) using an implantation instrument (surgical tool, Paragraph [0082]), wherein the spacer has an upper guide (top channel 186, Fig. 9B, Paragraphs [0082-0083]) and a lower guide (bottom channel 186, Fig. 9B, Paragraphs [0082-0083]) for respectively guiding deployment of an upper anchor (top prong 192, Figs. 9B-9C) and a lower anchor (bottom prong 192, Figs. 9B-9C) of an anchor device (anchor pin 190), the anchor device formed as a single unitary piece (Fig. 9B-9C); positioning the spacer between an upper vertebral body and a lower vertebral body (Paragraph [0092]); and advancing the upper anchor and the lower anchor of the anchor device (Fig. 9C), into a proximal end of the spacer causing the upper anchor and lower anchor to radially and simultaneously deploy into their respective vertebral bodies (Fig. 9C, Paragraphs [0082-0083, 0102]). Regarding Claim 12, Patterson et al. discloses wherein the upper and lower guides are part of a wedge (wedge-shaped spur 189, Fig. 9B, Paragraph [0082]), and the upper and lower anchors are configured to slide along the upper and lower guides of the wedge, respectively, when force is applied to the anchoring device (Paragraph [0092], Fig. 9C). Regarding Claim 13, Patterson et al. discloses wherein the upper guide includes an upper inclined surface and the lower guide includes a lower inclined surface (See Fig. 9B depiction and notations above). Regarding Claim 14, Patterson et al. discloses wherein the upper anchor includes an underside configured to press against the upper inclined surface and the lower anchor includes an underside configured to press against the lower inclined surface (See Fig. 9B depiction and notations above). Regarding Claim 15, Patterson et al. discloses wherein the spacer includes a top surface and a bottom surface (See Fig. 9B depiction and notations above). Regarding Claim 16, Patterson et al. discloses wherein the upper guide opens through the top surface and the lower guide opens through the bottom surface (Figs. 9A-9C). Regarding Claim 17, Patterson et al. discloses wherein the top surface and the bottom surface include a plurality of teeth (projections of roughened topography 118 on top and bottom surfaces, not shown, Paragraphs [0103-0114, 0122]). Regarding Claim 18, Patterson et al. discloses wherein the upper anchor and the lower anchor extend past a profile of the plurality of teeth of each of the top surface and the bottom surface (when 190 is in the fully inserted position as seen in Fig. 9C). Regarding Claim 19, Patterson et al. discloses a locking cap (wedge 180, Figs. 9B-9C) configured to lock the upper anchor and the lower anchor when deployed (Paragraphs [0088-0091]). Regarding Claim 20, Patterson et al. discloses wherein the locking cap is configured to press a proximal end of the anchoring device to lock the anchoring device to the spacer (Figs. 9B-9C, Paragraphs [0088-0091]).
Response to Arguments Applicant’s amendments, filed 02/07/22, have overcome the objections to claims 3 & 13. Applicant’s amendments, filed 02/07/22, have overcome the 112(b) rejection to claim 11. In regards to Applicants arguments, filed 02/07/22, with respect to all claims rejected under 102(a)(1) as anticipated by Kim: Applicant’s arguments have been fully considered but are moot in view of the new grounds of rejection based on the newly amended claims.
Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JESSICA WEISS whose telephone number is (571) 270-5597. The examiner can normally be reached Monday through Friday, 8:00 am to 4:00 pm EST. If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, KEVIN T. TRUONG, at 571-272-4705. 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.
/JESSICA WEISS/Primary Examiner, Art Unit 3775 | 2022-04-25T16:00:37 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Claim Objections Claim 11 is objected to because of the following informalities: Lines 7-9 should be amended as follows: “advancing the the lower anchor of the anchor device[[,]] into a proximal end of the spacer causing the upper anchor and lower anchor to radially and simultaneously deploy into [[their]] the respective vertebral bodies.” Appropriate correction is required. Claim 12 is objected to because of the following informalities: The claim number currently reads “2.” which should be replaced with the number --12.--. Appropriate correction is required. Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless – (a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.",
"Claim(s) 1-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Patterson et al. (US PG Pub No. 2014/0100662). Regarding Claim 1, Patterson et al. discloses an intervertebral fusion system (PLIF implant 101, Figs. 9A-9C, Paragraphs [0077-0133]) comprising: a spacer (body of 101) having an upper guide (top channel 186, Fig. 9B, Paragraphs [0082-0083]) and a lower guide (bottom channel 186, Fig. 9B, Paragraphs [0082-0083]), wherein the spacer is adapted to be implanted between an upper vertebral body and a lower vertebral body (Paragraph [0126]); and an anchoring device (anchor pin 190, Figs. 9B-9C, Paragraph [0082]) formed as a single unitary piece (Figs. 9B-9C), having an upper anchor (top prong 192, Figs. 9B-9C) and a lower anchor (bottom prong 192, Figs. 9B-9C), wherein the upper and lower anchors are configured to be deployed into the upper and lower vertebral bodies, respectively, along the upper and lower guides (Fig.",
"9C, Paragraph [0092]). Regarding Claim 2, Patterson et al. discloses wherein the upper and lower guides are part of a wedge (wedge-shaped spur 189, Fig. 9B, Paragraph [0082]), and the upper and lower anchors are configured to slide along the upper and lower guides of the wedge, respectively, when force is applied to the anchoring device (Paragraph [0092], Fig. 9C). Regarding Claim 3, Patterson et al. discloses wherein the upper guide includes an upper inclined surface and the lower guide includes a lower inclined surface (See Fig. 9B depiction and notations below). PNG media_image1.png 580 1003 media_image1.png Greyscale Regarding Claim 4, Patterson et al.",
"discloses wherein the upper anchor includes an underside configured to press against the upper inclined surface and the lower anchor includes an underside (See Fig. 9B depiction and notations above) configured to press against the lower inclined surface (Fig. 9C). Regarding Claim 5, Patterson et al. discloses wherein the spacer includes a top surface and a bottom surface (See Fig. 9B depiction and notations above). Regarding Claim 6, Patterson et al. discloses wherein the upper guide opens through the top surface and the lower guide opens through the bottom surface (Figs. 9A-9C). Regarding Claim 7, Patterson et al. discloses wherein the top surface and the bottom surface include a plurality of teeth (projections of roughened topography 118 on top and bottom surfaces, not shown, Paragraphs [0103-0114, 0122]). Regarding Claim 8, Patterson et al. discloses wherein the upper anchor and the lower anchor extend past a profile of the plurality of teeth of each of the top surface and the bottom surface (when 190 is in the fully inserted position as seen in Fig. 9C).",
"Regarding Claim 9, Patterson et al. discloses a locking cap (wedge 180, Figs. 9B-9C) configured to lock the upper anchor and the lower anchor when deployed (Paragraphs [0088-0091]). Regarding Claim 10, Patterson et al. discloses wherein the locking cap is configured to press a proximal end of the anchoring device to lock the anchoring device to the spacer (Figs. 9B-9C, Paragraphs [0088-0091]). Regarding Claim 11, Patterson et al. discloses a method for implanting an intervertebral fusion system (PLIF implant 101, Figs. 9A-9C, Paragraphs [0077-0133]) comprising: gripping a spacer (body of 101) using an implantation instrument (surgical tool, Paragraph [0082]), wherein the spacer has an upper guide (top channel 186, Fig. 9B, Paragraphs [0082-0083]) and a lower guide (bottom channel 186, Fig. 9B, Paragraphs [0082-0083]) for respectively guiding deployment of an upper anchor (top prong 192, Figs.",
"9B-9C) and a lower anchor (bottom prong 192, Figs. 9B-9C) of an anchor device (anchor pin 190), the anchor device formed as a single unitary piece (Fig. 9B-9C); positioning the spacer between an upper vertebral body and a lower vertebral body (Paragraph [0092]); and advancing the upper anchor and the lower anchor of the anchor device (Fig. 9C), into a proximal end of the spacer causing the upper anchor and lower anchor to radially and simultaneously deploy into their respective vertebral bodies (Fig. 9C, Paragraphs [0082-0083, 0102]). Regarding Claim 12, Patterson et al. discloses wherein the upper and lower guides are part of a wedge (wedge-shaped spur 189, Fig.",
"9B, Paragraph [0082]), and the upper and lower anchors are configured to slide along the upper and lower guides of the wedge, respectively, when force is applied to the anchoring device (Paragraph [0092], Fig. 9C). Regarding Claim 13, Patterson et al. discloses wherein the upper guide includes an upper inclined surface and the lower guide includes a lower inclined surface (See Fig. 9B depiction and notations above). Regarding Claim 14, Patterson et al.",
"discloses wherein the upper anchor includes an underside configured to press against the upper inclined surface and the lower anchor includes an underside configured to press against the lower inclined surface (See Fig. 9B depiction and notations above). Regarding Claim 15, Patterson et al. discloses wherein the spacer includes a top surface and a bottom surface (See Fig. 9B depiction and notations above). Regarding Claim 16, Patterson et al. discloses wherein the upper guide opens through the top surface and the lower guide opens through the bottom surface (Figs. 9A-9C). Regarding Claim 17, Patterson et al. discloses wherein the top surface and the bottom surface include a plurality of teeth (projections of roughened topography 118 on top and bottom surfaces, not shown, Paragraphs [0103-0114, 0122]). Regarding Claim 18, Patterson et al. discloses wherein the upper anchor and the lower anchor extend past a profile of the plurality of teeth of each of the top surface and the bottom surface (when 190 is in the fully inserted position as seen in Fig.",
"9C). Regarding Claim 19, Patterson et al. discloses a locking cap (wedge 180, Figs. 9B-9C) configured to lock the upper anchor and the lower anchor when deployed (Paragraphs [0088-0091]). Regarding Claim 20, Patterson et al. discloses wherein the locking cap is configured to press a proximal end of the anchoring device to lock the anchoring device to the spacer (Figs. 9B-9C, Paragraphs [0088-0091]). Response to Arguments Applicant’s amendments, filed 02/07/22, have overcome the objections to claims 3 & 13. Applicant’s amendments, filed 02/07/22, have overcome the 112(b) rejection to claim 11. In regards to Applicants arguments, filed 02/07/22, with respect to all claims rejected under 102(a)(1) as anticipated by Kim: Applicant’s arguments have been fully considered but are moot in view of the new grounds of rejection based on the newly amended claims. Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a).",
"Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.",
"Any inquiry concerning this communication or earlier communications from the examiner should be directed to JESSICA WEISS whose telephone number is (571) 270-5597. The examiner can normally be reached Monday through Friday, 8:00 am to 4:00 pm EST. If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, KEVIN T. TRUONG, at 571-272-4705. 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. /JESSICA WEISS/Primary Examiner, Art Unit 3775"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-04-17.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
PER CURIAM. Affirmed. Kelly v. State, 552 So.2d 1140 (Fla. 5th DCA 1989); Tumulty v. State, 489 So.2d 150 (Fla. 4th DCA), review denied, 496 So.2d 144 (Fla.1986); Vickers v. State, 303 So.2d 700 (Fla. 1st DCA 1974). | 07-29-2022 | [
"PER CURIAM. Affirmed. Kelly v. State, 552 So.2d 1140 (Fla. 5th DCA 1989); Tumulty v. State, 489 So.2d 150 (Fla. 4th DCA), review denied, 496 So.2d 144 (Fla.1986); Vickers v. State, 303 So.2d 700 (Fla. 1st DCA 1974)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7628364/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
The question presented by the exception to the refusal of the referee to pass definitely upon the questions of evidence as they arose and were made in the progress of the trial, is the more important by reason of the vicious practice which, although of recent origin, has had a rapid growth in the practice of referees in the trial of causes before them. The practice of reserving questions as to the admissibility of evidence and its competency when reasonably made in the course of the trial, is not to be commended even when assented to by counsel. It seriously interferes with the proper and orderly conduct of the trial and tends to embarrass the parties whenever a review of the trial becomes necessary. The comments of Judge FOLGER upon the practice, in Sharpe v. Freeman (45 N.Y., 802), are just and should be heeded as well by counsel as by referees and trial courts. The Code provides that the trial by referees shall be conducted in the same manner as a trial by the court. (Code § 272.) No change is made by the Code in any of its provisions in respect to the conduct of trials, the introduction of evidence, the time and manner of objecting to its admission, the action and decision of the court or referee thereon, or the mode and manner of reviewing decisions made in the course of the trial. The common-law practice still prevails, and exceptions must be taken to decisions of questions arising in the progress of the trial at the time they are made, and if not then taken are waived. In the final report of the referee he states the facts found from all the evidence, and the conclusions of law based thereon, and to such conclusions exceptions may be taken within ten days after notice of the judgment; but there is no place in the report for ruling upon questions of evidence or other interlocutory questions that may have arisen upon the trial, *Page 374 and no time given for exceptions to ruling upon questions of that character. (Code, §§ 268, 272.) The right to object to evidence as it is offered is a legal right of which the party cannot be deprived, and the right to object and to be heard upon the objection, necessarily implies a like right to a decision by a court or referee, and the refusal to entertain an objection or to pass upon it when made is a denial of a legal right to which an exception lies. Wherever any matter is capable of being brought upon the record, and the court refuses to allow it to be so brought, this is the subject of a bill of exceptions. (Per Lord REDESDALE, Lessee of Lawlor v.Murray, 1 Sch. Lef., 75.) When necessary, the judge or referee must pass on all preliminary questions of fact on which the admissibility of evidence depends, and he must do so whenever occasion requires in the progress of a trial. (Doe v.Webster, 12 A. E., 442; 1 Arch. Prac., 359, 366.) The judge or referee has, within proper limits, a discretion as to the order of proof, and may permit facts to be proved provisionally, subject to the condition that other facts shall be subsequently proved which are essential to the competency of the evidence admitted. But when all the facts, upon which the party relies for the admissibility of the evidence, have been put before the court by him and he has rested his case, the adverse party is then entitled to a definite determination as to the competency of the evidence objected to. It is then no longer a question as to the order of proof, nor is it within the discretion of the court to postpone the decision. It appears by the record before us that the parties acquiesced by mutual consent in the reservation of several questions, made upon objections to the admissibility of evidence as against some of the defendants, which was conceded to be competent as against others until the close of the evidence on the part of the plaintiffs. The defendants objecting, then demanded, as they had a right to do, that the referee should pass upon the competency of the evidence as against them, respectively. The question was not as to the effect of the evidence, if admitted, but whether the defendants taking the *Page 375 objections had been so far connected with the transaction and the other parties who were actors in it as to make the evidence competent against them for any purpose. The question of admissibility was one of law; its effect was a question of fact. It was their right to know before entering upon their defence what evidence they had to meet, and they were necessarily embarrassed in their defence by the refusal of the referee to pass upon the questions made. A decision adverse to the plaintiffs would not have prevented a renewed offer of evidence upon other facts appearing; and had the evidence been either rejected or admitted, the defendants might have shaped their defence entirely differently from what they were compelled to do, proceeding in ignorance of the fact whether the evidence was in or out of the case as against them. If it be contended that the evidence objected to was competent as against all the defendants, the sting is not taken out of the exception to the refusal by the referee to decide the question. The defendant had a right to the ruling of the referee upon the question, and an exception to the refusal so to rule should not be confounded with an exception to a refusal to sustain the objections to the evidence. The latter exception would have brought up the question as to the competency of the evidence. The exception actually made does not involve that question. A party has a legal right to a decision upon the admissibility of evidence, whether the same is competent or otherwise, and a refusal of that right is a legal error. A court sitting in review cannot say that a party is not prejudiced by such a refusal. The orderly administration of justice and the preservation of the rights of suitors require that referees as well as courts should be held to a strict observance of those substantial forms and modes of procedure, which are the result of experience and are firmly established. It is neither safe nor consistent with a proper administration of the laws to permit referees or trial courts to exercise their discretion as to whether they will or will not pass upon questions made in proper time and in proper form, or to permit *Page 376 each referee to be a law unto himself and leave it to the appellate tribunals to sustain or reverse judgments, as they may think justice has or has not been done in each case. The law vests no such discretion in courts or referees. If a referee may exercise this power, and act upon his discretion, he may change the burden of proof, and, in fact, deprive the party of his exceptions and the benefits of established rules of evidence; but that it is error for a referee, under such circumstances, to refuse to decide questions of evidence as they are made is plainly intimated in McKnight v. Dunlop (1 Seld., 537), and the doctrine is affirmed inPeck v. Yorks (47 Barb., 131); Brooks v. Christopher (5 Duer, 216), and Clussman v. Merkel (3 Bos., 402). See, also,Goddard v. Perkins (9 Gray, 411), in which SHAW, Ch. J., says: "The parties are entitled to the judge's opinion, to his best judgment, on every question of law arising in the course of the trial." In Bartlett v. Smith (11 M. W., 483), where the admissibility of a bill of exchange, purporting to be a foreign bill, and stamped accordingly, was objected to on the ground that it was, in fact, an inland bill drawn in London, and evidence was offered to prove that fact, it was held that the evidence ought to have been received in that stage of the cause, and the admissibility of the instrument passed upon by the judge, and that the evidence ought not to have been received afterwards as a part of the defendant's case; verdict having passed for the plaintiff, was set aside for this error of the judge. The Code provides for the reservation of a certain class of questions upon the merits for further consideration by the judge, but questions of evidence are not among those that may be so reserved. The judgment appealed from should be reversed, and a new trial granted. For affirmance: FOLGER, ANDREWS, MILLER and EARL, JJ.; for reversal: CHURCH, Ch. J., ALLEN and RAPALLO, JJ Judgment affirmed. *Page 377 | 07-06-2016 | [
"The question presented by the exception to the refusal of the referee to pass definitely upon the questions of evidence as they arose and were made in the progress of the trial, is the more important by reason of the vicious practice which, although of recent origin, has had a rapid growth in the practice of referees in the trial of causes before them. The practice of reserving questions as to the admissibility of evidence and its competency when reasonably made in the course of the trial, is not to be commended even when assented to by counsel. It seriously interferes with the proper and orderly conduct of the trial and tends to embarrass the parties whenever a review of the trial becomes necessary. The comments of Judge FOLGER upon the practice, in Sharpe v. Freeman (45 N.Y., 802), are just and should be heeded as well by counsel as by referees and trial courts. The Code provides that the trial by referees shall be conducted in the same manner as a trial by the court.",
"(Code § 272.) No change is made by the Code in any of its provisions in respect to the conduct of trials, the introduction of evidence, the time and manner of objecting to its admission, the action and decision of the court or referee thereon, or the mode and manner of reviewing decisions made in the course of the trial. The common-law practice still prevails, and exceptions must be taken to decisions of questions arising in the progress of the trial at the time they are made, and if not then taken are waived. In the final report of the referee he states the facts found from all the evidence, and the conclusions of law based thereon, and to such conclusions exceptions may be taken within ten days after notice of the judgment; but there is no place in the report for ruling upon questions of evidence or other interlocutory questions that may have arisen upon the trial, *Page 374 and no time given for exceptions to ruling upon questions of that character. (Code, §§ 268, 272.)",
"The right to object to evidence as it is offered is a legal right of which the party cannot be deprived, and the right to object and to be heard upon the objection, necessarily implies a like right to a decision by a court or referee, and the refusal to entertain an objection or to pass upon it when made is a denial of a legal right to which an exception lies. Wherever any matter is capable of being brought upon the record, and the court refuses to allow it to be so brought, this is the subject of a bill of exceptions. (Per Lord REDESDALE, Lessee of Lawlor v.Murray, 1 Sch.",
"Lef., 75.) When necessary, the judge or referee must pass on all preliminary questions of fact on which the admissibility of evidence depends, and he must do so whenever occasion requires in the progress of a trial. (Doe v.Webster, 12 A. E., 442; 1 Arch. Prac., 359, 366.) The judge or referee has, within proper limits, a discretion as to the order of proof, and may permit facts to be proved provisionally, subject to the condition that other facts shall be subsequently proved which are essential to the competency of the evidence admitted. But when all the facts, upon which the party relies for the admissibility of the evidence, have been put before the court by him and he has rested his case, the adverse party is then entitled to a definite determination as to the competency of the evidence objected to. It is then no longer a question as to the order of proof, nor is it within the discretion of the court to postpone the decision.",
"It appears by the record before us that the parties acquiesced by mutual consent in the reservation of several questions, made upon objections to the admissibility of evidence as against some of the defendants, which was conceded to be competent as against others until the close of the evidence on the part of the plaintiffs. The defendants objecting, then demanded, as they had a right to do, that the referee should pass upon the competency of the evidence as against them, respectively.",
"The question was not as to the effect of the evidence, if admitted, but whether the defendants taking the *Page 375 objections had been so far connected with the transaction and the other parties who were actors in it as to make the evidence competent against them for any purpose. The question of admissibility was one of law; its effect was a question of fact. It was their right to know before entering upon their defence what evidence they had to meet, and they were necessarily embarrassed in their defence by the refusal of the referee to pass upon the questions made. A decision adverse to the plaintiffs would not have prevented a renewed offer of evidence upon other facts appearing; and had the evidence been either rejected or admitted, the defendants might have shaped their defence entirely differently from what they were compelled to do, proceeding in ignorance of the fact whether the evidence was in or out of the case as against them. If it be contended that the evidence objected to was competent as against all the defendants, the sting is not taken out of the exception to the refusal by the referee to decide the question.",
"The defendant had a right to the ruling of the referee upon the question, and an exception to the refusal so to rule should not be confounded with an exception to a refusal to sustain the objections to the evidence. The latter exception would have brought up the question as to the competency of the evidence. The exception actually made does not involve that question. A party has a legal right to a decision upon the admissibility of evidence, whether the same is competent or otherwise, and a refusal of that right is a legal error. A court sitting in review cannot say that a party is not prejudiced by such a refusal. The orderly administration of justice and the preservation of the rights of suitors require that referees as well as courts should be held to a strict observance of those substantial forms and modes of procedure, which are the result of experience and are firmly established.",
"It is neither safe nor consistent with a proper administration of the laws to permit referees or trial courts to exercise their discretion as to whether they will or will not pass upon questions made in proper time and in proper form, or to permit *Page 376 each referee to be a law unto himself and leave it to the appellate tribunals to sustain or reverse judgments, as they may think justice has or has not been done in each case. The law vests no such discretion in courts or referees. If a referee may exercise this power, and act upon his discretion, he may change the burden of proof, and, in fact, deprive the party of his exceptions and the benefits of established rules of evidence; but that it is error for a referee, under such circumstances, to refuse to decide questions of evidence as they are made is plainly intimated in McKnight v. Dunlop (1 Seld., 537), and the doctrine is affirmed inPeck v. Yorks (47 Barb., 131); Brooks v. Christopher (5 Duer, 216), and Clussman v. Merkel (3 Bos., 402).",
"See, also,Goddard v. Perkins (9 Gray, 411), in which SHAW, Ch. J., says: \"The parties are entitled to the judge's opinion, to his best judgment, on every question of law arising in the course of the trial.\" In Bartlett v. Smith (11 M. W., 483), where the admissibility of a bill of exchange, purporting to be a foreign bill, and stamped accordingly, was objected to on the ground that it was, in fact, an inland bill drawn in London, and evidence was offered to prove that fact, it was held that the evidence ought to have been received in that stage of the cause, and the admissibility of the instrument passed upon by the judge, and that the evidence ought not to have been received afterwards as a part of the defendant's case; verdict having passed for the plaintiff, was set aside for this error of the judge. The Code provides for the reservation of a certain class of questions upon the merits for further consideration by the judge, but questions of evidence are not among those that may be so reserved.",
"The judgment appealed from should be reversed, and a new trial granted. For affirmance: FOLGER, ANDREWS, MILLER and EARL, JJ. ; for reversal: CHURCH, Ch. J., ALLEN and RAPALLO, JJ Judgment affirmed. *Page 377"
]
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People v Montanez (2020 NY Slip Op 01123)
People v Montanez
2020 NY Slip Op 01123
Decided on February 18, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on February 18, 2020
Acosta, P.J., Kapnick, Moulton, González, JJ.
11047 4048/13
[*1] The People of the State of New York, Respondent,
vElsie Montanez, Defendant-Appellant.
Janet Sabel, New York (Lorca Morello of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), for respondent.
Judgment, Supreme Court, New York County (Neil E. Ross, J.), rendered August 4, 2015, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the fifth degree and criminal possession of a controlled substance in the fifth and seventh degrees, and sentencing her to a conditional discharge for a period of one year, unanimously affirmed. The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]). There is no basis for disturbing the jury's credibility determinations, including its rejection of defendant's explanation for her possession of prerecorded buy money and a package of drugs that matched the package that another person sold to an undercover officer, immediately after the other person interacted with defendant. The evidence supports the conclusion that defendant was a participant in the drug transaction, whose role was to hold the drugs to be sold and the money received (see generally People v Bello, 92 NY2d 523 [1998]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: FEBRUARY 18, 2020 CLERK | 02-18-2020 | [
"People v Montanez (2020 NY Slip Op 01123) People v Montanez 2020 NY Slip Op 01123 Decided on February 18, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on February 18, 2020 Acosta, P.J., Kapnick, Moulton, González, JJ. 11047 4048/13 [*1] The People of the State of New York, Respondent, vElsie Montanez, Defendant-Appellant. Janet Sabel, New York (Lorca Morello of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), for respondent. Judgment, Supreme Court, New York County (Neil E. Ross, J. ), rendered August 4, 2015, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the fifth degree and criminal possession of a controlled substance in the fifth and seventh degrees, and sentencing her to a conditional discharge for a period of one year, unanimously affirmed.",
"The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]). There is no basis for disturbing the jury's credibility determinations, including its rejection of defendant's explanation for her possession of prerecorded buy money and a package of drugs that matched the package that another person sold to an undercover officer, immediately after the other person interacted with defendant. The evidence supports the conclusion that defendant was a participant in the drug transaction, whose role was to hold the drugs to be sold and the money received (see generally People v Bello, 92 NY2d 523 [1998]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: FEBRUARY 18, 2020 CLERK"
]
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DETAILED ACTION
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Reasons for Allowance Claims 1-13, 15-21 are allowed. The following is an examiner’s statement of reasons for allowance: None of the prior art of record discloses, alone or in combination, the device, non-transitory computer readable medium comprising executable instructions and the method wherein A device, comprising: a processing system including a processor; and a memory that stores executable instructions that, when executed by the processing system, facilitate performance of operations, the operations comprising: obtaining a credential from a user equipment; verifying the credential; responsive to the verifying of the credential, identifying a plurality of activities engaged in by the user equipment, wherein the plurality of activities includes browsing to a first website and browsing to a second website; generating or modifying a signature based on the identifying of the plurality of activities; obtaining a request for a content item from the user equipment; identifying inventory that is available in the content item; anonymizing the signature, resulting in an anonymized signature; providing the anonymized signature to a first advertiser and a second advertiser; obtaining a first bid from the first advertiser and a second bid from the second advertiser responsive to the providing of the anonymized signature; selecting at least one advertisement to populate the inventory.
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 JOE CHACKO whose telephone number is (571)270-3318. The examiner can normally be reached Monday-Friday 7am-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, Philip Chea can be reached on 5712723951. 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.
/JOE CHACKO/Primary Examiner, Art Unit 2457 | 2022-07-13T16:27:07 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Reasons for Allowance Claims 1-13, 15-21 are allowed. The following is an examiner’s statement of reasons for allowance: None of the prior art of record discloses, alone or in combination, the device, non-transitory computer readable medium comprising executable instructions and the method wherein A device, comprising: a processing system including a processor; and a memory that stores executable instructions that, when executed by the processing system, facilitate performance of operations, the operations comprising: obtaining a credential from a user equipment; verifying the credential; responsive to the verifying of the credential, identifying a plurality of activities engaged in by the user equipment, wherein the plurality of activities includes browsing to a first website and browsing to a second website; generating or modifying a signature based on the identifying of the plurality of activities; obtaining a request for a content item from the user equipment; identifying inventory that is available in the content item; anonymizing the signature, resulting in an anonymized signature; providing the anonymized signature to a first advertiser and a second advertiser; obtaining a first bid from the first advertiser and a second bid from the second advertiser responsive to the providing of the anonymized signature; selecting at least one advertisement to populate the inventory. 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 JOE CHACKO whose telephone number is (571)270-3318. The examiner can normally be reached Monday-Friday 7am-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, Philip Chea can be reached on 5712723951. 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. /JOE CHACKO/Primary Examiner, Art Unit 2457"
]
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DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . 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 10/26/2022 has been entered. Response to Amendment This Office Action is in response to Applicant’s amendment filed 10/26/2022 wherein Claims 1, 5, and 8-9 are amended, Claim 11 is canceled, and no new claims have been added. Therefore Claims 1-2 and 4-10 are currently pending within the application. The Applicant’s amendments to the claims have overcome the claim objection with regards to claim 9. However, the claims 5 and 8 are still objected to. The Examiner has updated the claim objections for claims 5 and 8 below in view of the applicant’s amendments filed 10/26/2022. The Applicant’s amendments to the claims has overcome each and every claim rejection under 35 U.S.C. 112(a) set forth within the Final Rejection dated 7/26/2022. Therefore, the rejection of claim 11 under 35 U.S.C. 112(a) has been withdrawn in view of the cancelation of claim 11. The Applicant’s amendments to the claims has overcome each and every claim rejection under 35 U.S.C. 112(b) set forth within the Final Rejection dated 7/26/2022. Therefore, each and every rejection under 35 U.S.C. 112(b) set forth within the Final Rejection dated 7/26/2022 is withdrawn at this time. Response to Arguments Applicant’s arguments, see pages 2-3, filed 10/26/2022, with respect to the rejection(s) of claim(s) 1-2, 4, and 11 under 35 U.S.C. 102(a)(1) have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Kawai et al. (US 2011/0213307 A1) and Woehr et al. (US 2012/0078200 A1). Claim Rejections - 35 USC § 112 The following is a quotation of the first paragraph of 35 U.S.C. 112(a): (a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-2 and 4-10 rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 1, lines 23-24 recite “the claws each having a spring action restoring force”. The Applicant’s Specification dated 9/29/2022 lacks any explicit recitation of “the claws each having a spring action restoring force”. Rather, the first and second arms have a spring action restoring force (see page 10, line 2 “The slightly parted arms 307, 308 are thus stored with spring action restoring force” and page 10, second to last line through page 11, line 1). Therefore, Claim 1, lines 23-24 recitation of “the claws each having a spring action restoring force” contain subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor at the time the application was filed, had possession of the claimed invention. Claims 2 and 4-10 are rejected under 35 U.S.C. 112(a) as they are dependent upon a rejected claim under 35 U.S.C. 112(a).
Claim Objections Claims 5 and 8 are objected to because of the following informalities: Claim 5, line 2 should be amended to recite “catheter assembly further comprises [[a]] the catheter tube, [[the]] a catheter holder, a silicone tube” as claim 1, line 6 has previously recited “a catheter tube” and “catheter holder” lacks antecedent basis. Claim 8, line 2 should be amended to recite “catheter assembly further comprises [[a]] the catheter tube, [[the]] a catheter holder, a silicone tube” as claim 1, line 6 has previously recited “a catheter tube” and “catheter holder” lacks antecedent basis. Appropriate correction is required. Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-2 and 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kawai et al. (US 2011/0213307; hereinafter referred to as Kawai) in view of Woehr et al. (US 2012/0078200 A1; hereinafter referred to as Woehr). With regards to claim 1, Kawai discloses (Figs. 1-7, 10, 15, and 23-24) an intravenous cannula (see [0064] “indwelling needle assembly”) comprising: a needle (10) having a distal end portion with a bevel/tip (18) and a bulge (20), the bulge located nearer a proximal end of the needle as compared to the bevel/tip (see Fig. 3 which shows the bulge nearer a proximal end of the needle as compared to the bevel/tip); an intravenous delivery catheter assembly (see Fig. 1 and Fig. 23) removably located coaxially over the needle in such a manner that the needle can be withdrawn from the intravenous delivery catheter assembly after successful placement of a delivery end of a catheter tube (14) in a patient vein (see [0114-0115]); and a tip protector assembly (78) coaxially and moveably arranged over the needle and removably attached to a proximal portion of the intravenous delivery catheter assembly and adapted to protectively cover the bevel/tip (see Figs. 14-15 and [0110]), the tip protector assembly comprising: a retaining strip (92) forming a base (96) defining a proximal through-bore (108); a stem (106) extending from one side of the base in a distal direction and having a parallel portion (98) bent in a direction parallel to the base and defining a distal through-bore (110) upon the parallel portion in such a manner that the proximal and distal through-bores provide a passage for the needle (see [0088]); the proximal through-bore having a profile larger than a principle profile of the needle but lesser than an outer profile of the bulge (see [0087-0088]); the distal through-bore having a profile larger than the outer profile of the bulge, allowing the bulge to pass through the distal through-bore (see [0087-0088]); the stem having a length lesser than a length of the distal end portion of the needle between the bulge and the bevel/tip (see Fig. 10 which shows the stem 106 having a length lesser than a length of the needle portion between the bulge 20 and the bevel/tip 18); a first arm (100, 132) and a second arm (102, 133) each extending distally from respective other sides of the base that are adjacent to the one side attached with the stem (see Figs. 6-7); and a respective claw (134, 135 respectively) at a distal end of each of the first arm and the second arm (see Figs. 6-7). However, Kawai is silent with regards to the claws each having a spring action restoring force toward a default position to obstruct the passage for the needle and prevent the bevel/tip of the needle from emerging out of a distal end of the tip protector assembly once the bevel/tip is retracted beyond the claws. Nonetheless, Woehr teaches (Figs. 10a-10b) the claws (130; see [0073]) each having a spring action restoring force (see [0019] “When the needle is retracted past the guard walls, the resilient arms spring to the safety position” and [0075-0076] “This causes the distal end walls 130 of the needle guard to be released from their seat in the annular groove 136 and to pivot inward into the catheter hub until, as seen in Fig. 10B, the end walls 130 overlap one another at a location distally in front of the needle tip”) toward a default position (see Fig. 10b) to obstruct the passage (see [0076]) for the needle (16; see [0046]) and prevent the bevel/tip (18; see [0046]) of the needle from emerging out of a distal end (see at 130 in Fig. 10b) of the tip protector assembly (120; see [0073]) once the bevel/tip is retracted beyond the claws (see [0019] and [0075-0076]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the present invention to modify the claws of the tip protector assembly of the intravenous cannula of Kawai with a teaching of Woehr such that the claws each having a spring action restoring force toward a default position to obstruct the passage for the needle and prevent the bevel/tip of the needle from emerging out of a distal end of the tip protector assembly once the bevel/tip is retracted beyond the claws. One of ordinary skill in the art would have been motivated to make this modification, in order to form a barrier that prevents inadvertent contact with the needle tip via having the claws spring to the safety position (see [0019] of Woehr). The intravenous cannula of Kawai modified in view of a teaching of Woehr will hereinafter be referred to as the intravenous cannula of Kawai and Woehr. With regards to claim 2, the intravenous cannula of Kawai and Woehr teaches the claimed invention of claim 1, and Kawai further teaches (Figs. 6-7) the tip protector assembly (78) comprises a non reactive metallic body (see [0085] “stainless steel”). With regards to claim 4, the intravenous cannula of Kawai and Woehr teaches the claimed invention of claim 1, and Kawai further teaches (Figs. 6-7) the first (100, 132) and second (102, 133) arms of the tip protector assembly (78) further comprise respective first and second engaging portions (128, and see [0094], [0123], and [0145-0146] wherein as the first and second engaging portions 128 engage with the action ring 94 which then engages the corresponding rib 70 it can determined that the first and second engaging portions engage the corresponding rib) adapted to engage a corresponding rib (70) present inside the intravenous delivery catheter assembly (The intravenous delivery catheter assembly comprises the outer needle hub 16 wherein the outer needle hub comprises the annular groove 70 therefore the annular groove 70 is present inside the intravenous delivery catheter assembly; see [0075]) to provide secure but removable holding of the tip protector assembly within the intravenous delivery catheter assembly (see [0123]).
Claim(s) 5-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kawai and Woehr as applied to claims 1 and 4, and further in view of Baid (US 2008/0171986). With regards to claim 5, the intravenous cannula of Kawai and Woehr teaches the claimed invention of claim 1, and Kawai further teaches (Figs. 1 and 23-24) the intravenous delivery catheter assembly (see Fig. 23) further comprises a catheter tube (14), the catheter holder (16), a tube (54), and a wing body (170) that is coaxially and removably attached (see [0115] “Then, retract the inner needle 10 from the outer needle 14 by pulling back the inner needle hub 12 to retract it from the containing part 54 of the outer needle hub 16”) over the tip protector assembly (78). However, Kawai is silent with regards to the tube being a silicone tube. Nonetheless, Baid teaches (Figs. 1-12) that the tube (52) is a silicone tube (see [0036] “the silicon tube 52”). It would have been obvious to one of ordinary skill in the art before the effective filing date of the present invention to modify the tube of the intravenous cannula of Kawai and Woehr and with a teaching of Baid such that the tube is comprised of silicone. One of ordinary skill in the art would have been motivated to make this modification, as Kawai is silent with regards to material of the tube, and one of ordinary skill in the art would refer to the teaching of Baid in order to determine what material to manufacture the material of. The intravenous cannula of Kawai and Woehr modified in view of a teaching of Baid will hereinafter be referred to as the intravenous cannula of Kawai, Woehr, and Baid. With regards to claim 6, the intravenous cannula of Kawai and Woehr teaches the claimed invention of claim 1, and Kawai further teaches (Figs. 1 and 23-24) that the intravenous cannula (see [0064] “indwelling needle assembly”) further comprising a needle hub assembly (see [0064] “inner needle hub”) coaxially mounted over the needle (10; see [0064] “an inner needle hub 12 that fastens the proximal end…of said inner needle 10”) and comprising a needle hub (12), wherein a distal portion (34) of the needle hub assembly has an elongation (38) adapted to push the tip protector assembly (78) inside the intravenous delivery catheter assembly (see Fig. 1 and Fig. 23; see [0076] “the multitude of protruded plates 38 thrust into the proximal end-side opening 40 of the outer needle hub 16. In that way, the inner needle hub 12 and the outer needle hub 16 are assembled to each other in an easily detachable manner.”) to the extent that first and second engaging portions (128; and see [0094] “the first flexible side plate 100 and second flexible side plate 102…forms an anti-retraction tab 128”, [0145-0146] “the first and second engaging surface 148 and 150 provided on the action ring 94…the first engaging surface 148 and second engaging surface 150 engaged with the anti-retraction tab 128”, and [0123] “the latching protrusion 152 of the action ring 94 slides over the tapered latch surface 72 of the annular groove 70 formed along the inner periphery of the outer needle hub 16”. Therefore, as the first and second engaging portions 128 engage with the action ring 94 which engages with the corresponding rib 70, it can be determined that the first and second engaging portions engages with the corresponding rib 70.) of the tip protector assembly become removably interlocked with a corresponding rib (70) present inside the intravenous delivery catheter assembly. However, Kawi is silent with regards to a flash back chamber attached at a proximal portion of the needle hub, and a luer lock releasably attached at a proximal portion of the flash back chamber. Nonetheless, Baid teaches (Figs. 1-2) a flash back chamber (50) attached at a proximal portion (see at 20 in Fig. 2) of the needle hub (20), and a luer lock (22) releasably attached (see [0031] “and luer lock 22 can be separated from the assembly of wing housing 141 and port”) at a proximal portion (see Examiner annotated Fig. 2 below, hereinafter referred to as Fig. A) of the flash back chamber.
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It would have been obvious to one of ordinary skill in the art before the effective filing date of the present invention to modify the intravenous cannula of Kawai and Woehr with a teaching of Baid such that the intravenous cannula further comprises a flash back chamber attached at a proximal portion of the needle hub, and a luer lock releasably attached at a proximal portion of the flash back chamber. The flashback chamber attached at a proximal portion of the needle hub, and the luer lock releasably attached at a proximal portion of the flash back chamber would replace the ventilation filter 46 of the intravenous cannula of Kawai and Woehr. One of ordinary skill in the art would have been motivated to make this modification, as Baid teaches that a flash back chamber is used to ensure proper placement of the needle and catheter within the vein of the patient (see [0015] of Baid). With regards to claim 7, the intravenous cannula of Kawai, Woehr, and Baid teaches the claimed invention of claim 5, however, Kawai is silent with regards to the intravenous cannula further comprising a cover slidably arranged over the catheter tube, wherein a proximal portion of the cover is removably attached to an attachment site at a distal portion of the wing body to protectively cover the bevel/tip and the catheter tube. Nonetheless, Baid further teaches (Figs. 1-12) the intravenous cannula (10) further comprising a cover (12) slidably arranged over the catheter tube (30), wherein a proximal portion (see Examiner annotated Fig. 2 below; hereinafter referred to as Fig. B) of the cover is removably attached (see [0035] “the needle cover is removed”) to an attachment site (32) at a distal portion of the wing body (14) to protectively cover the bevel/tip (26) and the catheter tube.
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It would have been obvious to one of ordinary skill in the art before the effective filing date of the present invention to modify the intravenous cannula of Kawai, Woehr, and Baid with a further teaching of Baid such that the intravenous cannula further comprises a cover slidably arranged over the catheter tube, wherein a proximal portion of the cover is removably attached to an attachment site at a distal portion of the wing body to protectively cover the bevel/tip and the catheter tube. One of ordinary skill in the art would have been motivated to make this modification, as Baid teaches the cover protectively covers the bevel/tip of the needle and catheter tube (see [0031-0032] of Baid). With regards to claim 8, the intravenous cannula of Kawai and Woehr teaches the claimed invention of claim 4, and Kawai further teaches (Figs. 1 and 23-24) the intravenous delivery catheter assembly (see Fig. 23) further comprises a catheter tube (14), the catheter holder (16), a tube (54), and a wing body (170) that is coaxially and removably attached (see [0115] “Then, retract the inner needle 10 from the outer needle 14 by pulling back the inner needle hub 12 to retract it from the containing part 54 of the outer needle hub 16”) over the tip protector assembly (78). However, Kawai is silent with regards to the tube being a silicone tube. Nonetheless, Baid teaches (Figs. 1-12) that the tube (52) is a silicone tube (see [0036] “the silicone tube 52”). It would have been obvious to one of ordinary skill in the art before the effective filing date of the present invention to modify the tube of the intravenous cannula of Kawai and Woehr and with a teaching of Baid such that the tube is comprised of silicone. One of ordinary skill in the art would have been motivated to make this modification, as Kawai is silent with regards to material of the tube, and one of ordinary skill in the art would refer to the teaching of Baid in order to determine what material to manufacture the material of. The intravenous cannula of Kawai and Woehr modified in view of a teaching of Baid will hereinafter be referred to as the intravenous cannula of Kawai, Woehr, and Baid. With regards to claim 9, the intravenous cannula of Kawai, Woehr, and Baid teaches the claimed invention of claim 8, and Kawai further teaches (Figs. 1 and 23-24) that the intravenous cannula (see [0064] “indwelling needle assembly”) further comprising a needle hub assembly (see [0064] “inner needle hub”) coaxially mounted over the needle (10; see [0064] “an inner needle hub 12 that fastens the proximal end…of said inner needle 10”) and comprising a needle hub (12), wherein a distal portion (34) of the needle hub assembly has an elongation (38) adapted to push the tip protector assembly (78) inside the intravenous delivery catheter assembly (see Fig. 1 and Fig. 23; see [0076] “the multitude of protruded plates 38 thrust into the proximal end-side opening 40 of the outer needle hub 16. In that way, the inner needle hub 12 and the outer needle hub 16 are assembled to each other in an easily detachable manner.”) to the extent that first and second engaging portions (128; and see [0094] “the first flexible side plate 100 and second flexible side plate 102…forms an anti-retraction tab 128”, [0145-0146] “the first and second engaging surface 148 and 150 provided on the action ring 94…the first engaging surface 148 and second engaging surface 150 engaged with the anti-retraction tab 128”, and [0123] “the latching protrusion 152 of the action ring 94 slides over the tapered latch surface 72 of the annular groove 70 formed along the inner periphery of the outer needle hub 16”. Therefore, as the first and second engaging portions 128 engage with the action ring 94 which engages with the corresponding rib 70, it can be said that the first and second engaging portions engages with the corresponding rib 70.) of the tip protector assembly become removably interlocked with a corresponding rib (70) present inside the intravenous delivery catheter assembly. However, Kawi is silent with regards to a flash back chamber attached at a proximal portion of the needle hub, and a luer lock releasably attached at a proximal portion of the flash back chamber. Nonetheless, Baid teaches (Figs. 1-2) a flash back chamber (50) attached at a proximal portion (see at 20 in Fig. 2) of the needle hub (20), and a luer lock (22) releasably attached (see [0031] “and luer lock 22 can be separated from the assembly of wing housing 141 and port”) at a proximal portion (see Fig. A reiterated below) of the flash back chamber.
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It would have been obvious to one of ordinary skill in the art before the effective filing date of the present invention to modify the intravenous cannula of Kawai, Woehr, and Baid with a further teaching of Baid such that the intravenous cannula further comprises a flash back chamber attached at a proximal portion of the needle hub, and a luer lock releasably attached at a proximal portion of the flash back chamber. The flashback chamber attached at a proximal portion of the needle hub, and the luer lock releasably attached at a proximal portion of the flash back chamber would replace the ventilation filter 46 of the intravenous cannula of Kawai and Woehr. One of ordinary skill in the art would have been motivated to make this modification, as Baid teaches that a flash back chamber is used to ensure proper placement of the needle and catheter within the vein of the patient (see [0015] of Baid).
With regards to claim 10, the intravenous cannula of Kawai, Woehr, and Baid teaches the claimed invention of claim 9, however, Kawai is silent with regards to the intravenous cannula further comprising a cover slidably arranged over the catheter tube, wherein a proximal portion of the cover is removably attached to an attachment site at a distal portion of the wing body to protectively cover the bevel/tip and the catheter tube. Nonetheless, Baid further teaches (Figs. 1-12) the intravenous cannula (10) further comprising a cover (12) slidably arranged over the catheter tube (30), wherein a proximal portion (see Fig. B reiterated below) of the cover is removably attached (see [0035] “the needle cover is removed”) to an attachment site (32) at a distal portion of the wing body (14) to protectively cover the bevel/tip (26) and the catheter tube.
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It would have been obvious to one of ordinary skill in the art before the effective filing date of the present invention to modify the intravenous cannula of Kawai, Woehr, and Baid with a further teaching of Baid such that the intravenous cannula further comprises a cover slidably arranged over the catheter tube, wherein a proximal portion of the cover is removably attached to an attachment site at a distal portion of the wing body to protectively cover the bevel/tip and the catheter tube. One of ordinary skill in the art would have been motivated to make this modification, as Baid teaches the cover protectively covers the bevel/tip of the needle and catheter tube (see [0031-0032] of Baid). Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Muse et al. (US 2018/0256209 A1) see Figs. 6-10. Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT F ALLEN whose telephone number is (571)272-6232. The examiner can normally be reached Monday-Friday 9:00 AM - 5:00 PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bhisma Mehta can be reached on (571)272-3383. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of 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 F ALLEN/Examiner, Art Unit 3783 /KATHERINE H SCHWIKER/Primary Examiner, Art Unit 3771 | 2022-12-21T23:44:30 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . 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 10/26/2022 has been entered. Response to Amendment This Office Action is in response to Applicant’s amendment filed 10/26/2022 wherein Claims 1, 5, and 8-9 are amended, Claim 11 is canceled, and no new claims have been added. Therefore Claims 1-2 and 4-10 are currently pending within the application.",
"The Applicant’s amendments to the claims have overcome the claim objection with regards to claim 9. However, the claims 5 and 8 are still objected to. The Examiner has updated the claim objections for claims 5 and 8 below in view of the applicant’s amendments filed 10/26/2022. The Applicant’s amendments to the claims has overcome each and every claim rejection under 35 U.S.C. 112(a) set forth within the Final Rejection dated 7/26/2022. Therefore, the rejection of claim 11 under 35 U.S.C. 112(a) has been withdrawn in view of the cancelation of claim 11. The Applicant’s amendments to the claims has overcome each and every claim rejection under 35 U.S.C. 112(b) set forth within the Final Rejection dated 7/26/2022.",
"Therefore, each and every rejection under 35 U.S.C. 112(b) set forth within the Final Rejection dated 7/26/2022 is withdrawn at this time. Response to Arguments Applicant’s arguments, see pages 2-3, filed 10/26/2022, with respect to the rejection(s) of claim(s) 1-2, 4, and 11 under 35 U.S.C. 102(a)(1) have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Kawai et al. (US 2011/0213307 A1) and Woehr et al. (US 2012/0078200 A1). Claim Rejections - 35 USC § 112 The following is a quotation of the first paragraph of 35 U.S.C. 112(a): (a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention. The following is a quotation of the first paragraph of pre-AIA 35 U.S.C.",
"112: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. Claims 1-2 and 4-10 rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 1, lines 23-24 recite “the claws each having a spring action restoring force”. The Applicant’s Specification dated 9/29/2022 lacks any explicit recitation of “the claws each having a spring action restoring force”.",
"Rather, the first and second arms have a spring action restoring force (see page 10, line 2 “The slightly parted arms 307, 308 are thus stored with spring action restoring force” and page 10, second to last line through page 11, line 1). Therefore, Claim 1, lines 23-24 recitation of “the claws each having a spring action restoring force” contain subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor at the time the application was filed, had possession of the claimed invention. Claims 2 and 4-10 are rejected under 35 U.S.C. 112(a) as they are dependent upon a rejected claim under 35 U.S.C. 112(a). Claim Objections Claims 5 and 8 are objected to because of the following informalities: Claim 5, line 2 should be amended to recite “catheter assembly further comprises [[a]] the catheter tube, [[the]] a catheter holder, a silicone tube” as claim 1, line 6 has previously recited “a catheter tube” and “catheter holder” lacks antecedent basis.",
"Claim 8, line 2 should be amended to recite “catheter assembly further comprises [[a]] the catheter tube, [[the]] a catheter holder, a silicone tube” as claim 1, line 6 has previously recited “a catheter tube” and “catheter holder” lacks antecedent basis. Appropriate correction is required. Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.",
"Claim(s) 1-2 and 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kawai et al. (US 2011/0213307; hereinafter referred to as Kawai) in view of Woehr et al. (US 2012/0078200 A1; hereinafter referred to as Woehr). With regards to claim 1, Kawai discloses (Figs. 1-7, 10, 15, and 23-24) an intravenous cannula (see [0064] “indwelling needle assembly”) comprising: a needle (10) having a distal end portion with a bevel/tip (18) and a bulge (20), the bulge located nearer a proximal end of the needle as compared to the bevel/tip (see Fig. 3 which shows the bulge nearer a proximal end of the needle as compared to the bevel/tip); an intravenous delivery catheter assembly (see Fig. 1 and Fig. 23) removably located coaxially over the needle in such a manner that the needle can be withdrawn from the intravenous delivery catheter assembly after successful placement of a delivery end of a catheter tube (14) in a patient vein (see [0114-0115]); and a tip protector assembly (78) coaxially and moveably arranged over the needle and removably attached to a proximal portion of the intravenous delivery catheter assembly and adapted to protectively cover the bevel/tip (see Figs.",
"14-15 and [0110]), the tip protector assembly comprising: a retaining strip (92) forming a base (96) defining a proximal through-bore (108); a stem (106) extending from one side of the base in a distal direction and having a parallel portion (98) bent in a direction parallel to the base and defining a distal through-bore (110) upon the parallel portion in such a manner that the proximal and distal through-bores provide a passage for the needle (see [0088]); the proximal through-bore having a profile larger than a principle profile of the needle but lesser than an outer profile of the bulge (see [0087-0088]); the distal through-bore having a profile larger than the outer profile of the bulge, allowing the bulge to pass through the distal through-bore (see [0087-0088]); the stem having a length lesser than a length of the distal end portion of the needle between the bulge and the bevel/tip (see Fig. 10 which shows the stem 106 having a length lesser than a length of the needle portion between the bulge 20 and the bevel/tip 18); a first arm (100, 132) and a second arm (102, 133) each extending distally from respective other sides of the base that are adjacent to the one side attached with the stem (see Figs.",
"6-7); and a respective claw (134, 135 respectively) at a distal end of each of the first arm and the second arm (see Figs. 6-7). However, Kawai is silent with regards to the claws each having a spring action restoring force toward a default position to obstruct the passage for the needle and prevent the bevel/tip of the needle from emerging out of a distal end of the tip protector assembly once the bevel/tip is retracted beyond the claws. Nonetheless, Woehr teaches (Figs. 10a-10b) the claws (130; see [0073]) each having a spring action restoring force (see [0019] “When the needle is retracted past the guard walls, the resilient arms spring to the safety position” and [0075-0076] “This causes the distal end walls 130 of the needle guard to be released from their seat in the annular groove 136 and to pivot inward into the catheter hub until, as seen in Fig. 10B, the end walls 130 overlap one another at a location distally in front of the needle tip”) toward a default position (see Fig.",
"10b) to obstruct the passage (see [0076]) for the needle (16; see [0046]) and prevent the bevel/tip (18; see [0046]) of the needle from emerging out of a distal end (see at 130 in Fig. 10b) of the tip protector assembly (120; see [0073]) once the bevel/tip is retracted beyond the claws (see [0019] and [0075-0076]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the present invention to modify the claws of the tip protector assembly of the intravenous cannula of Kawai with a teaching of Woehr such that the claws each having a spring action restoring force toward a default position to obstruct the passage for the needle and prevent the bevel/tip of the needle from emerging out of a distal end of the tip protector assembly once the bevel/tip is retracted beyond the claws. One of ordinary skill in the art would have been motivated to make this modification, in order to form a barrier that prevents inadvertent contact with the needle tip via having the claws spring to the safety position (see [0019] of Woehr). The intravenous cannula of Kawai modified in view of a teaching of Woehr will hereinafter be referred to as the intravenous cannula of Kawai and Woehr. With regards to claim 2, the intravenous cannula of Kawai and Woehr teaches the claimed invention of claim 1, and Kawai further teaches (Figs.",
"6-7) the tip protector assembly (78) comprises a non reactive metallic body (see [0085] “stainless steel”). With regards to claim 4, the intravenous cannula of Kawai and Woehr teaches the claimed invention of claim 1, and Kawai further teaches (Figs. 6-7) the first (100, 132) and second (102, 133) arms of the tip protector assembly (78) further comprise respective first and second engaging portions (128, and see [0094], [0123], and [0145-0146] wherein as the first and second engaging portions 128 engage with the action ring 94 which then engages the corresponding rib 70 it can determined that the first and second engaging portions engage the corresponding rib) adapted to engage a corresponding rib (70) present inside the intravenous delivery catheter assembly (The intravenous delivery catheter assembly comprises the outer needle hub 16 wherein the outer needle hub comprises the annular groove 70 therefore the annular groove 70 is present inside the intravenous delivery catheter assembly; see [0075]) to provide secure but removable holding of the tip protector assembly within the intravenous delivery catheter assembly (see [0123]). Claim(s) 5-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kawai and Woehr as applied to claims 1 and 4, and further in view of Baid (US 2008/0171986). With regards to claim 5, the intravenous cannula of Kawai and Woehr teaches the claimed invention of claim 1, and Kawai further teaches (Figs.",
"1 and 23-24) the intravenous delivery catheter assembly (see Fig. 23) further comprises a catheter tube (14), the catheter holder (16), a tube (54), and a wing body (170) that is coaxially and removably attached (see [0115] “Then, retract the inner needle 10 from the outer needle 14 by pulling back the inner needle hub 12 to retract it from the containing part 54 of the outer needle hub 16”) over the tip protector assembly (78). However, Kawai is silent with regards to the tube being a silicone tube. Nonetheless, Baid teaches (Figs. 1-12) that the tube (52) is a silicone tube (see [0036] “the silicon tube 52”). It would have been obvious to one of ordinary skill in the art before the effective filing date of the present invention to modify the tube of the intravenous cannula of Kawai and Woehr and with a teaching of Baid such that the tube is comprised of silicone.",
"One of ordinary skill in the art would have been motivated to make this modification, as Kawai is silent with regards to material of the tube, and one of ordinary skill in the art would refer to the teaching of Baid in order to determine what material to manufacture the material of. The intravenous cannula of Kawai and Woehr modified in view of a teaching of Baid will hereinafter be referred to as the intravenous cannula of Kawai, Woehr, and Baid. With regards to claim 6, the intravenous cannula of Kawai and Woehr teaches the claimed invention of claim 1, and Kawai further teaches (Figs. 1 and 23-24) that the intravenous cannula (see [0064] “indwelling needle assembly”) further comprising a needle hub assembly (see [0064] “inner needle hub”) coaxially mounted over the needle (10; see [0064] “an inner needle hub 12 that fastens the proximal end…of said inner needle 10”) and comprising a needle hub (12), wherein a distal portion (34) of the needle hub assembly has an elongation (38) adapted to push the tip protector assembly (78) inside the intravenous delivery catheter assembly (see Fig. 1 and Fig. 23; see [0076] “the multitude of protruded plates 38 thrust into the proximal end-side opening 40 of the outer needle hub 16.",
"In that way, the inner needle hub 12 and the outer needle hub 16 are assembled to each other in an easily detachable manner.”) to the extent that first and second engaging portions (128; and see [0094] “the first flexible side plate 100 and second flexible side plate 102…forms an anti-retraction tab 128”, [0145-0146] “the first and second engaging surface 148 and 150 provided on the action ring 94…the first engaging surface 148 and second engaging surface 150 engaged with the anti-retraction tab 128”, and [0123] “the latching protrusion 152 of the action ring 94 slides over the tapered latch surface 72 of the annular groove 70 formed along the inner periphery of the outer needle hub 16”. Therefore, as the first and second engaging portions 128 engage with the action ring 94 which engages with the corresponding rib 70, it can be determined that the first and second engaging portions engages with the corresponding rib 70.)",
"of the tip protector assembly become removably interlocked with a corresponding rib (70) present inside the intravenous delivery catheter assembly. However, Kawi is silent with regards to a flash back chamber attached at a proximal portion of the needle hub, and a luer lock releasably attached at a proximal portion of the flash back chamber. Nonetheless, Baid teaches (Figs. 1-2) a flash back chamber (50) attached at a proximal portion (see at 20 in Fig. 2) of the needle hub (20), and a luer lock (22) releasably attached (see [0031] “and luer lock 22 can be separated from the assembly of wing housing 141 and port”) at a proximal portion (see Examiner annotated Fig. 2 below, hereinafter referred to as Fig. A) of the flash back chamber. PNG media_image1.png 483 727 media_image1.png Greyscale It would have been obvious to one of ordinary skill in the art before the effective filing date of the present invention to modify the intravenous cannula of Kawai and Woehr with a teaching of Baid such that the intravenous cannula further comprises a flash back chamber attached at a proximal portion of the needle hub, and a luer lock releasably attached at a proximal portion of the flash back chamber.",
"The flashback chamber attached at a proximal portion of the needle hub, and the luer lock releasably attached at a proximal portion of the flash back chamber would replace the ventilation filter 46 of the intravenous cannula of Kawai and Woehr. One of ordinary skill in the art would have been motivated to make this modification, as Baid teaches that a flash back chamber is used to ensure proper placement of the needle and catheter within the vein of the patient (see [0015] of Baid). With regards to claim 7, the intravenous cannula of Kawai, Woehr, and Baid teaches the claimed invention of claim 5, however, Kawai is silent with regards to the intravenous cannula further comprising a cover slidably arranged over the catheter tube, wherein a proximal portion of the cover is removably attached to an attachment site at a distal portion of the wing body to protectively cover the bevel/tip and the catheter tube. Nonetheless, Baid further teaches (Figs.",
"1-12) the intravenous cannula (10) further comprising a cover (12) slidably arranged over the catheter tube (30), wherein a proximal portion (see Examiner annotated Fig. 2 below; hereinafter referred to as Fig. B) of the cover is removably attached (see [0035] “the needle cover is removed”) to an attachment site (32) at a distal portion of the wing body (14) to protectively cover the bevel/tip (26) and the catheter tube. PNG media_image2.png 275 707 media_image2.png Greyscale It would have been obvious to one of ordinary skill in the art before the effective filing date of the present invention to modify the intravenous cannula of Kawai, Woehr, and Baid with a further teaching of Baid such that the intravenous cannula further comprises a cover slidably arranged over the catheter tube, wherein a proximal portion of the cover is removably attached to an attachment site at a distal portion of the wing body to protectively cover the bevel/tip and the catheter tube.",
"One of ordinary skill in the art would have been motivated to make this modification, as Baid teaches the cover protectively covers the bevel/tip of the needle and catheter tube (see [0031-0032] of Baid). With regards to claim 8, the intravenous cannula of Kawai and Woehr teaches the claimed invention of claim 4, and Kawai further teaches (Figs. 1 and 23-24) the intravenous delivery catheter assembly (see Fig. 23) further comprises a catheter tube (14), the catheter holder (16), a tube (54), and a wing body (170) that is coaxially and removably attached (see [0115] “Then, retract the inner needle 10 from the outer needle 14 by pulling back the inner needle hub 12 to retract it from the containing part 54 of the outer needle hub 16”) over the tip protector assembly (78).",
"However, Kawai is silent with regards to the tube being a silicone tube. Nonetheless, Baid teaches (Figs. 1-12) that the tube (52) is a silicone tube (see [0036] “the silicone tube 52”). It would have been obvious to one of ordinary skill in the art before the effective filing date of the present invention to modify the tube of the intravenous cannula of Kawai and Woehr and with a teaching of Baid such that the tube is comprised of silicone. One of ordinary skill in the art would have been motivated to make this modification, as Kawai is silent with regards to material of the tube, and one of ordinary skill in the art would refer to the teaching of Baid in order to determine what material to manufacture the material of. The intravenous cannula of Kawai and Woehr modified in view of a teaching of Baid will hereinafter be referred to as the intravenous cannula of Kawai, Woehr, and Baid. With regards to claim 9, the intravenous cannula of Kawai, Woehr, and Baid teaches the claimed invention of claim 8, and Kawai further teaches (Figs.",
"1 and 23-24) that the intravenous cannula (see [0064] “indwelling needle assembly”) further comprising a needle hub assembly (see [0064] “inner needle hub”) coaxially mounted over the needle (10; see [0064] “an inner needle hub 12 that fastens the proximal end…of said inner needle 10”) and comprising a needle hub (12), wherein a distal portion (34) of the needle hub assembly has an elongation (38) adapted to push the tip protector assembly (78) inside the intravenous delivery catheter assembly (see Fig.",
"1 and Fig. 23; see [0076] “the multitude of protruded plates 38 thrust into the proximal end-side opening 40 of the outer needle hub 16. In that way, the inner needle hub 12 and the outer needle hub 16 are assembled to each other in an easily detachable manner.”) to the extent that first and second engaging portions (128; and see [0094] “the first flexible side plate 100 and second flexible side plate 102…forms an anti-retraction tab 128”, [0145-0146] “the first and second engaging surface 148 and 150 provided on the action ring 94…the first engaging surface 148 and second engaging surface 150 engaged with the anti-retraction tab 128”, and [0123] “the latching protrusion 152 of the action ring 94 slides over the tapered latch surface 72 of the annular groove 70 formed along the inner periphery of the outer needle hub 16”. Therefore, as the first and second engaging portions 128 engage with the action ring 94 which engages with the corresponding rib 70, it can be said that the first and second engaging portions engages with the corresponding rib 70.)",
"of the tip protector assembly become removably interlocked with a corresponding rib (70) present inside the intravenous delivery catheter assembly. However, Kawi is silent with regards to a flash back chamber attached at a proximal portion of the needle hub, and a luer lock releasably attached at a proximal portion of the flash back chamber. Nonetheless, Baid teaches (Figs. 1-2) a flash back chamber (50) attached at a proximal portion (see at 20 in Fig.",
"2) of the needle hub (20), and a luer lock (22) releasably attached (see [0031] “and luer lock 22 can be separated from the assembly of wing housing 141 and port”) at a proximal portion (see Fig. A reiterated below) of the flash back chamber. PNG media_image1.png 483 727 media_image1.png Greyscale It would have been obvious to one of ordinary skill in the art before the effective filing date of the present invention to modify the intravenous cannula of Kawai, Woehr, and Baid with a further teaching of Baid such that the intravenous cannula further comprises a flash back chamber attached at a proximal portion of the needle hub, and a luer lock releasably attached at a proximal portion of the flash back chamber.",
"The flashback chamber attached at a proximal portion of the needle hub, and the luer lock releasably attached at a proximal portion of the flash back chamber would replace the ventilation filter 46 of the intravenous cannula of Kawai and Woehr. One of ordinary skill in the art would have been motivated to make this modification, as Baid teaches that a flash back chamber is used to ensure proper placement of the needle and catheter within the vein of the patient (see [0015] of Baid). With regards to claim 10, the intravenous cannula of Kawai, Woehr, and Baid teaches the claimed invention of claim 9, however, Kawai is silent with regards to the intravenous cannula further comprising a cover slidably arranged over the catheter tube, wherein a proximal portion of the cover is removably attached to an attachment site at a distal portion of the wing body to protectively cover the bevel/tip and the catheter tube. Nonetheless, Baid further teaches (Figs.",
"1-12) the intravenous cannula (10) further comprising a cover (12) slidably arranged over the catheter tube (30), wherein a proximal portion (see Fig. B reiterated below) of the cover is removably attached (see [0035] “the needle cover is removed”) to an attachment site (32) at a distal portion of the wing body (14) to protectively cover the bevel/tip (26) and the catheter tube. PNG media_image2.png 275 707 media_image2.png Greyscale It would have been obvious to one of ordinary skill in the art before the effective filing date of the present invention to modify the intravenous cannula of Kawai, Woehr, and Baid with a further teaching of Baid such that the intravenous cannula further comprises a cover slidably arranged over the catheter tube, wherein a proximal portion of the cover is removably attached to an attachment site at a distal portion of the wing body to protectively cover the bevel/tip and the catheter tube. One of ordinary skill in the art would have been motivated to make this modification, as Baid teaches the cover protectively covers the bevel/tip of the needle and catheter tube (see [0031-0032] of Baid). Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.",
"Muse et al. (US 2018/0256209 A1) see Figs. 6-10. Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT F ALLEN whose telephone number is (571)272-6232. The examiner can normally be reached Monday-Friday 9:00 AM - 5:00 PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bhisma Mehta can be reached on (571)272-3383. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of 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 F ALLEN/Examiner, Art Unit 3783 /KATHERINE H SCHWIKER/Primary Examiner, Art Unit 3771"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-12-25.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
TAL PROPERTIES OF POMONA, LLC, and AVROHOM MANES, 17-CV-02928 (CS) Plaintiffs, REPLY DECLARATION OF -against- BRADLEY J. NASH IN SUPPORT OF MOTION FOR RELIEF FROM VILLAGE OF POMONA, BRETT YAGEL, ORDER AND JUDGMENT MAYOR OF THE VILLAGE OF POMONA, and DORIS ULMAN,
Defendants.
Pursuant to 28 U.S.C. § 1746, Bradley J. Nash, an attorney duly licensed to practice
before this Court, declares the following to be true under penalty of perjury:
1. I am counsel for the Plaintiffs Tal Properties of Pomona, LLC and Avrohom
Manes in the above-captioned matter.
2. I make this reply declaration in support of Plaintiffs’ motion for relief from the
order of this Court, dated January 10, 2018, granting Defendants’ motion to dismiss the
Complaint (the “Order”), and the judgment of dismissal, entered on January 12, 2018 (the
“Judgment”), pursuant to Fed. R. Civ. P. 60(b)(2), based on newly-discovered evidence, and
60(b)(3), based on Defendants’ misconduct in failing to provide land and building records
regarding comparable properties in response to Plaintiffs’ FOIL requests.
3. The purpose of this declaration is to place before the Court certain documents
referenced in the accompanying memorandum of law.
4. Attached hereto as Exhibit 1 is a true and correct copy of an Affirmation of
Esther Noe Engelson, dated November 9, 2018. 5. Attached hereto as Exhibit 2 is a true and correct copy of a Complaint in the
matter Central UTA of Monsey v. Village of Airmont, Case No. 7:18-cv-11103 (S.D.N.Y.).
6. Attached hereto as Exhibit 3 is a true and correct copy of a transcript of a
conversation among Louis Zummo, Brett Yagel and Noreen Shea.
7. Although the Human Rights Report is dated June 4, 2018, Plaintiffs did not
receive a copy of the Report until June 22, 2018. Plaintiffs did not receive a copy of the
investigation file (including witness interview statements and voluminous emails collected by the
investigator) until mid-July. After receiving the file, we reviewed and analyzed the records and
also conducted our own investigation and interviews of community members, and prepared the
motion papers.
Dated: January 17, 2019 New York, New York
______________________ BRADLEY J. NASH
2 | 2019-01-18 | [
"UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK TAL PROPERTIES OF POMONA, LLC, and AVROHOM MANES, 17-CV-02928 (CS) Plaintiffs, REPLY DECLARATION OF -against- BRADLEY J. NASH IN SUPPORT OF MOTION FOR RELIEF FROM VILLAGE OF POMONA, BRETT YAGEL, ORDER AND JUDGMENT MAYOR OF THE VILLAGE OF POMONA, and DORIS ULMAN, Defendants. Pursuant to 28 U.S.C. § 1746, Bradley J. Nash, an attorney duly licensed to practice before this Court, declares the following to be true under penalty of perjury: 1. I am counsel for the Plaintiffs Tal Properties of Pomona, LLC and Avrohom Manes in the above-captioned matter. 2. I make this reply declaration in support of Plaintiffs’ motion for relief from the order of this Court, dated January 10, 2018, granting Defendants’ motion to dismiss the Complaint (the “Order”), and the judgment of dismissal, entered on January 12, 2018 (the “Judgment”), pursuant to Fed.",
"R. Civ. P. 60(b)(2), based on newly-discovered evidence, and 60(b)(3), based on Defendants’ misconduct in failing to provide land and building records regarding comparable properties in response to Plaintiffs’ FOIL requests. 3. The purpose of this declaration is to place before the Court certain documents referenced in the accompanying memorandum of law. 4. Attached hereto as Exhibit 1 is a true and correct copy of an Affirmation of Esther Noe Engelson, dated November 9, 2018. 5. Attached hereto as Exhibit 2 is a true and correct copy of a Complaint in the matter Central UTA of Monsey v. Village of Airmont, Case No.",
"7:18-cv-11103 (S.D.N.Y.). 6. Attached hereto as Exhibit 3 is a true and correct copy of a transcript of a conversation among Louis Zummo, Brett Yagel and Noreen Shea. 7. Although the Human Rights Report is dated June 4, 2018, Plaintiffs did not receive a copy of the Report until June 22, 2018. Plaintiffs did not receive a copy of the investigation file (including witness interview statements and voluminous emails collected by the investigator) until mid-July. After receiving the file, we reviewed and analyzed the records and also conducted our own investigation and interviews of community members, and prepared the motion papers.",
"Dated: January 17, 2019 New York, New York ______________________ BRADLEY J. NASH 2"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/58480863/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Putnam Absolute Return 300 Fund Before you invest, you may wish to review the funds prospectus, which contains more information about the fund and its risks. You may obtain the prospectus and other information about the fund, including the statement of additional information (SAI) and most recent reports to shareholders, at no cost by visiting putnam.com/funddocuments, calling 1-800-225-1581, or e-mailing Putnam at funddocuments@putnam.com. The funds prospectus and SAI, both dated 2/28/11, as supplemented from time to time, are incorporated by reference into this summary prospectus. Goal Putnam Absolute Return 300 Fund seeks to earn a positive total return that exceeds the rate of inflation by 300 basis points (or 3.00%) on an annualized basis over a reasonable period of time (generally at least three years or more) regardless of market conditions. Fees and expenses The following table describes the fees and expenses you may pay if you buy and hold shares of the fund. You may qualify for sales charge discounts if you and your family invest, or agree to invest in the future, at least $500,000 in Putnam funds. More information about these and other discounts is available from your financial advisor and in How do I buy fund shares? beginning on page 41 of the funds prospectus and in How to buy shares beginning on page II-1 of the funds statement of additional information (SAI). Shareholder fees (fees paid directly from your investment) Maximum deferred sales charge Maximum sales charge (load) (load) (as a percentage of original imposed on purchases (as a purchase price or redemption Share class percentage of offering price) proceeds, whichever is lower) Class A 1.00% NONE* Class B NONE 1.00%** Class C NONE 1.00% Class M 0.75% NONE* Class R NONE NONE Class Y NONE NONE 2 Annual fund operating expenses (expenses you pay each year as a percentage of the value of your investment) *** Total annual fund operating expenses Distri- Total after Manage- bution and annual fund Expense expense Share ment service Other operating reim- reimburse- class fees**** (12b-1) fees expenses expenses bursement ment Class A 0.61% 0.25% 0.22% 1.08% (0.20)% 0.88% Class B 0.61% 0.45% 0.22% 1.28% (0.20)% 1.08% Class C 0.61% 1.00% 0.22% 1.83% (0.20)% 1.63% Class M 0.61% 0.30% 0.22% 1.13% (0.20)% 0.93% Class R 0.61% 0.50% 0.22% 1.33% (0.20)% 1.13% Class Y 0.61% N/A 0.22% 0.83% (0.20)% 0.63% * A deferred sales charge of 1.00% on class A shares and of 0.30% on class M shares (0.40% for class M shares purchased before 4/1/10) may be imposed on certain redemptions of shares bought without an initial sales charge. ** This charge is phased out over two years. *** Restated to reflect projected expenses under a management contract effective 2/1/10 and Putnam Investment Management, LLCs contractual obligation through at least 2/29/12 to limit total annual operating expenses (before any performance adjustment to the funds base management fee and excluding brokerage, interest, taxes, investment-related expenses, extraordinary expenses and payments under the funds distribution plans) to an annual rate of 0.60% of the funds average net assets. This obligation may be modified or discontinued only with approval of the funds Board of Trustees. **** Management fees are subject to a performance adjustment. Example The following hypothetical example is intended to help you compare the cost of investing in the fund with the cost of investing in other funds. It assumes that you invest $10,000 in the fund for the time periods indicated and then, except as indicated, redeem all your shares at the end of those periods. It assumes a 5% return on your investment each year and that the funds operating expenses remain the same. Only the first year of each period in the example takes into account the expense reimbursement described above. Your actual costs may be higher or lower. Share class 1 year 3 years 5 years 10 years Class A $189 $420 $670 $1,386 Class B $210 $386 $683 $1,473 Class B (no redemption) $110 $386 $683 $1,473 Class C $266 $556 $972 $2,132 Class C (no redemption) $166 $556 $972 $2,132 Class M $169 $412 $673 $1,422 Class R $115 $402 $710 $1,584 Class Y $64 $245 $441 $1,007 3 Portfolio turnover The fund pays transaction-related costs when it buys and sells securities (or turns over its portfolio). A higher turnover rate may indicate higher transaction costs and may result in higher taxes when the funds shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or the above example, affect fund performance. The funds turnover rate in the most recent fiscal year was 219%. Investments, risks, and performance Investments The fund is designed to pursue a consistent absolute return through a broadly diversified portfolio reflecting uncorrelated fixed income strategies designed to exploit market inefficiencies across global markets and fixed income sectors. These strategies include investments in the following asset categories: (a) sovereign debt: obligations of governments in developed and emerging markets; (b) corporate credit: investment grade debt, high yield debt (sometimes referred to as junk bonds), bank loans, convertible bonds and structured credit; and (c) securitized assets: mortgage-backed securities, asset-backed securities, commercial mortgage-backed securities and collateralized mortgage obligations. In pursuing a consistent absolute return, the funds strategies are also generally intended to produce lower volatility over a reasonable period of time than has been historically associated with traditional asset classes that have earned similar levels of return over long historical periods. These traditional asset classes might include, for example, bonds with moderate exposure to interest rate and credit risks. We may consider, among other factors, credit, interest rate and prepayment risks, as well as general market conditions, when deciding whether to buy or sell investments. We may also use derivatives, such as futures, options, certain foreign currency transactions, warrants and swap contracts, for both hedging and non-hedging purposes. Accordingly, derivatives may be used to obtain or enhance exposure to the fixed income sectors and strategies mentioned above, and to hedge against risk. Putnam Absolute Return 300 Fund has a higher risk and return profile than Putnam Absolute Return 100 Fund as a result of increased exposure to the fixed income sectors and strategies mentioned above. Another distinction between the funds from time to time may be a higher cash position in Putnam Absolute Return 100 Fund. Risks It is important to understand that you can lose money by investing in the fund. Our allocation of assets among fixed income strategies and sectors may hurt performance. The prices of bonds in the funds portfolio may fall or fail to rise over extended periods of time for a variety of reasons, including both general financial market conditions and factors related to a specific issuer or industry. 4 The risks associated with bond investments include interest rate risk, which means the prices of the funds investments are likely to fall if interest rates rise. Bond investments also are subject to credit risk, which is the risk that the issuers of the funds investments may default on payment of interest or principal. Interest rate risk is generally greater for longer-term bonds, and credit risk is generally greater for below-investment-grade bonds (junk bonds). Mortgage-backed investments carry the risk that they may increase in value less when interest rates decline and decline in value more when interest rates rise. We may have to invest the proceeds from prepaid investments, including mortgage- and asset-backed investments, in other investments with less attractive terms and yields. The value of international investments traded in foreign currencies may be adversely impacted by fluctuations in exchange rates. International investments may carry risks associated with potentially less stable economies or governments, such as the risk of seizure by a foreign government, the imposition of currency or other restrictions, or high levels of inflation or deflation. International investments, particularly emerging-market investments, can be illiquid. Our use of derivatives may increase these risks by, for example, increasing investment exposure or, in the case of many over-the-counter instruments, because of the potential inability to terminate or sell derivatives positions. The fund may not achieve its goal, and it is not intended to be a complete investment program. The funds efforts to produce lower volatility returns may not be successful and may make it more difficult at times for the fund to achieve its targeted return. In addition, under certain market conditions, the fund may accept greater volatility than would typically be the case, in order to seek its targeted return. An investment in the fund is not insured or guaranteed by the Federal Deposit Insurance Corporation or any other governmentagency. Investor profile The fund is one of four Putnam Absolute Return Funds designed for investors seeking positive total return in excess of inflation by a targeted amount (100, 300, 500 or 700 basis points) on an annualized basis over a reasonable period of time regardless of market conditions. Because the fund seeks performance over a reasonable period of time, investors should be willing to wait out short-term market fluctuations and should generally have an investment horizon of at least three years or more. The fund may be suitable for you if you are considering a bond fund with moderate exposure to interest rate and creditrisks. Performance The performance information below gives some indication of the risks associated with an investment in the fund by showing the funds performance year to year and over time. The bar chart does not reflect the impact of sales charges. If it did, performance would be lower. Please remember that past performance is not necessarily an indication of future results. Monthly performance figures for the fund are available at putnam.com. 5 Average annual total returns after sales charges (for periods ending 12/31/10) Since inception Share class 1 year (12/23/08) Class A before taxes 2.05% 5.07% Class A after taxes on distributions 0.92% 4.31% Class A after taxes on distributions and sale of fund shares 1.38% 3.90% Class B before taxes 1.81% 5.10% Class C before taxes 1.32% 4.79% Class M before taxes 2.22% 5.01% Class R before taxes 2.85% 5.28% Class Y before taxes 3.35% 5.81% BofA Merrill Lynch U.S. Treasury Bill Index (no deduction for fees, expenses or taxes) 0.21% 0.25% BofA Merrill Lynch U.S. Treasury Bill Index plus 300 basis points (no deduction for fees, expenses or taxes) 3.21% 3.25% S&P 500 Index (no deduction for fees, expenses or taxes) 15.06% 23.19% Barclays Capital Aggregate Bond Index (no deduction for fees, expenses or taxes) 6.54% 6.31% After-tax returns reflect the historical highest individual federal marginal income tax rates and do not reflect state and local taxes. Actual after-tax returns depend on an investors tax situation and may differ from those shown. After-tax returns are shown for class A shares only and will vary for other classes. These after-tax returns do not apply if you hold your fund shares through a 401(k) plan, an IRA, or another tax-advantaged arrangement. The Barclays Capital Aggregate Bond Index and the S&P 500 Index are broad measures of market performance. Securities in the fund do not match those in the indexes and the performance of the fund will differ. Your funds management Investment advisor Putnam Investment Management, LLC 6 Portfolio managers Rob A. Bloemker, Head of Fixed Income, portfolio manager of the fund since2008 Carl Bell, Team Leader of Structured Credit, portfolio manager of the fund since 2008 D. William Kohli, Team Leader of Portfolio Construction and Global Strategies, portfolio manager of the fund since 2008 Kevin F. Murphy, Team Leader of High Grade Credit and Emerging Markets Debt, portfolio manager of the fund since 2008 Michael V. Salm, Team Leader of Liquid Markets, portfolio manager of the fund since 2008 Paul D. Scanlon, Team Leader of U.S. High Yield, portfolio manager of the fund since 2008 Raman Srivastava, Team Leader of Portfolio Construction, portfolio manager of the fund since 2008 Purchase and sale of fund shares You can open an account, purchase and/or sell fund shares, or exchange them for shares of another Putnam fund by contacting your financial advisor or by calling Putnam Investor Services at 1-800-225-1581. When opening an account, you must complete and mail a Putnam account application, along with a check made payable to the fund, to: Putnam Investor Services, P.O. Box 8383, Boston, MA 02266-8383. The minimum initial investment of $500 is currently waived, although Putnam reserves the right to reject initial investments under $500 at its discretion. There is no minimum for subsequent investments. You can sell your shares back to the fund or exchange them for shares of another Putnam fund any day the New York Stock Exchange is open. Shares may be sold or exchanged by mail, by phone, or online at putnam.com. Some restrictions may apply. Tax information The funds distributions will be taxed as ordinary income or capital gains unless the shares are held through a tax-advantaged arrangement. Financial intermediary compensation If you purchase the fund through a broker/dealer or other financial intermediary (such as a bank or financial advisor), the fund and its related companies may pay that intermediary for the sale of fund shares and related services. Please bear in mind that these payments may create a conflict of interest by influencing the broker/dealer or other intermediary to recommend the fund over another investment. Ask your advisor or visit your advisors Web site for more information. Additional information, including current performance, is available at putnam.com/funddocuments, by calling 1-800-225-1581, or by e-mailing Putnam at funddocuments@putnam.com. 7 | [
"Putnam Absolute Return 300 Fund Before you invest, you may wish to review the funds prospectus, which contains more information about the fund and its risks. You may obtain the prospectus and other information about the fund, including the statement of additional information (SAI) and most recent reports to shareholders, at no cost by visiting putnam.com/funddocuments, calling 1-800-225-1581, or e-mailing Putnam at funddocuments@putnam.com. The funds prospectus and SAI, both dated 2/28/11, as supplemented from time to time, are incorporated by reference into this summary prospectus. Goal Putnam Absolute Return 300 Fund seeks to earn a positive total return that exceeds the rate of inflation by 300 basis points (or 3.00%) on an annualized basis over a reasonable period of time (generally at least three years or more) regardless of market conditions. Fees and expenses The following table describes the fees and expenses you may pay if you buy and hold shares of the fund.",
"You may qualify for sales charge discounts if you and your family invest, or agree to invest in the future, at least $500,000 in Putnam funds. More information about these and other discounts is available from your financial advisor and in How do I buy fund shares? beginning on page 41 of the funds prospectus and in How to buy shares beginning on page II-1 of the funds statement of additional information (SAI). Shareholder fees (fees paid directly from your investment) Maximum deferred sales charge Maximum sales charge (load) (load) (as a percentage of original imposed on purchases (as a purchase price or redemption Share class percentage of offering price) proceeds, whichever is lower) Class A 1.00% NONE* Class B NONE 1.00%** Class C NONE 1.00% Class M 0.75% NONE* Class R NONE NONE Class Y NONE NONE 2 Annual fund operating expenses (expenses you pay each year as a percentage of the value of your investment) *** Total annual fund operating expenses Distri- Total after Manage- bution and annual fund Expense expense Share ment service Other operating reim- reimburse- class fees**** (12b-1) fees expenses expenses bursement ment Class A 0.61% 0.25% 0.22% 1.08% (0.20)% 0.88% Class B 0.61% 0.45% 0.22% 1.28% (0.20)% 1.08% Class C 0.61% 1.00% 0.22% 1.83% (0.20)% 1.63% Class M 0.61% 0.30% 0.22% 1.13% (0.20)% 0.93% Class R 0.61% 0.50% 0.22% 1.33% (0.20)% 1.13% Class Y 0.61% N/A 0.22% 0.83% (0.20)% 0.63% * A deferred sales charge of 1.00% on class A shares and of 0.30% on class M shares (0.40% for class M shares purchased before 4/1/10) may be imposed on certain redemptions of shares bought without an initial sales charge.",
"** This charge is phased out over two years. *** Restated to reflect projected expenses under a management contract effective 2/1/10 and Putnam Investment Management, LLCs contractual obligation through at least 2/29/12 to limit total annual operating expenses (before any performance adjustment to the funds base management fee and excluding brokerage, interest, taxes, investment-related expenses, extraordinary expenses and payments under the funds distribution plans) to an annual rate of 0.60% of the funds average net assets. This obligation may be modified or discontinued only with approval of the funds Board of Trustees. **** Management fees are subject to a performance adjustment. Example The following hypothetical example is intended to help you compare the cost of investing in the fund with the cost of investing in other funds. It assumes that you invest $10,000 in the fund for the time periods indicated and then, except as indicated, redeem all your shares at the end of those periods.",
"It assumes a 5% return on your investment each year and that the funds operating expenses remain the same. Only the first year of each period in the example takes into account the expense reimbursement described above. Your actual costs may be higher or lower. Share class 1 year 3 years 5 years 10 years Class A $189 $420 $670 $1,386 Class B $210 $386 $683 $1,473 Class B (no redemption) $110 $386 $683 $1,473 Class C $266 $556 $972 $2,132 Class C (no redemption) $166 $556 $972 $2,132 Class M $169 $412 $673 $1,422 Class R $115 $402 $710 $1,584 Class Y $64 $245 $441 $1,007 3 Portfolio turnover The fund pays transaction-related costs when it buys and sells securities (or turns over its portfolio).",
"A higher turnover rate may indicate higher transaction costs and may result in higher taxes when the funds shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or the above example, affect fund performance. The funds turnover rate in the most recent fiscal year was 219%. Investments, risks, and performance Investments The fund is designed to pursue a consistent absolute return through a broadly diversified portfolio reflecting uncorrelated fixed income strategies designed to exploit market inefficiencies across global markets and fixed income sectors. These strategies include investments in the following asset categories: (a) sovereign debt: obligations of governments in developed and emerging markets; (b) corporate credit: investment grade debt, high yield debt (sometimes referred to as junk bonds), bank loans, convertible bonds and structured credit; and (c) securitized assets: mortgage-backed securities, asset-backed securities, commercial mortgage-backed securities and collateralized mortgage obligations.",
"In pursuing a consistent absolute return, the funds strategies are also generally intended to produce lower volatility over a reasonable period of time than has been historically associated with traditional asset classes that have earned similar levels of return over long historical periods. These traditional asset classes might include, for example, bonds with moderate exposure to interest rate and credit risks. We may consider, among other factors, credit, interest rate and prepayment risks, as well as general market conditions, when deciding whether to buy or sell investments. We may also use derivatives, such as futures, options, certain foreign currency transactions, warrants and swap contracts, for both hedging and non-hedging purposes. Accordingly, derivatives may be used to obtain or enhance exposure to the fixed income sectors and strategies mentioned above, and to hedge against risk.",
"Putnam Absolute Return 300 Fund has a higher risk and return profile than Putnam Absolute Return 100 Fund as a result of increased exposure to the fixed income sectors and strategies mentioned above. Another distinction between the funds from time to time may be a higher cash position in Putnam Absolute Return 100 Fund. Risks It is important to understand that you can lose money by investing in the fund. Our allocation of assets among fixed income strategies and sectors may hurt performance. The prices of bonds in the funds portfolio may fall or fail to rise over extended periods of time for a variety of reasons, including both general financial market conditions and factors related to a specific issuer or industry. 4 The risks associated with bond investments include interest rate risk, which means the prices of the funds investments are likely to fall if interest rates rise. Bond investments also are subject to credit risk, which is the risk that the issuers of the funds investments may default on payment of interest or principal. Interest rate risk is generally greater for longer-term bonds, and credit risk is generally greater for below-investment-grade bonds (junk bonds).",
"Mortgage-backed investments carry the risk that they may increase in value less when interest rates decline and decline in value more when interest rates rise. We may have to invest the proceeds from prepaid investments, including mortgage- and asset-backed investments, in other investments with less attractive terms and yields. The value of international investments traded in foreign currencies may be adversely impacted by fluctuations in exchange rates. International investments may carry risks associated with potentially less stable economies or governments, such as the risk of seizure by a foreign government, the imposition of currency or other restrictions, or high levels of inflation or deflation. International investments, particularly emerging-market investments, can be illiquid. Our use of derivatives may increase these risks by, for example, increasing investment exposure or, in the case of many over-the-counter instruments, because of the potential inability to terminate or sell derivatives positions.",
"The fund may not achieve its goal, and it is not intended to be a complete investment program. The funds efforts to produce lower volatility returns may not be successful and may make it more difficult at times for the fund to achieve its targeted return. In addition, under certain market conditions, the fund may accept greater volatility than would typically be the case, in order to seek its targeted return. An investment in the fund is not insured or guaranteed by the Federal Deposit Insurance Corporation or any other governmentagency. Investor profile The fund is one of four Putnam Absolute Return Funds designed for investors seeking positive total return in excess of inflation by a targeted amount (100, 300, 500 or 700 basis points) on an annualized basis over a reasonable period of time regardless of market conditions. Because the fund seeks performance over a reasonable period of time, investors should be willing to wait out short-term market fluctuations and should generally have an investment horizon of at least three years or more.",
"The fund may be suitable for you if you are considering a bond fund with moderate exposure to interest rate and creditrisks. Performance The performance information below gives some indication of the risks associated with an investment in the fund by showing the funds performance year to year and over time. The bar chart does not reflect the impact of sales charges. If it did, performance would be lower. Please remember that past performance is not necessarily an indication of future results. Monthly performance figures for the fund are available at putnam.com. 5 Average annual total returns after sales charges (for periods ending 12/31/10) Since inception Share class 1 year (12/23/08) Class A before taxes 2.05% 5.07% Class A after taxes on distributions 0.92% 4.31% Class A after taxes on distributions and sale of fund shares 1.38% 3.90% Class B before taxes 1.81% 5.10% Class C before taxes 1.32% 4.79% Class M before taxes 2.22% 5.01% Class R before taxes 2.85% 5.28% Class Y before taxes 3.35% 5.81% BofA Merrill Lynch U.S. Treasury Bill Index (no deduction for fees, expenses or taxes) 0.21% 0.25% BofA Merrill Lynch U.S. Treasury Bill Index plus 300 basis points (no deduction for fees, expenses or taxes) 3.21% 3.25% S&P 500 Index (no deduction for fees, expenses or taxes) 15.06% 23.19% Barclays Capital Aggregate Bond Index (no deduction for fees, expenses or taxes) 6.54% 6.31% After-tax returns reflect the historical highest individual federal marginal income tax rates and do not reflect state and local taxes.",
"Actual after-tax returns depend on an investors tax situation and may differ from those shown. After-tax returns are shown for class A shares only and will vary for other classes. These after-tax returns do not apply if you hold your fund shares through a 401(k) plan, an IRA, or another tax-advantaged arrangement. The Barclays Capital Aggregate Bond Index and the S&P 500 Index are broad measures of market performance. Securities in the fund do not match those in the indexes and the performance of the fund will differ. Your funds management Investment advisor Putnam Investment Management, LLC 6 Portfolio managers Rob A. Bloemker, Head of Fixed Income, portfolio manager of the fund since2008 Carl Bell, Team Leader of Structured Credit, portfolio manager of the fund since 2008 D. William Kohli, Team Leader of Portfolio Construction and Global Strategies, portfolio manager of the fund since 2008 Kevin F. Murphy, Team Leader of High Grade Credit and Emerging Markets Debt, portfolio manager of the fund since 2008 Michael V. Salm, Team Leader of Liquid Markets, portfolio manager of the fund since 2008 Paul D. Scanlon, Team Leader of U.S. High Yield, portfolio manager of the fund since 2008 Raman Srivastava, Team Leader of Portfolio Construction, portfolio manager of the fund since 2008 Purchase and sale of fund shares You can open an account, purchase and/or sell fund shares, or exchange them for shares of another Putnam fund by contacting your financial advisor or by calling Putnam Investor Services at 1-800-225-1581.",
"When opening an account, you must complete and mail a Putnam account application, along with a check made payable to the fund, to: Putnam Investor Services, P.O. Box 8383, Boston, MA 02266-8383. The minimum initial investment of $500 is currently waived, although Putnam reserves the right to reject initial investments under $500 at its discretion. There is no minimum for subsequent investments. You can sell your shares back to the fund or exchange them for shares of another Putnam fund any day the New York Stock Exchange is open. Shares may be sold or exchanged by mail, by phone, or online at putnam.com.",
"Some restrictions may apply. Tax information The funds distributions will be taxed as ordinary income or capital gains unless the shares are held through a tax-advantaged arrangement. Financial intermediary compensation If you purchase the fund through a broker/dealer or other financial intermediary (such as a bank or financial advisor), the fund and its related companies may pay that intermediary for the sale of fund shares and related services. Please bear in mind that these payments may create a conflict of interest by influencing the broker/dealer or other intermediary to recommend the fund over another investment.",
"Ask your advisor or visit your advisors Web site for more information. Additional information, including current performance, is available at putnam.com/funddocuments, by calling 1-800-225-1581, or by e-mailing Putnam at funddocuments@putnam.com. 7"
]
| 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 |
|
WHEELER, District Judge. This ground talc is a mineral substance, but not such as can be decorated, and does not appear to fall under paragraph 97 of the act of 1897, as claimed. Dingelstedt v. U. S., 33 C. C. A. 395, 91 Fed. 112. Decision affirmed. | 11-26-2022 | [
"WHEELER, District Judge. This ground talc is a mineral substance, but not such as can be decorated, and does not appear to fall under paragraph 97 of the act of 1897, as claimed. Dingelstedt v. U. S., 33 C. C. A. 395, 91 Fed. 112. Decision affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8868230/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Hinkle, Margaret R., J. On October 19, 2010, defendant Intelligent Integration Systems, Inc. (“IISI”) filed an emergency motion to compel compliance with a subpoena duces tecum directed to a nonparty, International Business Machines Corporation (“IBM”). After a hearing and review of the various pleadings, defendant’s motion is allowed in part. BACKGROUND IBM is in the process of a $1.9 billion acquisition of plaintiff Netezza Corporation (“Netezza"). The closing is scheduled for November 10, 2010. The purpose of defendant’s subpoena is to address IISI’s claim that Netezza has misappropriated IISI trade secrets.1 IISI has alleged in this litigation that Netezza is in possession of IISI’s Geospatial and Extended SQL Toolkit software products, the former of which IISI asserts was reverse engineered and then sold as a similar product by Netezza. IISI argues that it stands to lose further control of that purported trade secret software once IBM acquires Netezza. IISI states that information Netezza gave IBM about IISI’s software is “critical to obtaining a complete picture of what has happened to the IISI trade secrets now in Netezza’s *552possession.” (IISI’s Em erg. Mot. for Contempt Order Enforcing Subpoena at 3.) After its receipt of IISI’s Emergency Motion, the Court received a letter from counsel for IBM, stating, among other things: Yesterday, IBM timely served on counsel for IISI IBM’s objections to the subpoena as well as a motion for protective order quashing the subpoena. We believe the subpoena to have been issued by the wrong court and to be unreasonably overbroad and oppressive, as well as an attempt to circumvent the normal sequence of discovery, and the procedures we understand to have been adopted in this case. We respectfully submit that IISI should take discovery on these topics first from Netezza, which is a party to the case. IBM’s objections and motion for a protective order were timely served yesterday. It would have been unreasonable in the extreme to impose on IBM, a non-party, and to ask IBM to impose on the Court, the time, burden, expense and distraction of rushing into this Court to seek emergency protection from such an abusive subpoena served on such short notice regarding such a broad range of information involving such a large transaction. Moreover, as stated in IBM’s objections and motion for a protective order, IBM believes that the subpoena should have been issued by a New York court, a common procedure easily effected in a few days. After a flurry of additional briefing, on October 21, 2010, this Court held a hearing on IISI’s motion. Both IISI and IBM have submitted post-hearing briefs. IBM provides four reasons why IISI’s subpoena should not be enforced:2 (i) it is allegedly improper to serve a subpoena duces tecum on a foreign corporation’s registered agent in Massachusetts: (ii) the subpoena is overbroad and unduly burdensome; (iii) IISI may not “end run” parly discovery through a non-party subpoena, and (iv) the subpoena is “unrelated” to the issues before the Court. This memorandum addresses only the issue of the propriety of service of defendant’s subpoena. The remaining issues will be addressed at the next hearing, currently scheduled for October 27, 2010. From the affidavits of the parties, the following facts emerge. IBM, a multinational company, is a New York corporation, with its corporate headquarters in that state. According to IBM’s web site, the largest IBM Software Development Lab in North America, housing “3,400 of IBM’s leading experts,” is located in Littleton. IBM’s Massachusetts presence also includes facilities in Cambridge, Waltham and Westford. IBM states that its planned acquisition of Netezza has been directed by IBM personnel working in its corporate executive offices in Armonk, New York. Approximately 300 individuals have been involved in the acquisition on behalf of IBM, and more than 160 participated in its due diligence of Netezza. On October 7, 2010, Edward Cronin, a constable authorized to serve process in Massachusetts, traveled to IBM’s principal place of business in Massachusetts, 550 King Street, Littleton, to serve the subpoena at issue under Rules 30(a) and 45 of the Massachusetts Rules of Civil Procedure for the production of documents and for a deposition scheduled for October 19, 2010. IBM security and reception staff refused to accept the subpoena documents Cronin attempted to serve. They told Cronin to contact IBM’s legal department and gave him two phone numbers to do so. No one answered at either number. Thereafter, security personnel told Cronin that IBM’s legal department would get back to him and that nothing further could be done. Cronin asked to speak with someone in charge to serve the subpoena properly. He was told by security and reception personnel that all process papers and subpoenas were to be submitted to CT Corporation Systems, IBM’s registered agent in Massachusetts. Cronin subsequently made service upon CT Corporation that same day, October 7, 2010.3 DISCUSSION IBM argues that, although there appears to be no reported Massachusetts decision on point, Massachusetts rules and statutes, as well as decisions by courts in other jurisdictions, make clear that it is improper to do what IISI has attempted — to serve a subpoena duces tecum upon a foreign corporation’s registered agent in Massachusetts. Subpoenas are governed by Rule 45 of the Massachusetts Rules of Civil Procedure. That Rule does not contemplate service on a non-resident’s registered agent. In contrast, Rule 4(d)(2) of the Massachusetts Rules of Civil Procedure does allow service of a summons & complaint upon a foreign corporation’s agent, but expressly does not apply to service of subpoenas . . . Massachusetts has a specific procedure for demanding documents and testimony from foreign corporations, which IISI did not follow. Massachusetts General Laws Ch. 223A, §10 sets forth that procedure, including obtaining a commission or letter rogatory from the Massachusetts court in which the action is pending, in order to then secure a subpoena from the state in which the witness and documents are located. (Mem. of Non-Party IBM in Supp. of its Motion for Prot. Order [not filed formally] at 3.) For support, IBM relies upon Syngenta Crop Protection, Inc. v. Monsanto Co., 9078 So.2d 121, 124 (Miss. 2005); Phillips Petroleum Co. v. OKC Ltd. Partnership, 634 So.2d 1186 (La. 1994), and AARP v. American Family Prepaid Legal Corp., Inc., 2007 NCBC 4, 2007 WL 2570841 (N.C.Super., Feb. 23, 2007). Each of those cases con-*553eludes as a general principle that a court’s subpoena power does not extend beyond the state in which it sits. IISI argues in opposition that IBM misstates the law as to whether it is subject to the subpoena power of a Massachusetts state court.4 According to IISI, rule 45 permits service of a deposition subpoena duces tecum upon a foreign corporation at either its in-state facility or its registered agent. IISI argues that Branham v. Rohm & Haas Co., 2010 Phila.Ct.Com.Pl. LEXIS 123 (Apr. 26, 2010), pet. for rev. denied, 994 A.2d 1080 (Pa. 2010) (“Branham’j, vitiates the significance of the three cases upon which IBM relies. In Branham, the court affirmed the denial of a motion to quash a Pennsylvania state court subpoena issued to Dow Chemical, a Delaware corporation with a substantial presence in Pennsylvania but corporate headquarters elsewhere. Dow Chemical relied upon the same cases as IBM does here, see 2010 Phila.Ct.Com.Pl. LEXIS 123, at *8, a line of cases that the Branham court distinguished, observing; ‘The lack of in-state presence rendered [each nonparly in those cases] a non-resident and outside the power of the Court,” id. Adopting the Pennsylvania court’s reasoning, IISI argues that IBM’s registration to do business in Massachusetts and significant presence in this state lead to its amenability to service of the subpoena in the manner performed here. No universal principle appears from these state cases. Decision law in this area has been described as having “haphazard, often competing approaches.” R.W. Scott, Minimum Contacts, No Dog: Evaluating Personal Jurisdiction for Nonparty Discovery, 88 Minn.L.Rev. 968, 981 (Apr. 2004); see generally R. Wasserman, The Subpoena Power: Pennoyer’s Last Vestige, 74 Minn.L.Rev. 37, 67-75 (outlining different state approaches to defining geographic reach of their courts’ subpoena power). Nevertheless, two principal reasons lead this Court to conclude that IISI made proper service of its subpoena upon IBM. First, to the extent that IBM contests the point, rule 45 clearly encompasses service of a subpoena duces tecum upon both non-residents and nonparties. A plain reading of the rule shows that it contemplates service of a subpoena upon non-residents. In relevant part, the rule states; A non-resident of the Commonwealth when served with a subpoena within the Commonwealth may be required to attend only in that county wherein he is served, or within 50 airline miles of the place of service, or at such other convenient place as is fixed by an order of court. Mass.R.Civ.P. 45(d)(2). That rule 45 permits subpoenas to be served upon nonparties is apparent from, e.g., Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 548-49 (2002) (‘The duty [to preserve evidence] placed on nonparties is one imposed by the rules governing subpoenas, and a violation of that duty has its own remedy under those same rules”), and the Reporter’s Notes to Rule 45 which discuss the various rights given nonparties under the rule, see 46 Mass. Gen. Laws Ann., Rules of Civil Procedure, at 450 (Thomson/West 2006). While, as noted, neither party has cited a Massachusetts appellate decision that has explicitly addressed the question, it surely follows that rule 45 permits service of a subpoena upon a non-resident nonparty like IBM in this case.5 Second, and without entering the conceptual thicket that has emerged to deal with the issue in other jurisdictions, there is considerable good sense in concluding that IBM is subject to in-state service of IISI’s subpoena. There can be no dispute that IBM has substantial presence in the Commonwealth: the largest IBM software development lab in North America— which houses 3,400 of IBM’s leading experts — is located in Littleton, and IBM operates additional facilities in Cambridge, Waltham and Westford. IBM has acknowledged that, consistent with constitutional due process and statutory concerns, it is amenable to suit in Massachusetts by service upon its registered agent. Thus, for IBM to challenge service of IISI’s subpoena under rule 45 in the straightforward manner utilized by its constable would appear to elevate form over substance. ORDER For the foregoing reasons, an order will enter that IISI has made proper service of the subpoena directed to International Business Machines Corporation.
Netezza and IISI allege various other claims against each other. On August 20, 2010, in an agreed-upon first phase of this litigation as part of the Business Litigation Session Pilot Project, this Court allowed IISI’s motion for partial summary judgment on the claims involving breach of the Purchase and Distribution Agreement.
IBM’s Motion for a Protective Order was served on IISI on October 18, 2010 and has not yet been filed with the Court. IBM does, however, in its opposition to IISI’s Emergency Motion ask for a protective order quashing the subpoena.
There is no indication where the documents sought by IISI are located, and neither party has addressed that issue. Since all documents in this kind of case must be electronically stored and transmitted, their “actual” or “physical” location may not be strictly relevant (or even meaningful). IBM has been silent on this point and, perhaps notably, has not offered an affidavit or other representation stating that the requested information is located outside Massachusetts.
IISI also argues that IBM ignored the subpoena until after the time for its compliance had passed and never bothered to appear for the deposition, while never seeking, let alone obtaining, a prior protective order. The Court does not address that issue in this memorandum.
Contrary to IBM’s argument, this conclusion works harmoniously with G.L.c. 223A, §10, the statute IBM argues should instead govern subpoenas to foreign corporations. That statute provides the mechanism by which “[a] deposition to obtain testimony or documents or other things in an action pending in this commonwealth may be taken outside this commonwealth ...” (emphasis added). Particularly against the backdrop of the modem business age where, as here, there are rapidly evolving circumstances with imminent dead*554lines, to adopt IBM’s approach would frustrate the requirement that the procedural rules “be construed to secure the just, speedy and inexpensive determination of every action,” Mass.R.Civ.P. 1; see Giacobbe v. First Coolidge Corp., 367 Mass. 309, 315 (1975) (discussing purpose and objective in construing procedural rules). | 10-17-2022 | [
"Hinkle, Margaret R., J. On October 19, 2010, defendant Intelligent Integration Systems, Inc. (“IISI”) filed an emergency motion to compel compliance with a subpoena duces tecum directed to a nonparty, International Business Machines Corporation (“IBM”). After a hearing and review of the various pleadings, defendant’s motion is allowed in part. BACKGROUND IBM is in the process of a $1.9 billion acquisition of plaintiff Netezza Corporation (“Netezza\"). The closing is scheduled for November 10, 2010. The purpose of defendant’s subpoena is to address IISI’s claim that Netezza has misappropriated IISI trade secrets.1 IISI has alleged in this litigation that Netezza is in possession of IISI’s Geospatial and Extended SQL Toolkit software products, the former of which IISI asserts was reverse engineered and then sold as a similar product by Netezza. IISI argues that it stands to lose further control of that purported trade secret software once IBM acquires Netezza.",
"IISI states that information Netezza gave IBM about IISI’s software is “critical to obtaining a complete picture of what has happened to the IISI trade secrets now in Netezza’s *552possession.” (IISI’s Em erg. Mot. for Contempt Order Enforcing Subpoena at 3.) After its receipt of IISI’s Emergency Motion, the Court received a letter from counsel for IBM, stating, among other things: Yesterday, IBM timely served on counsel for IISI IBM’s objections to the subpoena as well as a motion for protective order quashing the subpoena. We believe the subpoena to have been issued by the wrong court and to be unreasonably overbroad and oppressive, as well as an attempt to circumvent the normal sequence of discovery, and the procedures we understand to have been adopted in this case. We respectfully submit that IISI should take discovery on these topics first from Netezza, which is a party to the case.",
"IBM’s objections and motion for a protective order were timely served yesterday. It would have been unreasonable in the extreme to impose on IBM, a non-party, and to ask IBM to impose on the Court, the time, burden, expense and distraction of rushing into this Court to seek emergency protection from such an abusive subpoena served on such short notice regarding such a broad range of information involving such a large transaction. Moreover, as stated in IBM’s objections and motion for a protective order, IBM believes that the subpoena should have been issued by a New York court, a common procedure easily effected in a few days.",
"After a flurry of additional briefing, on October 21, 2010, this Court held a hearing on IISI’s motion. Both IISI and IBM have submitted post-hearing briefs. IBM provides four reasons why IISI’s subpoena should not be enforced:2 (i) it is allegedly improper to serve a subpoena duces tecum on a foreign corporation’s registered agent in Massachusetts: (ii) the subpoena is overbroad and unduly burdensome; (iii) IISI may not “end run” parly discovery through a non-party subpoena, and (iv) the subpoena is “unrelated” to the issues before the Court. This memorandum addresses only the issue of the propriety of service of defendant’s subpoena. The remaining issues will be addressed at the next hearing, currently scheduled for October 27, 2010. From the affidavits of the parties, the following facts emerge.",
"IBM, a multinational company, is a New York corporation, with its corporate headquarters in that state. According to IBM’s web site, the largest IBM Software Development Lab in North America, housing “3,400 of IBM’s leading experts,” is located in Littleton. IBM’s Massachusetts presence also includes facilities in Cambridge, Waltham and Westford. IBM states that its planned acquisition of Netezza has been directed by IBM personnel working in its corporate executive offices in Armonk, New York. Approximately 300 individuals have been involved in the acquisition on behalf of IBM, and more than 160 participated in its due diligence of Netezza. On October 7, 2010, Edward Cronin, a constable authorized to serve process in Massachusetts, traveled to IBM’s principal place of business in Massachusetts, 550 King Street, Littleton, to serve the subpoena at issue under Rules 30(a) and 45 of the Massachusetts Rules of Civil Procedure for the production of documents and for a deposition scheduled for October 19, 2010. IBM security and reception staff refused to accept the subpoena documents Cronin attempted to serve. They told Cronin to contact IBM’s legal department and gave him two phone numbers to do so. No one answered at either number.",
"Thereafter, security personnel told Cronin that IBM’s legal department would get back to him and that nothing further could be done. Cronin asked to speak with someone in charge to serve the subpoena properly. He was told by security and reception personnel that all process papers and subpoenas were to be submitted to CT Corporation Systems, IBM’s registered agent in Massachusetts. Cronin subsequently made service upon CT Corporation that same day, October 7, 2010.3 DISCUSSION IBM argues that, although there appears to be no reported Massachusetts decision on point, Massachusetts rules and statutes, as well as decisions by courts in other jurisdictions, make clear that it is improper to do what IISI has attempted — to serve a subpoena duces tecum upon a foreign corporation’s registered agent in Massachusetts. Subpoenas are governed by Rule 45 of the Massachusetts Rules of Civil Procedure.",
"That Rule does not contemplate service on a non-resident’s registered agent. In contrast, Rule 4(d)(2) of the Massachusetts Rules of Civil Procedure does allow service of a summons & complaint upon a foreign corporation’s agent, but expressly does not apply to service of subpoenas . . . Massachusetts has a specific procedure for demanding documents and testimony from foreign corporations, which IISI did not follow. Massachusetts General Laws Ch. 223A, §10 sets forth that procedure, including obtaining a commission or letter rogatory from the Massachusetts court in which the action is pending, in order to then secure a subpoena from the state in which the witness and documents are located. (Mem.",
"of Non-Party IBM in Supp. of its Motion for Prot. Order [not filed formally] at 3.) For support, IBM relies upon Syngenta Crop Protection, Inc. v. Monsanto Co., 9078 So.2d 121, 124 (Miss. 2005); Phillips Petroleum Co. v. OKC Ltd. Partnership, 634 So.2d 1186 (La. 1994), and AARP v. American Family Prepaid Legal Corp., Inc., 2007 NCBC 4, 2007 WL 2570841 (N.C.Super., Feb. 23, 2007). Each of those cases con-*553eludes as a general principle that a court’s subpoena power does not extend beyond the state in which it sits. IISI argues in opposition that IBM misstates the law as to whether it is subject to the subpoena power of a Massachusetts state court.4 According to IISI, rule 45 permits service of a deposition subpoena duces tecum upon a foreign corporation at either its in-state facility or its registered agent. IISI argues that Branham v. Rohm & Haas Co., 2010 Phila.Ct.Com.Pl. LEXIS 123 (Apr. 26, 2010), pet.",
"for rev. denied, 994 A.2d 1080 (Pa. 2010) (“Branham’j, vitiates the significance of the three cases upon which IBM relies. In Branham, the court affirmed the denial of a motion to quash a Pennsylvania state court subpoena issued to Dow Chemical, a Delaware corporation with a substantial presence in Pennsylvania but corporate headquarters elsewhere. Dow Chemical relied upon the same cases as IBM does here, see 2010 Phila.Ct.Com.Pl. LEXIS 123, at *8, a line of cases that the Branham court distinguished, observing; ‘The lack of in-state presence rendered [each nonparly in those cases] a non-resident and outside the power of the Court,” id. Adopting the Pennsylvania court’s reasoning, IISI argues that IBM’s registration to do business in Massachusetts and significant presence in this state lead to its amenability to service of the subpoena in the manner performed here. No universal principle appears from these state cases. Decision law in this area has been described as having “haphazard, often competing approaches.” R.W.",
"Scott, Minimum Contacts, No Dog: Evaluating Personal Jurisdiction for Nonparty Discovery, 88 Minn.L.Rev. 968, 981 (Apr. 2004); see generally R. Wasserman, The Subpoena Power: Pennoyer’s Last Vestige, 74 Minn.L.Rev. 37, 67-75 (outlining different state approaches to defining geographic reach of their courts’ subpoena power). Nevertheless, two principal reasons lead this Court to conclude that IISI made proper service of its subpoena upon IBM. First, to the extent that IBM contests the point, rule 45 clearly encompasses service of a subpoena duces tecum upon both non-residents and nonparties. A plain reading of the rule shows that it contemplates service of a subpoena upon non-residents.",
"In relevant part, the rule states; A non-resident of the Commonwealth when served with a subpoena within the Commonwealth may be required to attend only in that county wherein he is served, or within 50 airline miles of the place of service, or at such other convenient place as is fixed by an order of court. Mass.R.Civ.P. 45(d)(2). That rule 45 permits subpoenas to be served upon nonparties is apparent from, e.g., Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 548-49 (2002) (‘The duty [to preserve evidence] placed on nonparties is one imposed by the rules governing subpoenas, and a violation of that duty has its own remedy under those same rules”), and the Reporter’s Notes to Rule 45 which discuss the various rights given nonparties under the rule, see 46 Mass. Gen. Laws Ann., Rules of Civil Procedure, at 450 (Thomson/West 2006). While, as noted, neither party has cited a Massachusetts appellate decision that has explicitly addressed the question, it surely follows that rule 45 permits service of a subpoena upon a non-resident nonparty like IBM in this case.5 Second, and without entering the conceptual thicket that has emerged to deal with the issue in other jurisdictions, there is considerable good sense in concluding that IBM is subject to in-state service of IISI’s subpoena.",
"There can be no dispute that IBM has substantial presence in the Commonwealth: the largest IBM software development lab in North America— which houses 3,400 of IBM’s leading experts — is located in Littleton, and IBM operates additional facilities in Cambridge, Waltham and Westford. IBM has acknowledged that, consistent with constitutional due process and statutory concerns, it is amenable to suit in Massachusetts by service upon its registered agent. Thus, for IBM to challenge service of IISI’s subpoena under rule 45 in the straightforward manner utilized by its constable would appear to elevate form over substance. ORDER For the foregoing reasons, an order will enter that IISI has made proper service of the subpoena directed to International Business Machines Corporation.",
"Netezza and IISI allege various other claims against each other. On August 20, 2010, in an agreed-upon first phase of this litigation as part of the Business Litigation Session Pilot Project, this Court allowed IISI’s motion for partial summary judgment on the claims involving breach of the Purchase and Distribution Agreement. IBM’s Motion for a Protective Order was served on IISI on October 18, 2010 and has not yet been filed with the Court. IBM does, however, in its opposition to IISI’s Emergency Motion ask for a protective order quashing the subpoena. There is no indication where the documents sought by IISI are located, and neither party has addressed that issue. Since all documents in this kind of case must be electronically stored and transmitted, their “actual” or “physical” location may not be strictly relevant (or even meaningful).",
"IBM has been silent on this point and, perhaps notably, has not offered an affidavit or other representation stating that the requested information is located outside Massachusetts. IISI also argues that IBM ignored the subpoena until after the time for its compliance had passed and never bothered to appear for the deposition, while never seeking, let alone obtaining, a prior protective order. The Court does not address that issue in this memorandum. Contrary to IBM’s argument, this conclusion works harmoniously with G.L.c. 223A, §10, the statute IBM argues should instead govern subpoenas to foreign corporations. That statute provides the mechanism by which “[a] deposition to obtain testimony or documents or other things in an action pending in this commonwealth may be taken outside this commonwealth ...” (emphasis added). Particularly against the backdrop of the modem business age where, as here, there are rapidly evolving circumstances with imminent dead*554lines, to adopt IBM’s approach would frustrate the requirement that the procedural rules “be construed to secure the just, speedy and inexpensive determination of every action,” Mass.R.Civ.P.",
"1; see Giacobbe v. First Coolidge Corp., 367 Mass. 309, 315 (1975) (discussing purpose and objective in construing procedural rules)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8326393/ | 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 .
Priority Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. JP 2020-007076, filed on 01/20/2020.
Information Disclosure Statement The information disclosure statement (IDS) submitted on 08/17/2021, 12/22/2020. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Allowable Subject Matter The following is an examiner’s statement of reasons for allowance: The prior art of record does not teach or fairly suggest in combination of steps as recited in the Applicant’s independent claims as amended, in response to an original document, calculating an original document's first hash value by using the original document; in response to the calculating of the first hash value, calculating an original document's second hash value by using the first hash value; in response to obtaining of a first modified version document modified from the original document, calculating a first modified version's first hash value by using the first modified version document; in response to the calculating of the first modified version's first hash value, calculating a first modified version's second hash value that is a hash value obtained by combining the first modified version's first hash value and the original document's second hash value; in response to obtaining of a second modified version document by modifying the first modified version document, calculating a second modified version's first hash value that is a hash value for the second modified version document; in response to the calculating of the second modified version's, calculating a second modified version's second hash value that is a hash value obtained by combining the second modified version's first hash value and the first modified version's second hash value; and transmitting information to a second computer system to cause the second computer to verify the validity of the second modified version's second hash value by using the information, the information including the original document's first hash value, the first modified version's first hash value, and the second modified version's first hash value. The dependent claims, being definite, further limiting, and fully enabled by the specification are also allowed.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to MOHAMMED WALIULLAH whose telephone number is (571)270-7987. The examiner can normally be reached 8.30 to 430 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, Yin-Chen Shaw can be reached on 1-571-272-8878. 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.
/MOHAMMED WALIULLAH/Primary Examiner, Art Unit 2498 | 2022-05-25T15:42:12 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Priority Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. JP 2020-007076, filed on 01/20/2020. Information Disclosure Statement The information disclosure statement (IDS) submitted on 08/17/2021, 12/22/2020. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner. Allowable Subject Matter The following is an examiner’s statement of reasons for allowance: The prior art of record does not teach or fairly suggest in combination of steps as recited in the Applicant’s independent claims as amended, in response to an original document, calculating an original document's first hash value by using the original document; in response to the calculating of the first hash value, calculating an original document's second hash value by using the first hash value; in response to obtaining of a first modified version document modified from the original document, calculating a first modified version's first hash value by using the first modified version document; in response to the calculating of the first modified version's first hash value, calculating a first modified version's second hash value that is a hash value obtained by combining the first modified version's first hash value and the original document's second hash value; in response to obtaining of a second modified version document by modifying the first modified version document, calculating a second modified version's first hash value that is a hash value for the second modified version document; in response to the calculating of the second modified version's, calculating a second modified version's second hash value that is a hash value obtained by combining the second modified version's first hash value and the first modified version's second hash value; and transmitting information to a second computer system to cause the second computer to verify the validity of the second modified version's second hash value by using the information, the information including the original document's first hash value, the first modified version's first hash value, and the second modified version's first hash value.",
"The dependent claims, being definite, further limiting, and fully enabled by the specification are also allowed. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to MOHAMMED WALIULLAH whose telephone number is (571)270-7987. The examiner can normally be reached 8.30 to 430 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, Yin-Chen Shaw can be reached on 1-571-272-8878. 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. /MOHAMMED WALIULLAH/Primary Examiner, Art Unit 2498"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-05-29.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Per Curiam. Defendant was tried and convicted by a jury on a charge of second-degree murder, in violation of MOLA § 750.321 (Stat Ann 1954 Rev § 28.549), and sentenced to 25 to 50 years’ imprisonment. First, the defendant complains that the in-eourt identification was improperly admitted into evidence because of the allegation that the lineup was conducted without benefit of counsel. However different witnesses testified that the defendant had been seen in the Dequindre Party Store, where deceased Benjamin Newton worked, at around 1:30 a.m. on November 12, 1969. Between that time and 1:49 a.m., the deceased was shot several times with a handgun and died as a result of multiple gunshot wounds. The defendant was arrested on February 13,1970. A gun found in his possession matched the description of the murder weapon. On appeal defendant raises for the first time the issue that the trial court erred in permitting an in-court identification of the defendant based upon an illegal lineup. Defendant contends that he was not represented by counsel at the lineup and therefore the admission of identification testimony based upon the lineup was erroneous. Other testimony than that here complained of positively identifies the defendant as present at the scene of the crime. Assuming *663arguendo that defendant was not represented by counsel, we conclude that the court’s error in admitting the identification testimony was harmless beyond a reasonable doubt. Defendant’s contention is without merit. See People v. Hutton (1970), 21 Mich App 312. Defendant also contends that the court erred in permitting the prosecutor to reopen his case and introduce the testimony of three additional witnesses. The court, in permitting the testimony of additional witnesses provided that defendant’s attorney would have the first opportunity to examine the witnesses. No testimony of significance was elicited from these witnesses. While it is true that they may have been res gestae witnesses, the defendant was aware of their existence and at no time objected to the prosecution’s failure to indorse them on the information. In view of these circumstances we conclude that the admission of the testimony of the additional witnesses did not prejudice the defendant. No reversible error was committed. People v. Nelson (1971), 29 Mich App 251; People v. McLaughlin (1966), 3 Mich App 391. Affirmed. | 09-09-2022 | [
"Per Curiam. Defendant was tried and convicted by a jury on a charge of second-degree murder, in violation of MOLA § 750.321 (Stat Ann 1954 Rev § 28.549), and sentenced to 25 to 50 years’ imprisonment. First, the defendant complains that the in-eourt identification was improperly admitted into evidence because of the allegation that the lineup was conducted without benefit of counsel. However different witnesses testified that the defendant had been seen in the Dequindre Party Store, where deceased Benjamin Newton worked, at around 1:30 a.m. on November 12, 1969. Between that time and 1:49 a.m., the deceased was shot several times with a handgun and died as a result of multiple gunshot wounds.",
"The defendant was arrested on February 13,1970. A gun found in his possession matched the description of the murder weapon. On appeal defendant raises for the first time the issue that the trial court erred in permitting an in-court identification of the defendant based upon an illegal lineup. Defendant contends that he was not represented by counsel at the lineup and therefore the admission of identification testimony based upon the lineup was erroneous.",
"Other testimony than that here complained of positively identifies the defendant as present at the scene of the crime. Assuming *663arguendo that defendant was not represented by counsel, we conclude that the court’s error in admitting the identification testimony was harmless beyond a reasonable doubt. Defendant’s contention is without merit. See People v. Hutton (1970), 21 Mich App 312. Defendant also contends that the court erred in permitting the prosecutor to reopen his case and introduce the testimony of three additional witnesses. The court, in permitting the testimony of additional witnesses provided that defendant’s attorney would have the first opportunity to examine the witnesses.",
"No testimony of significance was elicited from these witnesses. While it is true that they may have been res gestae witnesses, the defendant was aware of their existence and at no time objected to the prosecution’s failure to indorse them on the information. In view of these circumstances we conclude that the admission of the testimony of the additional witnesses did not prejudice the defendant. No reversible error was committed. People v. Nelson (1971), 29 Mich App 251; People v. McLaughlin (1966), 3 Mich App 391. Affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7957418/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Order affirmed, without costs; no opinion. Concur: Chief Judge Desmond and Judges Fuld, Van Voorhis, Burke, Soileppi, Bergan and Keating. | 01-10-2022 | [
"Order affirmed, without costs; no opinion. Concur: Chief Judge Desmond and Judges Fuld, Van Voorhis, Burke, Soileppi, Bergan and Keating."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5522625/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
United States Court of Appeals For the Eighth Circuit ___________________________
No. 18-2661 ___________________________
Mike K. Strong
lllllllllllllllllllllPlaintiff - Appellant
v.
Caliber Home Loans, Inc. - US Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust
lllllllllllllllllllllDefendant
Caliber Home Loans, Inc.; U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust; Kozeny & McCubbin, L.C., Kerry Feld, Successor Trustee successor Kerry Feld; HSBC Mortgage Services, Inc.; Kozeny & McCubbin, L.C.
lllllllllllllllllllllDefendants - Appellees ____________
Appeal from United States District Court for the District of Nebraska - Omaha ____________
Submitted: June 12, 2019 Filed: June 19, 2019 [Unpublished] ____________
Before LOKEN, GRUENDER, and KOBES, Circuit Judges. ____________ PER CURIAM.
Mike Strong appeals the district court’s1 dismissal of his action against his mortgage lender and related parties. On de novo review, see Montin v. Moore, 846 F.3d 289, 292 (8th Cir. 2017) (de novo review of Fed. R. Civ. P. 12(b)(6) dismissal); Olson v. Fairview Health Servs. of Minn., 831 F.3d 1063, 1070 (8th Cir. 2016) (de novo review of dismissal based on Fed. R. Civ. P. 9(b)), we affirm.
We agree with the district court that Strong’s complaint did not plead his fraud or deceptive trade practices claims with the specificity required by Federal Rule of Civil Procedure 9(b). See Fed. R. Civ. P. 9(b) (party must plead circumstances constituting fraud with particularity); Munro v. Lucy Activewear, Inc., 899 F.3d 585, 590 (8th Cir. 2018) (party alleging fraud must plead time, place, and contents of false representation, identity of person making misrepresentation, and what was obtained or given up thereby); E-Shops Corp. v. U.S. Bank Nat’l Ass’n, 678 F.3d 659, 665 (8th Cir. 2012) (Fed. R. Civ. P. 9(b)’s heightened pleading requirement applied to claims arising under state deceptive trade practice statutes). We also conclude that Strong failed to state a claim for any other violation of state or federal law, see Montin, and we find no other error in the district court’s dismissal.
We affirm the judgment of the district court. See 8th Cir. R. 47B. ______________________________
1 The Honorable John M. Gerrard, Chief Judge, United States District Court for the District of Nebraska.
-2- | 06-19-2019 | [
"United States Court of Appeals For the Eighth Circuit ___________________________ No. 18-2661 ___________________________ Mike K. Strong lllllllllllllllllllllPlaintiff - Appellant v. Caliber Home Loans, Inc. - US Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust lllllllllllllllllllllDefendant Caliber Home Loans, Inc.; U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust; Kozeny & McCubbin, L.C., Kerry Feld, Successor Trustee successor Kerry Feld; HSBC Mortgage Services, Inc.; Kozeny & McCubbin, L.C. lllllllllllllllllllllDefendants - Appellees ____________ Appeal from United States District Court for the District of Nebraska - Omaha ____________ Submitted: June 12, 2019 Filed: June 19, 2019 [Unpublished] ____________ Before LOKEN, GRUENDER, and KOBES, Circuit Judges.",
"____________ PER CURIAM. Mike Strong appeals the district court’s1 dismissal of his action against his mortgage lender and related parties. On de novo review, see Montin v. Moore, 846 F.3d 289, 292 (8th Cir. 2017) (de novo review of Fed. R. Civ. P. 12(b)(6) dismissal); Olson v. Fairview Health Servs. of Minn., 831 F.3d 1063, 1070 (8th Cir. 2016) (de novo review of dismissal based on Fed. R. Civ. P. 9(b)), we affirm. We agree with the district court that Strong’s complaint did not plead his fraud or deceptive trade practices claims with the specificity required by Federal Rule of Civil Procedure 9(b). See Fed. R. Civ. P. 9(b) (party must plead circumstances constituting fraud with particularity); Munro v. Lucy Activewear, Inc., 899 F.3d 585, 590 (8th Cir.",
"2018) (party alleging fraud must plead time, place, and contents of false representation, identity of person making misrepresentation, and what was obtained or given up thereby); E-Shops Corp. v. U.S. Bank Nat’l Ass’n, 678 F.3d 659, 665 (8th Cir. 2012) (Fed. R. Civ. P. 9(b)’s heightened pleading requirement applied to claims arising under state deceptive trade practice statutes). We also conclude that Strong failed to state a claim for any other violation of state or federal law, see Montin, and we find no other error in the district court’s dismissal. We affirm the judgment of the district court. See 8th Cir. R. 47B. ______________________________ 1 The Honorable John M. Gerrard, Chief Judge, United States District Court for the District of Nebraska. -2-"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4408311/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
J
2eptember 2, 2015
ASEL ACOSTA, CLERK TEXAS COURT OF CRIMINAL APPEALS OFFICE OF THE CLERK P.O. Box12308, Capitol Station Austin, Texas 78711
In· re: Ex parte Jo'seph Johnson, Jr. Trial Court No. 1234108
To the Hon. Abel Acosta,
Enclosed please find for fil±ng and action my "Writ of Manda- mus'' filed wh~re the county Clerk has apparently not forwarded my Writ as Law requires from the letter I received from your office Sept. 1, 2015. As I received my copy of the States Answer back in July. I just assumed a copy was being sent to the Court of Criminal Appeals, though ili~th the issue of corruption and alter documenta:~
tion by the Harris County judicial officials I can understand the reason for not forwarding the Writ. I ask that you please notify myself up receipt and filing of this action.
Jo~6aNs 7~R. 1758171 C. T. Terrell 1300 FM655 Roshaion, Texas 77583 j
TEXAS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
EX PARTE § JOSEPH JOHNSON, JR., § WRIT NO. Petitioner §
WRIT OF MANDAMUS
BEFORE THE COURT:
C0 ME S N0 W JO S E P H J 0 HNS 0 N , J R . , Pe t i t i o n e r · p r o s e , a n d f i l e s
this his "Writ of Mandamus" in the· above styled cause where the
County of conviction has refused, pursuant to Notice from the
Clerk of the Court, to forward Petitioner's Art. 11.07 Writ of
Habeas Corpus to the Court. Pursuant to a letter from Brenda
McNeal, Deputy Clerk of Harris County, Texas, Petitioner's Writ
was received June 8, 2015, although Petiticrner had filed/mailed
it in mid May, 2015. Trial Court NO. 12341 08-B
On July 13, 2015, Petitioner received trhe "Stat~'s Answer
and Order'' to which h~ immediately filed a rebuttal. On July 14,
2015, Petitioner received a signed copy of same showing that Judge
Kroeker had signed off on the "State's Proposed Finding's of Facts
Co nc l u s i o n s o f L a w , a n d 0 r d e r " J u l y 6 , 2 0 1 5 . If this was the case
then Petitioner's Writ of Habeas Corpus should have arrived in
the Office of the Cle~k of the Court of Criminal Appeals at or
about the same time as Petitioner received his copy .. \
On August 16, 2015, having received No· Notice by "White Card"
that the Writ had been received and filed for review on the new
issues of Constitutional violation, Petitioner forwarded a letter
1 to Abel Acosta, Clerk, on the matter. On August 25, 2015, Mr.
Acosta returned a reply letter to Petitioner which he received
on September 1, 2015, stating his office has NO record of having
ever receiv~d said Writ. As of the preparation of this document it
has now been 87 days, 52 days longer than allowed ~y Law, since
the county received Petitioner's Writ.
WHEREFORE; Petitioner would so pray this Honorable Court to
GRANT him his Writ and enter an Order for the Clerk of the Court
to Notify the Clerk of the Harris County District Clerk's Office
to forward Petitioner's Art. 11.07 Writ of Habeas Corpus and all
Court documents to the Court of Criminal Appeals for review of
the issues"post haste.
Further Petitioner prayeth not.
Respectfully submitted,
UNSWORN DECLARATION
I, Joseph Johnson, Jr., TDCJ No. 1758171, being pr~sently
restrain~d of my liberty ~n violation of 18 USC §241, at the C.T. Terrell unit located at 1300 FM 655, Rosharon, Texas 77583 in Brazoria County, declares under penalty of perjury thta the fore- going document is true and correct toithe best of my knowledge.
Signed this the _,_.-~~~·--~---- day of September, 2015.
2 | 09-29-2016 | [
"J 2eptember 2, 2015 ASEL ACOSTA, CLERK TEXAS COURT OF CRIMINAL APPEALS OFFICE OF THE CLERK P.O. Box12308, Capitol Station Austin, Texas 78711 In· re: Ex parte Jo'seph Johnson, Jr. Trial Court No. 1234108 To the Hon. Abel Acosta, Enclosed please find for fil±ng and action my \"Writ of Manda- mus'' filed wh~re the county Clerk has apparently not forwarded my Writ as Law requires from the letter I received from your office Sept. 1, 2015. As I received my copy of the States Answer back in July. I just assumed a copy was being sent to the Court of Criminal Appeals, though ili~th the issue of corruption and alter documenta:~ tion by the Harris County judicial officials I can understand the reason for not forwarding the Writ. I ask that you please notify myself up receipt and filing of this action.",
"Jo~6aNs 7~R. 1758171 C. T. Terrell 1300 FM655 Roshaion, Texas 77583 j TEXAS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS EX PARTE § JOSEPH JOHNSON, JR., § WRIT NO. Petitioner § WRIT OF MANDAMUS BEFORE THE COURT: C0 ME S N0 W JO S E P H J 0 HNS 0 N , J R . , Pe t i t i o n e r · p r o s e , a n d f i l e s this his \"Writ of Mandamus\" in the· above styled cause where the County of conviction has refused, pursuant to Notice from the Clerk of the Court, to forward Petitioner's Art.",
"11.07 Writ of Habeas Corpus to the Court. Pursuant to a letter from Brenda McNeal, Deputy Clerk of Harris County, Texas, Petitioner's Writ was received June 8, 2015, although Petiticrner had filed/mailed it in mid May, 2015. Trial Court NO. 12341 08-B On July 13, 2015, Petitioner received trhe \"Stat~'s Answer and Order'' to which h~ immediately filed a rebuttal. On July 14, 2015, Petitioner received a signed copy of same showing that Judge Kroeker had signed off on the \"State's Proposed Finding's of Facts Co nc l u s i o n s o f L a w , a n d 0 r d e r \" J u l y 6 , 2 0 1 5 .",
"If this was the case then Petitioner's Writ of Habeas Corpus should have arrived in the Office of the Cle~k of the Court of Criminal Appeals at or about the same time as Petitioner received his copy .. \\ On August 16, 2015, having received No· Notice by \"White Card\" that the Writ had been received and filed for review on the new issues of Constitutional violation, Petitioner forwarded a letter 1 to Abel Acosta, Clerk, on the matter. On August 25, 2015, Mr. Acosta returned a reply letter to Petitioner which he received on September 1, 2015, stating his office has NO record of having ever receiv~d said Writ. As of the preparation of this document it has now been 87 days, 52 days longer than allowed ~y Law, since the county received Petitioner's Writ.",
"WHEREFORE; Petitioner would so pray this Honorable Court to GRANT him his Writ and enter an Order for the Clerk of the Court to Notify the Clerk of the Harris County District Clerk's Office to forward Petitioner's Art. 11.07 Writ of Habeas Corpus and all Court documents to the Court of Criminal Appeals for review of the issues\"post haste. Further Petitioner prayeth not. Respectfully submitted, UNSWORN DECLARATION I, Joseph Johnson, Jr., TDCJ No. 1758171, being pr~sently restrain~d of my liberty ~n violation of 18 USC §241, at the C.T. Terrell unit located at 1300 FM 655, Rosharon, Texas 77583 in Brazoria County, declares under penalty of perjury thta the fore- going document is true and correct toithe best of my knowledge.",
"Signed this the _,_.-~~~·--~---- day of September, 2015. 2"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4052055/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Appeal from Circuit Court, Orange County; Frank A. Smith, Judge. Appeal dismissed. | 07-29-2022 | [
"Appeal from Circuit Court, Orange County; Frank A. Smith, Judge. Appeal dismissed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7420342/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 2:20-cv-00148-SPC-NPM Document 32 Filed 11/02/20 Page 1 of 3 PageID 109
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION
UNITED STATES FOR THE USE AND BENEFIT OF PHOENIX METALS COMPANY, a foreign corporation
Plaintiff,
v. Case No.: 2:20-cv-148-FtM-38NPM
WORTHFAB, LLC,
Defendant. /
OPINION AND ORDER1
Before the Court is United States Magistrate Judge Nicholas P. Mizell’s
Report and Recommendation. (Doc. 31). Judge Mizell recommends granting
Plaintiff’s Renewed Motion for Default Judgment Against Defendant
Worthfab, LLC. Neither party objects to the Report and Recommendation, and
the time to do so has expired.
A district judge “may accept, reject, or modify in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1). The district judge “shall make a de novo determination of those
1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide, nor does it have any agreements with them. The Court is also not responsible for a hyperlink’s availability and functionality, and a failed hyperlink does not affect this Order. Case 2:20-cv-00148-SPC-NPM Document 32 Filed 11/02/20 Page 2 of 3 PageID 110
portions of the report or specified proposed findings or recommendations to
which objection is made.” Id. And “[t]he judge may also receive further
evidence or recommit the matter to the magistrate judge with instructions.”
Id.
After examining the file independently and upon considering Judge
Mizell’s findings and recommendations, the Court accepts and adopts the
Report and Recommendation.
Accordingly, it is now
ORDERED:
(1) The Report and Recommendation (Doc. 31) is ACCEPTED and
ADOPTED and the findings incorporated herein.
(2) Plaintiff’s Renewed Motion for Default Judgment Against Defendant
Worthfab LLC (Doc. 30) is GRANTED.
(3) The Clerk is DIRECTED to enter a default judgment on Count II
(breach of contract) against ] Worthfab, LLC for $6,973.81, plus post-
judgment interest accruing at the legal rate established by 28
U.S.C. § 1961, and costs to be taxed in the amount of $625.00.
(4) The Clerk is further DIRECTED to terminate any deadlines and
close the file.
2 Case 2:20-cv-00148-SPC-NPM Document 32 Filed 11/02/20 Page 3 of 3 PageID 111
DONE and ORDERED in Fort Myers, Florida on November 2, 2020.
Copies: All Parties of Record
3 | 2020-11-02 | [
"Case 2:20-cv-00148-SPC-NPM Document 32 Filed 11/02/20 Page 1 of 3 PageID 109 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION UNITED STATES FOR THE USE AND BENEFIT OF PHOENIX METALS COMPANY, a foreign corporation Plaintiff, v. Case No. : 2:20-cv-148-FtM-38NPM WORTHFAB, LLC, Defendant. / OPINION AND ORDER1 Before the Court is United States Magistrate Judge Nicholas P. Mizell’s Report and Recommendation. (Doc. 31). Judge Mizell recommends granting Plaintiff’s Renewed Motion for Default Judgment Against Defendant Worthfab, LLC. Neither party objects to the Report and Recommendation, and the time to do so has expired. A district judge “may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The district judge “shall make a de novo determination of those 1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees.",
"By using hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide, nor does it have any agreements with them. The Court is also not responsible for a hyperlink’s availability and functionality, and a failed hyperlink does not affect this Order. Case 2:20-cv-00148-SPC-NPM Document 32 Filed 11/02/20 Page 2 of 3 PageID 110 portions of the report or specified proposed findings or recommendations to which objection is made.” Id. And “[t]he judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.” Id. After examining the file independently and upon considering Judge Mizell’s findings and recommendations, the Court accepts and adopts the Report and Recommendation. Accordingly, it is now ORDERED: (1) The Report and Recommendation (Doc. 31) is ACCEPTED and ADOPTED and the findings incorporated herein. (2) Plaintiff’s Renewed Motion for Default Judgment Against Defendant Worthfab LLC (Doc. 30) is GRANTED.",
"(3) The Clerk is DIRECTED to enter a default judgment on Count II (breach of contract) against ] Worthfab, LLC for $6,973.81, plus post- judgment interest accruing at the legal rate established by 28 U.S.C. § 1961, and costs to be taxed in the amount of $625.00. (4) The Clerk is further DIRECTED to terminate any deadlines and close the file. 2 Case 2:20-cv-00148-SPC-NPM Document 32 Filed 11/02/20 Page 3 of 3 PageID 111 DONE and ORDERED in Fort Myers, Florida on November 2, 2020. Copies: All Parties of Record 3"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/150661954/ | 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
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 1/07/2022 has been entered.
Response to Arguments Applicant’s arguments, see pages 7-16, filed 12/07/2021, with respect to rejection of 35 U.S.C § 103 of claims 1-2, 4-10, and 12-15 have been fully considered and are persuasive. The rejection of 35 U.S.C § 103 has been withdrawn. Claims 2-3 and 10-11 are cancelled. Allowable Subject Matter Claims 1, 4-9, and 12-15 are allowed. The following is an examiner’s statement of reasons for allowance: Claims 1, 4-9, and 12-15 are allowable over prior art of record (in particular, MANOLAKOS et al. (US 2020/0052847), KANG et al. (US 2019/0058517), CHA et al. (US 2019/0273544), and WANG et al. (US 2020/0119797)) since the prior art reference(s) taken individually or in combination fails to particularly disclose, fairly suggests, or render obvious as stated in the italic below: Regarding claims 1, 7, 9, and 15, “…wherein the CSI-RS resource repetition information is determined based on a number of tracking reference signal (TRS) bursts and a number of CSI-RS resources per resource set, based on the resource repetition information, at least one CSI-RS is identified, at the UE, among a plurality of CSI-RS on CSI-RE resource setting not linked to the at least one CSI-RS report setting; and the time/frequency tracking operation is performed at the UE based on the identified CSI- RS” in combination with other limitations recited in claims 1, 7, 9, and 15. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHONG LA whose telephone number is (571)272-2588. The examiner can normally be reached on Monday through Friday from 7:30 A.M. to 4:00 P.M. (EST). If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, IAN MOORE can be reached on 571-272-3085. 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. /PHONG LA/ Primary Examiner, Art Unit 2469 | 2022-04-25T20:00:37 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . DETAILED ACTION 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 1/07/2022 has been entered. Response to Arguments Applicant’s arguments, see pages 7-16, filed 12/07/2021, with respect to rejection of 35 U.S.C § 103 of claims 1-2, 4-10, and 12-15 have been fully considered and are persuasive.",
"The rejection of 35 U.S.C § 103 has been withdrawn. Claims 2-3 and 10-11 are cancelled. Allowable Subject Matter Claims 1, 4-9, and 12-15 are allowed. The following is an examiner’s statement of reasons for allowance: Claims 1, 4-9, and 12-15 are allowable over prior art of record (in particular, MANOLAKOS et al. (US 2020/0052847), KANG et al. (US 2019/0058517), CHA et al. (US 2019/0273544), and WANG et al. (US 2020/0119797)) since the prior art reference(s) taken individually or in combination fails to particularly disclose, fairly suggests, or render obvious as stated in the italic below: Regarding claims 1, 7, 9, and 15, “…wherein the CSI-RS resource repetition information is determined based on a number of tracking reference signal (TRS) bursts and a number of CSI-RS resources per resource set, based on the resource repetition information, at least one CSI-RS is identified, at the UE, among a plurality of CSI-RS on CSI-RE resource setting not linked to the at least one CSI-RS report setting; and the time/frequency tracking operation is performed at the UE based on the identified CSI- RS” in combination with other limitations recited in claims 1, 7, 9, and 15.",
"Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHONG LA whose telephone number is (571)272-2588. The examiner can normally be reached on Monday through Friday from 7:30 A.M. to 4:00 P.M. (EST). If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, IAN MOORE can be reached on 571-272-3085. 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. /PHONG LA/ Primary Examiner, Art Unit 2469"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-04-17.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
727 So. 2d 1005 (1999) PALM BEACH ROAMER, INC., Appellant, v. William P. McCLURE, Albert Schneider, et al., Appellee. No. 97-1102. District Court of Appeal of Florida, Fifth District. February 12, 1999. Rehearing Denied March 22, 1999. Michael J. Ferrin, West Palm Beach, for Appellant. Thomas E. Ice, of Barwick, Dillian, Lambert & Ice, P.A., Miami, for Appellee. THOMPSON, J. Palm Beach Roamer, Inc. ("PBR"), timely appeals from a final judgment in part finding Albert Schneider and Schneider Mills, Inc. (collectively, "Schneider") not liable for fraud and conspiracy to commit fraud. Specifically, PBR challenges the directed verdict for Schneider on the fraud claim.[1] We affirm. In a three-count complaint against William P. McClure, McClure Aircraft, Inc. (collectively, "McClure"), and Schneider, PBR alleged that, in 1993, Schneider had an aircraft for sale and retained McClure to find a buyer. McClure, in turn, retained Discovery Aviation, Inc., whose agent, Gary Kimball, advertised the plane for sale. David A. Johnson, an employee of PBR, saw the advertisement and contacted Kimball. Kimball represented that the plane was owned by Discovery Aviation and was in excellent condition. Johnson and F. Lee Bailey, president of PBR, inspected the plane and its log books, and took the plane for a test flight. Thereafter, PBR bought the aircraft for $129,000. PBR alleged that, shortly after the sale, it learned that Schneider held title to the plane at the time of the transaction. Also, after the purchase, PBR took the plane to Downtown Airpark in Oklahoma for maintenance and inspections. There, PBR learned that Downtown Airpark had inspected the same plane in February 1992 and found "excessive wing spar corrosion."[2] The inspection is *1006 known in the industry as a "208 inspection." The inspection results and a notation about the necessity for repair or replacement of the lower spar cap "prior to further flight" had been recorded in the plane's log book. PBR alleged McClure and Schneider knew the plane had failed the inspection but decided to have the plane inspected by another organization which was not told about the previous inspection results. PBR further alleged McClure removed the results of the previous inspection from the log book with Schneider's knowledge and consent, and Bailey and Johnson were not told of the failed inspection when they went to see and test fly the plane. Count I of the complaint charged McClure and Schneider with fraudulently concealing the dangerous condition of the plane and misrepresenting its true condition. Count II charged the defendants with conspiring to commit fraudulent concealment, and Count III sought punitive damages. At trial, McClure, who is in the business of selling aircraft, testified that he originally sold the subject aircraft to Schneider in 1986. In 1992, McClure found a tentative purchaser for the plane. A pre-purchase inspection was done by Downtown Airpark in Oklahoma in February 1992. McClure learned that the plane had failed the 208 inspection and that repairs would cost anywhere from $55,000 to $100,000. Downtown Airpark placed in the plane's log book a computer-generated sticker which showed the inspection results and the requirement for repair or replacement of the wing spar cap. There was conflicting evidence regarding whether the sticker was actually affixed to a page in the log book or merely placed loosely in the book. McClure advised Schneider of the failed inspection and repair estimates. After the sale fell through, McClure told Schneider he disagreed with the results of the inspection done by Downtown Airpark. McClure testified that if a pre-purchase inspection reveals a defect and the prospective buyer rejects the plane, the owner has the option to have a second inspection done by another company. He suggested this to Schneider and told him that this is acceptable practice within the industry. Schneider, who is not in the business of buying and selling aircraft and who has no expertise regarding wing spar inspections, agreed to a second opinion. The wing spar had not been repaired or replaced when, in April 1992, McClure arranged to have a second 208 inspection performed by Aero Inspection Services. The Aero inspector neither saw the log book containing the results of the prior inspection nor was advised that the plane had previously failed the inspection. McClure did not reveal the prior results because he wanted "an unbiased inspection." When the plane passed the second inspection, McClure removed the Downtown Airpark sticker from the log book and discarded it, finding it "inaccurate" and superseded by the Aero inspection results. He then had the Aero inspector make a log book entry indicating a "satisfactory inspection." McClure testified that FAA rules permit an inspection report to be discarded when superseded by a subsequent inspection. He faxed Schneider copies of both inspection results and a note advising Schneider of the substitution made in the log book. Schneider decided to keep the plane after learning it had passed the second inspection. However, in January 1993, he traded in the plane to purchase a larger one from McClure. McClure took possession of the plane, although no paperwork was generated to effect a change of title. Gary Kimball of Discovery Aviation, Inc. bought the plane from McClure for $111,000 on or about 31 January 1993. McClure stated that he felt he owned the plane and thought it unnecessary to obtain Schneider's permission to sell it to Kimball. Again, no bill of sale was generated. McClure did not disclose the failed 208 inspection to Kimball and he was not involved in the subsequent transaction between Kimball and PBR. He testified, however, that he knew of Kimball's plans to sell the plane and that Kimball ultimately received less than his asking price to compensate for certain other defects. PBR put a $5,000 deposit on the plane on 23 February 1993, and the sale was completed on 3 March 1993. A bill of sale dated 23 February 1993 was generated for the *1007 Schneider-McClure sale, and Schneider took delivery of the new plane "around the end of February." A bill of sale dated 24 February 1993 evidenced the sale of the plane by McClure to Kimball, and McClure testified that Kimball paid him then. At the close of the evidence, Schneider and McClure moved for directed verdicts. The court granted Schneider a directed verdict on the fraud claim, finding that Schneider made "no statement ... as to any representation concerning ... the concealment of the failed 208 inspection." The court further found PBR's basis for finding Schneider liable "smacks more of conspiracy than the agency relationship theory." The court thus denied Schneider's motion for directed verdict on the conspiracy count. Thereafter, the jury found that McClure had committed fraud and awarded PBR $70,000 in compensatory damages, but denied punitive damages.[3] The jury further determined that Schneider and McClure did not conspire to commit fraud. PBR argues it produced sufficient evidence to show Schneider's active involvement in concealing the results of the failed 208 inspection, Schneider's ownership and control of the plane when PBR agreed to purchase it, and a principal/agent relationship between Schneider and McClure which would justify holding Schneider liable for fraud. Therefore, PBR argues, the trial court erred in directing a verdict for Schneider. A directed verdict is proper where the evidence and reasonable inferences therefrom, considered in a light most favorable to the nonmoving party, fail to establish a prima facie case of the claim asserted. Reams v. Vaughn, 435 So. 2d 879 (Fla. 5th DCA 1983). To prove a prima facie case of fraud against Schneider, PBR had to produce evidence sufficient to show that: (1) Schneider knowingly made a false statement of material fact or concealed a material fact; (2) Schneider intended to induce PBR to act on the statement; (3) PBR relied on the statement; and (4) PBR suffered damages as a result of such reliance. Essex Ins. Co., Inc. v. Universal Entertainment & Skating Center, Inc., 665 So. 2d 360 (Fla. 5th DCA 1995). To hold Schneider liable for the fraud committed by McClure, PBR had to prove that McClure knowingly made a false statement of material fact or concealed a material fact, and that McClure was Schneider's agent acting within the scope of his authority. Barth v. Khubani, 705 So. 2d 72 (Fla. 3d DCA 1997). The trial court correctly found no evidence that Schneider himself made any affirmative statement concerning the condition of the plane. It was Kimball who allegedly told PBR's representatives the plane was in excellent condition. Furthermore, the evidence did not show that Schneider himself concealed the failed 208 inspection. Rather, McClure concealed those results from Kimball while the log book showed that the plane passed the inspection by Aero Inspection Services. In addition, the evidence did not show McClure was acting as Schneider's agent when the misrepresentation occurred. Although Schneider held legal title to the plane until PBR purchased it, he had surrendered possession of the plane and its log books to McClure in January 1993, essentially passing equitable title to McClure. Indeed, McClure testified that he felt he owned the plane once he took possession of it and considered it unnecessary to notify Schneider that Kimball had purchased it. PBR presented no evidence that Schneider knew of any transactions concerning the plane after he traded it. The bill of sale dated 23 February 1993 and McClure's testimony that he delivered Schneider's new plane "around the end of February" permit speculation, but not a reasonable inference, that McClure was to sell the trade-in on Schneider's behalf before delivering the new plane. Whereas it was clear that McClure acted as Schneider's agent in the 1992 tentative sale, the jury could not reach the same conclusion regarding the PBR transaction. It was during the later transaction that the fraud occurred and not in 1992. Thus, PBR failed to prove a prima facie case of fraud against Schneider directly *1008 or under agency principles. Accordingly, the trial court correctly directed a verdict in Schneider's favor. AFFIRMED. GRIFFIN, C.J. and HARRIS, J., concur. NOTES [1] Schneider cross-appeals the denial of his motion for directed verdict on the conspiracy claim. The jury verdict of no liability for civil conspiracy renders the cross-appeal moot. [2] The wing spar is a structural part of the wing. If the spar fails, the wing can break off in turbulent conditions during flight. [3] The court denied McClure's directed verdict motion on both counts. He did not appeal the final judgment against him. | 10-30-2013 | [
"727 So. 2d 1005 (1999) PALM BEACH ROAMER, INC., Appellant, v. William P. McCLURE, Albert Schneider, et al., Appellee. No. 97-1102. District Court of Appeal of Florida, Fifth District. February 12, 1999. Rehearing Denied March 22, 1999. Michael J. Ferrin, West Palm Beach, for Appellant. Thomas E. Ice, of Barwick, Dillian, Lambert & Ice, P.A., Miami, for Appellee. THOMPSON, J. Palm Beach Roamer, Inc. (\"PBR\"), timely appeals from a final judgment in part finding Albert Schneider and Schneider Mills, Inc. (collectively, \"Schneider\") not liable for fraud and conspiracy to commit fraud. Specifically, PBR challenges the directed verdict for Schneider on the fraud claim. [1] We affirm. In a three-count complaint against William P. McClure, McClure Aircraft, Inc. (collectively, \"McClure\"), and Schneider, PBR alleged that, in 1993, Schneider had an aircraft for sale and retained McClure to find a buyer. McClure, in turn, retained Discovery Aviation, Inc., whose agent, Gary Kimball, advertised the plane for sale. David A. Johnson, an employee of PBR, saw the advertisement and contacted Kimball.",
"Kimball represented that the plane was owned by Discovery Aviation and was in excellent condition. Johnson and F. Lee Bailey, president of PBR, inspected the plane and its log books, and took the plane for a test flight. Thereafter, PBR bought the aircraft for $129,000. PBR alleged that, shortly after the sale, it learned that Schneider held title to the plane at the time of the transaction. Also, after the purchase, PBR took the plane to Downtown Airpark in Oklahoma for maintenance and inspections. There, PBR learned that Downtown Airpark had inspected the same plane in February 1992 and found \"excessive wing spar corrosion. \"[2] The inspection is *1006 known in the industry as a \"208 inspection.\"",
"The inspection results and a notation about the necessity for repair or replacement of the lower spar cap \"prior to further flight\" had been recorded in the plane's log book. PBR alleged McClure and Schneider knew the plane had failed the inspection but decided to have the plane inspected by another organization which was not told about the previous inspection results. PBR further alleged McClure removed the results of the previous inspection from the log book with Schneider's knowledge and consent, and Bailey and Johnson were not told of the failed inspection when they went to see and test fly the plane. Count I of the complaint charged McClure and Schneider with fraudulently concealing the dangerous condition of the plane and misrepresenting its true condition.",
"Count II charged the defendants with conspiring to commit fraudulent concealment, and Count III sought punitive damages. At trial, McClure, who is in the business of selling aircraft, testified that he originally sold the subject aircraft to Schneider in 1986. In 1992, McClure found a tentative purchaser for the plane. A pre-purchase inspection was done by Downtown Airpark in Oklahoma in February 1992. McClure learned that the plane had failed the 208 inspection and that repairs would cost anywhere from $55,000 to $100,000. Downtown Airpark placed in the plane's log book a computer-generated sticker which showed the inspection results and the requirement for repair or replacement of the wing spar cap.",
"There was conflicting evidence regarding whether the sticker was actually affixed to a page in the log book or merely placed loosely in the book. McClure advised Schneider of the failed inspection and repair estimates. After the sale fell through, McClure told Schneider he disagreed with the results of the inspection done by Downtown Airpark. McClure testified that if a pre-purchase inspection reveals a defect and the prospective buyer rejects the plane, the owner has the option to have a second inspection done by another company. He suggested this to Schneider and told him that this is acceptable practice within the industry.",
"Schneider, who is not in the business of buying and selling aircraft and who has no expertise regarding wing spar inspections, agreed to a second opinion. The wing spar had not been repaired or replaced when, in April 1992, McClure arranged to have a second 208 inspection performed by Aero Inspection Services. The Aero inspector neither saw the log book containing the results of the prior inspection nor was advised that the plane had previously failed the inspection. McClure did not reveal the prior results because he wanted \"an unbiased inspection.\" When the plane passed the second inspection, McClure removed the Downtown Airpark sticker from the log book and discarded it, finding it \"inaccurate\" and superseded by the Aero inspection results.",
"He then had the Aero inspector make a log book entry indicating a \"satisfactory inspection.\" McClure testified that FAA rules permit an inspection report to be discarded when superseded by a subsequent inspection. He faxed Schneider copies of both inspection results and a note advising Schneider of the substitution made in the log book. Schneider decided to keep the plane after learning it had passed the second inspection. However, in January 1993, he traded in the plane to purchase a larger one from McClure. McClure took possession of the plane, although no paperwork was generated to effect a change of title. Gary Kimball of Discovery Aviation, Inc. bought the plane from McClure for $111,000 on or about 31 January 1993.",
"McClure stated that he felt he owned the plane and thought it unnecessary to obtain Schneider's permission to sell it to Kimball. Again, no bill of sale was generated. McClure did not disclose the failed 208 inspection to Kimball and he was not involved in the subsequent transaction between Kimball and PBR. He testified, however, that he knew of Kimball's plans to sell the plane and that Kimball ultimately received less than his asking price to compensate for certain other defects.",
"PBR put a $5,000 deposit on the plane on 23 February 1993, and the sale was completed on 3 March 1993. A bill of sale dated 23 February 1993 was generated for the *1007 Schneider-McClure sale, and Schneider took delivery of the new plane \"around the end of February.\" A bill of sale dated 24 February 1993 evidenced the sale of the plane by McClure to Kimball, and McClure testified that Kimball paid him then. At the close of the evidence, Schneider and McClure moved for directed verdicts. The court granted Schneider a directed verdict on the fraud claim, finding that Schneider made \"no statement ... as to any representation concerning ... the concealment of the failed 208 inspection.\" The court further found PBR's basis for finding Schneider liable \"smacks more of conspiracy than the agency relationship theory.\" The court thus denied Schneider's motion for directed verdict on the conspiracy count. Thereafter, the jury found that McClure had committed fraud and awarded PBR $70,000 in compensatory damages, but denied punitive damages. [3] The jury further determined that Schneider and McClure did not conspire to commit fraud.",
"PBR argues it produced sufficient evidence to show Schneider's active involvement in concealing the results of the failed 208 inspection, Schneider's ownership and control of the plane when PBR agreed to purchase it, and a principal/agent relationship between Schneider and McClure which would justify holding Schneider liable for fraud. Therefore, PBR argues, the trial court erred in directing a verdict for Schneider. A directed verdict is proper where the evidence and reasonable inferences therefrom, considered in a light most favorable to the nonmoving party, fail to establish a prima facie case of the claim asserted.",
"Reams v. Vaughn, 435 So. 2d 879 (Fla. 5th DCA 1983). To prove a prima facie case of fraud against Schneider, PBR had to produce evidence sufficient to show that: (1) Schneider knowingly made a false statement of material fact or concealed a material fact; (2) Schneider intended to induce PBR to act on the statement; (3) PBR relied on the statement; and (4) PBR suffered damages as a result of such reliance. Essex Ins. Co., Inc. v. Universal Entertainment & Skating Center, Inc., 665 So. 2d 360 (Fla. 5th DCA 1995). To hold Schneider liable for the fraud committed by McClure, PBR had to prove that McClure knowingly made a false statement of material fact or concealed a material fact, and that McClure was Schneider's agent acting within the scope of his authority. Barth v. Khubani, 705 So. 2d 72 (Fla. 3d DCA 1997). The trial court correctly found no evidence that Schneider himself made any affirmative statement concerning the condition of the plane.",
"It was Kimball who allegedly told PBR's representatives the plane was in excellent condition. Furthermore, the evidence did not show that Schneider himself concealed the failed 208 inspection. Rather, McClure concealed those results from Kimball while the log book showed that the plane passed the inspection by Aero Inspection Services. In addition, the evidence did not show McClure was acting as Schneider's agent when the misrepresentation occurred. Although Schneider held legal title to the plane until PBR purchased it, he had surrendered possession of the plane and its log books to McClure in January 1993, essentially passing equitable title to McClure.",
"Indeed, McClure testified that he felt he owned the plane once he took possession of it and considered it unnecessary to notify Schneider that Kimball had purchased it. PBR presented no evidence that Schneider knew of any transactions concerning the plane after he traded it. The bill of sale dated 23 February 1993 and McClure's testimony that he delivered Schneider's new plane \"around the end of February\" permit speculation, but not a reasonable inference, that McClure was to sell the trade-in on Schneider's behalf before delivering the new plane. Whereas it was clear that McClure acted as Schneider's agent in the 1992 tentative sale, the jury could not reach the same conclusion regarding the PBR transaction. It was during the later transaction that the fraud occurred and not in 1992. Thus, PBR failed to prove a prima facie case of fraud against Schneider directly *1008 or under agency principles. Accordingly, the trial court correctly directed a verdict in Schneider's favor. AFFIRMED. GRIFFIN, C.J.",
"and HARRIS, J., concur. NOTES [1] Schneider cross-appeals the denial of his motion for directed verdict on the conspiracy claim. The jury verdict of no liability for civil conspiracy renders the cross-appeal moot. [2] The wing spar is a structural part of the wing. If the spar fails, the wing can break off in turbulent conditions during flight. [3] The court denied McClure's directed verdict motion on both counts. He did not appeal the final judgment against him."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1835975/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.4 EXECUTION COPY
INTELLECTUAL PROPERTY LICENSE AGREEMENT between NORTHROP GRUMMAN SYSTEMS CORPORATION and NORTHROP GRUMMAN SHIPBUILDING, INC. Dated as of March 29, 2011
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TABLE OF CONTENTS
Page ARTICLE I DEFINITIONS 1 Section 1.1 Table of Definitions 1 Section 1.2 Certain Defined Terms 2 ARTICLE II GRANT OF LICENSES 4 Section 2.1 Grant of Licenses 4 Section 2.2 Have Made Rights 5 Section 2.3 Right to Sublicense 5 Section 2.4 Licensed Software 5 Section 2.5 Delivery of Embodiments of IP 6 Section 2.6 Jointly Developed Intellectual Property 6 Section 2.7 Use of Intellectual Property in Connection with Certain Intercompany Arrangements 6 Section 2.8 License to Use Background Intellectual Property 7 ARTICLE III OWNERSHIP 8 Section 3.1 Ownership 8 Section 3.2 Ownership of Improvements and Derivative Works 8 Section 3.3 No Other License 8 Section 3.4 Prosecution and Maintenance 8 ARTICLE IV CONFIDENTIALITY 8 Section 4.1 Proprietary Information 8 Section 4.2 Confidentiality 9 Section 4.3 Limited Exception 10 Section 4.4 Unauthorized Disclosure 10 ARTICLE V REPRESENTATIONS; DISCLAIMER 10 Section 5.1 Mutual Representations 10 Section 5.2 Disclaimer 11 Section 5.3 Limitations on Liability 11 Section 5.4 Indemnification 11 ARTICLE VI TERM 11 Section 6.1 Term 11
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TABLE OF CONTENTS (Continued)
Page ARTICLE VII TRANSFERABILITY 12 Section 7.1 Assignment 12 ARTICLE VIII GENERAL PROVISIONS 12 Section 8.1 Amendment and Modification 12 Section 8.2 Waiver 12 Section 8.3 Notices 13 Section 8.4 Interpretation 13 Section 8.5 Entire Agreement 14 Section 8.6 No Third-Party Beneficiaries 14 Section 8.7 Governing Law 14 Section 8.8 Submission to Jurisdiction 14 Section 8.9 Enforcement 15 Section 8.10 Severability 15 Section 8.11 Waiver of Jury Trial 15 Section 8.12 Counterparts 15 Section 8.13 Facsimile Signature 15 Section 8.14 Effect if Distribution Does Not Occur 16
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INTELLECTUAL PROPERTY LICENSE AGREEMENT INTELLECTUAL PROPERTY LICENSE AGREEMENT, dated as of March 29, 2011 (this “License Agreement”), between Northrop Grumman Systems Corporation, a Delaware corporation (“NGSC”) and Northrop Grumman Shipbuilding, Inc., a Virginia corporation (“NGSB”). RECITALS A. NGSC, NGSB, Northrop Grumman Corporation, a Delaware corporation (“NGC”), New P, Inc., a Delaware corporation (“New NGC”), and Huntington Ingalls Industries, Inc., a Delaware corporation (“HII”), have entered into the Separation and Distribution Agreement (the “Separation Agreement”), dated as of the date hereof, pursuant to which New NGC intends to distribute to its stockholders its entire interest in HII by way of a stock dividend (the “Distribution”). B. Following the Distribution, NGSC will be a wholly owned subsidiary of New NGC (which will be renamed “Northrop Grumman Corporation”) and NGSB will be a wholly owned subsidiary of HII. C. The parties wish to set forth their agreements as to certain matters regarding Intellectual Property (as defined below) under which each party shall grant to the other a non-exclusive license of the Intellectual Property owned by such party or any of its Affiliates that is used by the other party in the conduct of their respective businesses and within the Field of Use (as defined below). AGREEMENT In consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties agree as follows: ARTICLE I DEFINITIONS Section 1.1 Table of Definitions. The following terms have the meanings set forth on the pages referenced below:
Definition Page Affiliate 2 Background Intellectual Property 7 Background IP Owner 7 Business Day 2 Designated Intellectual Property 2 Disclosing Party 8 Distribution 1 Field of Use 2 Foreground Intellectual Property 7
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Definition Page Foreground IP Owner 7 Governmental Authority 3 HII 1 Improved Software 5 Indemnifying Party 11 Intellectual Property 3 License Agreement 1 Licensed Intellectual Property 3 Licensee 3 Licensor 3 Licensor Indemnitees 11 Line of Business 3 New NGC 1 NGC 1 NGSB 1 NGSC 1 Person 3 Proprietary Information 8 Receiving Party 8 Relevant Usage Period 4 Separation Agreement 1 Software 4 Subsidiary 4
Section 1.2 Certain Defined Terms. For the purposes of this License Agreement: “Affiliate” of any Person means a Person that controls, is controlled by, or is under common control with such Person; provided, however, that for purposes of this License Agreement, none of the New NGC Entities (as defined in the Separation Agreement) shall be deemed to be an Affiliate of any HII Entity (as defined in the Separation Agreement) and none of the HII Entities shall be deemed to be an Affiliate of any New NGC Entity. As used herein, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or other interests, by contract or otherwise. “Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close. “Designated Intellectual Property” means the Intellectual Property identified on Schedule C. “Field of Use” means, (a) as to any Licensed Intellectual Property other than the Designated Intellectual Property, the use of such Intellectual Property that the Licensee
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has made in the ordinary course of its business in the Relevant Usage Period prior to and including the Distribution, including the general manner and scope of such use in the Line of Business for which the Intellectual Property has been used during such Relevant Usage Period and (b) as to any Designated Intellectual Property, the applicable field of use specified on Schedule C. In the event of a dispute between the parties as to whether a particular use by a Licensee of Licensed Intellectual Property licensed to such Licensee is within the applicable Field of Use, the Licensee will have the burden of proof by a preponderance of the evidence. For the avoidance of doubt, the general manner and scope of such use shall include broad uses of the Intellectual Property, such as use in customer proposals. “Governmental Authority” means any United States or non-United States federal, state, local, territorial, tribal or international court, government, department, commission, board, bureau, agency, official or other legislative, judicial, regulatory, administrative or governmental authority. “Intellectual Property” or “IP” means all of the following intellectual property rights, whether arising under the laws of the United States or the laws of any other jurisdiction: (a) patents, (b) copyrights, (c) trade secrets, know-how and other confidential and proprietary information, and (d) all registrations and applications for registration of any of the foregoing, but excluding (e) trademarks, service marks, domain names and similar rights. “Licensed Intellectual Property” means (a) all Intellectual Property owned by a party or any of its Affiliates as of the Distribution that, in the Relevant Usage Period prior to or at the time of the Distribution, has been or is being used by the other party or any of its Affiliates in the ordinary course of such other party’s or any of its Affiliate’s businesses, excluding any such Intellectual Property that prior to the Distribution, has been or is being used by the other party or any of the other party’s Affiliates solely in connection with such other party or such other party’s Affiliate performing as a party to an intercompany teaming agreement, intercompany work order or similar intercompany agreement with such party or any of its Affiliates and (b) the Designated Intellectual Property. “Licensee” means, collectively, a party and its Affiliates in their capacity as licensees to which a license of Licensed Intellectual Property is granted by Licensor hereunder. “Licensor” means, collectively, a party and its Affiliates in their capacity as licensors of Licensed Intellectual Property that is licensed to Licensee hereunder. “Line of Business” means a set of one or more highly related products which service a particular business need. “Person” means an individual, corporation, partnership, limited liability company, limited liability partnership, syndicate, person, trust, association, organization or
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other entity, including any Governmental Authority, and including any successor, by merger or otherwise, of any of the foregoing. “Relevant Usage Period” means the 12-month period prior to the Distribution. “Software” means computer software and databases, together with, as applicable, object code, source code, firmware and embedded versions thereof and documentation related thereto. “Subsidiary” of any Person means any corporation or other organization, whether incorporated or unincorporated, of which at least a majority of the securities or interests having by the terms thereof ordinary voting power to elect at least a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries; provided, however, that no Person that is not directly or indirectly wholly owned by any other Person shall be a Subsidiary of such other Person unless such other Person controls, or has the right, power or ability to control, that Person. ARTICLE II GRANT OF LICENSES Section 2.1 Grant of Licenses. (a) Subject to the terms and conditions of this License Agreement, each Licensor hereby grants to the respective Licensee a non-exclusive, worldwide, fully paid, non-transferable (except as expressly provided in Article VII), irrevocable and perpetual license, solely within such Licensee’s Field of Use, to: (i) make (including the right to use any apparatus and practice any method in making), have made, make improvements on, use, import, offer for sale, lease, sell and/or otherwise transfer products and provide services under the patents included in such Licensor’s Licensed Intellectual Property (including any patents that hereafter issue on patent applications that are pending as of the Distribution); (ii) use, reproduce, distribute, prepare derivative works of, and publicly perform and publicly display any original works of authorship (or any derivative works based thereon) that are the subject of any of the copyrights included in such Licensor’s Licensed Intellectual Property; and (iii) use and exploit any know-how or other trade secrets or proprietary information included in such Licensor’s Licensed Intellectual Property, subject to compliance with the confidentiality obligations set forth in Article IV. (b) Each party shall cause its Affiliates to grant the licenses contemplated to be granted by such Affiliates hereunder and to perform all of their
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obligations imposed hereunder, including the confidentiality obligations set forth in Article IV. (c) Each Licensee will, and will cause its Affiliates to, comply with the Field of Use and all other limitations or restrictions imposed under this License Agreement with respect to its and its Affiliates’ use of the Licensed Intellectual Property licensed to it and its Affiliates hereunder. Section 2.2 Have Made Rights. The licenses granted in Sections 2.1(a)(i) by the applicable Licensor to the applicable Licensee to have products made by a third party or to import products: (a) apply only when the specifications for such Licensee’s products were created by or specifically for Licensee (either solely or jointly with one or more third parties), (b) extend only to those claims of Licensor’s licensed patents, the infringement of which would be necessitated by compliance with such specifications and (c) do not apply to any methods used, or any products in substantially the same form manufactured or marketed, by such third party, prior to Licensee’s furnishing of such specifications. Section 2.3 Right to Sublicense. Except as otherwise provided on Schedule C with respect to the Designated Intellectual Property, each Licensee shall have the right to sublicense freely the rights and licenses granted by the applicable Licensor pursuant to Section 2.1(a) to Licensee’s contractors, sub-contractors and agents for use solely in connection with the operation of Licensee’s business and within the Field of Use. Each Licensee shall ensure that all such permitted sublicensees shall abide by the terms and conditions of this License Agreement, to the extent applicable, and all such grants of sublicenses shall be made in writing and executed by all parties thereto. Section 2.4 Licensed Software. The parties agree and acknowledge that any Software that is licensed under this License Agreement shall be licensed only in the form in which it is being used by the Licensee in the ordinary course of its business in the Relevant Usage Period prior to and including the Distribution; provided that, in the case of any Software included in the Designated Intellectual Property, such Software will be licensed in the form specified on Schedule C. Accordingly, in the case of Software that is not included in the Designated Intellectual Property, if a Licensee is using any source code of any Software licensed to it hereunder by the Licensor in the ordinary course of its business in the Relevant Usage Period prior to and including the Distribution, such Licensee will be permitted to retain such source code and the licenses granted under Section 2.1(a) to such Licensee shall extend to such source code. Notwithstanding the foregoing, for the Software identified on Schedule B hereto that is undergoing improvement or as to which a derivative work is being prepared (“Improved Software”), the parties agree and acknowledge that any such Improved Software that is licensed under this License Agreement shall be licensed in such form existing immediately after successful completion of testing of the improvement and/or derivative works that is in process of being made or prepared as of the Distribution, even if such form comes into existence after the Distribution. The respective Licensor hereby agrees to deliver such Improved Software in the licensed form, as soon as practicable after successful completion of testing of the improvement and/or derivative work. Thereafter, the Licensor shall have no further obligation to deliver any improvements or derivative works of such Improved
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Software to each Licensee under this License Agreement. Accordingly, for such Improved Software that has been used by the Licensee in source code form in the ordinary course of its business in the Relevant Usage Period prior to and including the Distribution, such Licensee will be permitted to obtain such source code in the form existing immediately after such successful completion of testing and the licenses granted under Section 2.1(a) to such Licensee shall extend to such source code. For the avoidance of doubt, this License Agreement provides for the licensing of Intellectual Property that is owned by a party or an Affiliate thereof and nothing in this License Agreement provides for any sublicensing of Software or any other Intellectual Property that is owned by a third party or any assignment of any license of Software or any other Intellectual Property that is owned by a third party. Section 2.5 Delivery of Embodiments of IP. To the extent that a Licensee is not in possession as of the Distribution of any embodiment of Licensed Intellectual Property licensed to such Licensee hereunder, the respective Licensor hereby agrees to deliver to such Licensee upon request, as soon as practicable after the Distribution, copies of all such embodiments of such Licensed Intellectual Property. Thereafter, each Licensor shall have no further obligation to deliver any Licensed Intellectual Property, or copies thereof, to each Licensee under this License Agreement. Each Licensor shall have no further access to, or any obligation to maintain or service, any electronic copies of such Licensed Intellectual Property that is delivered to the Licensee. Section 2.6 Jointly Developed Intellectual Property. If either party or any of its Affiliates materially contributed to the development of any Intellectual Property that is owned by the other party or any of the other party’s Affiliates as of the Distribution, and such Intellectual Property does not constitute Licensed Intellectual Property that is licensed to such party and such party’s Affiliates hereunder, the other party agrees that, if such party requests that it and its Affiliates be granted a license to use such Intellectual Property within the scope of their Lines of Business existing as of the Distribution, the other party will consider in good faith granting such requested license. Section 2.7 Use of Intellectual Property in Connection with Certain Intercompany Arrangements. Any Intellectual Property that, at the time of the Distribution, (a) is owned by any member of the New NGC Group (as defined in the Separation Agreement), but is in the possession of, or is being used by, a member of the HII Group (as defined in the Separation Agreement) in connection with such member of the HII Group performing as a party to an intercompany teaming agreement, intercompany work order or similar intercompany agreement with a member of the New NGC Group, shall be licensed by such member of the New NGC Group to such member of the HII Group pursuant to the terms of any intellectual property license granted to such member of the HII Group in the applicable intercompany agreement or, if the applicable intercompany agreement does not set forth the terms of such intellectual property license, then pursuant to the terms of an intellectual property license that such member of the New NGC Group and such member of the HII Group shall negotiate in good faith promptly after the Distribution, or (b) is owned by any member of the HII Group, but is in the possession of, or is being used by, a member of the New NGC Group in connection with such member of the New NGC Group performing as a party to an intercompany teaming agreement,
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intercompany work order or similar intercompany agreement with a member of the HII Group, shall be licensed by such member of the HII Group to such member of the New NGC Group pursuant to the terms of any intellectual property license granted to such member of the New NGC Group in the applicable intercompany agreement or, if the applicable intercompany agreement does not set forth the terms of such intellectual property license, then pursuant to the terms of an intellectual property license that such member of the HII Group and such member of the New NGC Group shall negotiate in good faith promptly after the Distribution. Section 2.8 License to Use Background Intellectual Property. (a) “Background Intellectual Property” means, with respect to an Intellectual Property asset owned by one party or any of its Affiliates (“Foreground Intellectual Property”), Intellectual Property that was owned by the other party or any of the other party’s Affiliates prior to the creation or development of such Foreground Intellectual Property, and that is essential to the effective use or practice of such Foreground Intellectual Property. (b) “Background IP Owner” means the party or any of its Affiliates that owns the Background Intellectual Property. (c) “Foreground IP Owner” means the party or its Affiliates that owns or has been licensed the Foreground Intellectual Property. (d) The Background IP Owner hereby grants to the Foreground IP Owner a non-exclusive, worldwide, fully paid, irrevocable and perpetual license to use or practice and have had practiced such Background Intellectual Property of the Background IP Owner that is essential to the effective use or practice of the Foreground Intellectual Property. (e) The licenses granted in Section 2.8(d) shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Notwithstanding any other provisions in this License Agreement, the Foreground IP Owner shall not assign (in whole or in part) or sublicense any licensed Background Intellectual Property to any known competitor of the Background IP Owner in the technical field of such Background Intellectual Property. (f) As a further limitation on the provisions of Section 4.2(a), in the case of licensed Background Intellectual Property, in maintaining the confidentiality of Proprietary Information of the Disclosing Party related to such Background Intellectual Property, the Foreground IP Owner shall not disclose or give access to any such Proprietary Information to any known competitor of the Background IP Owner in the technical field of such Background Intellectual Property.
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ARTICLE III OWNERSHIP Section 3.1 Ownership. Each Licensee acknowledges that, as between the parties, each Licensor owns all right, title and interest in and to its Licensed Intellectual Property. Each Licensee agrees that it shall not, directly or indirectly, challenge the validity, enforceability or ownership of the respective Licensor’s Licensed Intellectual Property. Section 3.2 Ownership of Improvements and Derivative Works. Each party or its applicable Affiliate will own exclusively all improvements and derivative works created or developed by such party or its Affiliate that are derived from or based on any Licensed Intellectual Property licensed from the other party hereunder, subject to the other party’s retained ownership of the Licensed Intellectual Property on which such improvements and derivative works are based or from which they are derived. Other than for Improved Software as provided in Section 2.4, neither party (nor any Affiliate thereof) shall have any obligation to disclose or license any such improvements or derivative works to the other party. Section 3.3 No Other License. Except as expressly provided in this License Agreement, nothing herein shall be construed as granting to a party any license or other rights under any other Intellectual Property rights of the other party whether by implication or estoppel. Nothing herein shall grant either party, in selling or promoting the sale of products or services, the right to directly or indirectly use or refer to the trademarks or trademark type rights of the other party or trademarks or other marks and names similar thereto. Section 3.4 Prosecution and Maintenance. Each Licensor shall have the sole and exclusive right, but not the obligation, at its sole cost and expense: (a) to file, prosecute, obtain and maintain, throughout the world, any patents, patent applications and other registrations or applications for registration included in the Licensed Intellectual Property owned by such Licensor, and (b) to conduct or participate, throughout the world, in any interference, reexaminaton, opposition, cancellation, nullification and other interpartes, ex partes or other types of proceedings before the U.S. Patent & Trademark Office and similar authorities, registries or agencies, and all appeals thereof (regardless of forum) involving or relating to such Licensed Intellectual Property. The manner in which any such filing, prosecution, maintenance or any other action is conducted by such Licensor under this Section 3.4 shall be in such Licensor’s sole control and discretion. ARTICLE IV CONFIDENTIALITY Section 4.1 Proprietary Information. For the purposes hereof, “Proprietary Information” of a party (the “Disclosing Party”) means all business sensitive and/or proprietary information of the Disclosing Party disclosed to, or in the possession of, the other party (the “Receiving Party”), whether disclosed orally, verbally, visually, electronically, in tangible form or otherwise, and regardless of whether marked, denoted or
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otherwise indicated as “business sensitive,” “proprietary,” “private” or words of similar import. Proprietary Information of Licensor shall include trade secrets and other business sensitive and proprietary information included in the Licensed Intellectual Property, as well as any business and/or sensitive information that has been made available by a Party or any of its Affiliates to the other party or any of the other party’s Affiliates in connection with such other party or such other party’s Affiliate performing as a party to an intercompany teaming agreement, intercompany work order or similar intercompany agreement. Section 4.2 Confidentiality. (a) In maintaining the confidentiality of Proprietary Information of the Disclosing Party, the Receiving Party shall exercise the same degree of care that it exercises with its own Proprietary Information, but in no event less than a reasonable degree of care. Without limiting any of the foregoing, the Receiving Party shall not disclose or give access to any such Proprietary Information to any third party, other than its personnel, sublicensees or customers pursuant to contract requirements, without the prior written consent of the Disclosing Party. The Receiving Party shall restrict access to such Proprietary Information to those of its personnel and sublicensees having a strict need for access thereto, and shall use commercially reasonable efforts to ensure that each of its personnel and sublicensees holds in confidence the Proprietary Information of the Disclosing Party in accordance with the terms and conditions hereof. The Receiving Party shall, and shall cause its personnel and sublicensees to, make no use, directly or indirectly, of any Proprietary Information of the Disclosing Party for any purpose other than as authorized hereunder. The Receiving Party shall not copy or reproduce the Proprietary Information or any portion thereof, or remove any tangible copies of the Proprietary Information or any portion thereof from the Receiving Party’s facilities except as reasonably required in connection with exercising the rights licensed hereunder or as expressly permitted by the Disclosing Party. (b) As a further limitation on the provisions of Section 4.2(a), in the case of assets listed as Designated Intellectual Property, if Schedule C includes sublicensing limitations for an asset and such sublicensing limitations prohibit sublicensing of such asset to known competitors except under strict non-disclosure agreement, then in maintaining the confidentiality of Proprietary Information of the Disclosing Party related to such asset, the Receiving Party shall ensure that the strict non-disclosure agreement meets the non-disclosure requirements set forth at the end of Schedule C. (c) The confidentiality obligations contained in Section 4.2(a) and (b) and Section 2.8(f) shall not apply to any information that contemporaneous written records of the Receiving Party demonstrate (a) was lawfully disclosed to the Receiving Party without restriction by an unrelated third party who does not have any obligations of confidentiality to the Disclosing Party, (b) the Receiving Party independently developed such information prior to the Distribution without any use of or reference to the Proprietary Information of the Disclosing Party or (c) is or becomes part of the public domain through no fault of the Receiving Party, it being understood that if only a portion of any such information is or becomes part of the public domain (including by way of issued patents or
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published patent applications), the confidentiality obligations of the Receiving Party with respect to the rest of the Proprietary Information shall remain intact without modification. Section 4.3 Limited Exception. The obligation of confidentiality and non-disclosure contained in this License Agreement shall not apply to the extent that the Receiving Party is required to disclose any Proprietary Information of the Disclosing Party by a valid subpoena, order or regulation of a governmental agency or a court of competent jurisdiction having jurisdiction over the Receiving Party; provided, however, that the Receiving Party shall not intentionally make any such disclosure without (a) first notifying the Disclosing Party and allowing the Disclosing Party a reasonable opportunity to prevent or limit such disclosure (either by challenging or quashing any such subpoena, order or regulation or obtaining injunctive relief from, or a protective order with respect to, the obligation to make such disclosure), and (b) reasonably cooperating, at Disclosing Party’s expense, with the Disclosing Party’s efforts to prevent or limit such disclosure. Section 4.4 Unauthorized Disclosure. The Receiving Party acknowledges and confirms that the Proprietary Information of the Disclosing Party constitutes proprietary information and trade secrets valuable to the Disclosing Party, and that the unauthorized use, loss or outside disclosure of such Proprietary Information shall cause irreparable injury to the Disclosing Party. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of such Proprietary Information, and will cooperate with the Disclosing Party in every reasonable way to help regain possession of such Proprietary Information and to prevent its further unauthorized use. The Receiving Party acknowledges and agrees that monetary damages may not be a sufficient remedy for unauthorized disclosure of Proprietary Information of the Disclosing Party and that the Disclosing Party shall be entitled, without waiving other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. The prevailing party shall be entitled to recover reasonable attorney’s fees incurred by it in connection with any action commenced by the Disclosing Party against the Receiving Party arising out of or relating to any alleged disclosure of Proprietary Information of the Disclosing Party by the Receiving Party in breach of this License Agreement. ARTICLE V REPRESENTATIONS; DISCLAIMER Section 5.1 Mutual Representations. Each party represents and warrants that (a) it has the power and authority to enter into this License Agreement and has taken all necessary corporate action to authorize its performance under this License Agreement; (b) this License Agreement, when executed and delivered, will constitute a legal, valid and binding obligation of each such party, enforceable in accordance with its terms; (c) no consent or authorization of, filing with, or notice to any governmental authority is required in connection with its performance under this License Agreement; and (d) its entering into this License Agreement or performance by it hereunder will not violate any federal, state or local licensing or other statute, rule or regulation, or any contractual obligation of such party. Each party agrees to comply with all applicable Laws, rules and regulations in connection with its activities under this License Agreement.
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Section 5.2 Disclaimer. Except as expressly set forth in this License Agreement, each of the licenses of Licensed Intellectual Property granted by a Licensor hereunder are made “as-is” and “where-is.” Each Licensor hereby disclaims all representations or warranties of any kind, either express or implied, including any warranty of merchantability, fitness for a particular purpose, non-infringement or any other matter with respect to any Licensed Intellectual Property licensed by such Licensor, whether used alone or combined with other products or services. Section 5.3 Limitations on Liability. Except for any willful breach of Articles III and IV, under no circumstances shall either party be liable to the other party for indirect, incidental, consequential, punitive or exemplary damages (even if such other party has been advised of the possibility of such damages) arising from a claim for breach of any provision of this License Agreement. Notwithstanding the foregoing, the provisions of this Section 5.3 shall not limit an Indemnifying Party’s indemnification obligations with respect to any Liability that any Licensor Indemnitee may have to any third party that is not an Affiliate of any party. Section 5.4 Indemnification. Following the Distribution, each Licensee (an “Indemnifying Party”) shall indemnify, defend and hold harmless the respective Licensor and such Licensor’s Affiliates and its and their respective current, former and future directors, officers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Licensor Indemnitees”), from and against any and all (a) Third Party Claims (as defined in the Separation Agreement) asserted or brought against any of the Licensor Indemnitees based on or relating to the exercise by the Indemnifying Party or any of its Affiliates of the license to use the Licensed Intellectual Property that is granted to such Licensee or any such Affiliates hereunder or otherwise relating to the Indemnifying Party’s or any of its Affiliates’ use of the Licensed Intellectual Property licensed hereunder and (b) all Liabilities relating to, arising out of or resulting from any such Third Party Claims. The notice and other indemnification procedures set forth in Sections 5.4, 5.5 (other than Section 5.5(b)), 5.6, 5.7 and 5.8 of the Separation Agreement that apply to indemnification claims arising under Article V of the Separation Agreement are hereby incorporated by reference and shall apply to any indemnification claims arising under this Section 5.4. ARTICLE VI TERM Section 6.1 Term. The rights granted to each party under this License Agreement shall be irrevocable and perpetual and shall not be terminable by either party, and such rights shall continue in full force and effect notwithstanding any breach by the other party hereunder; provided that, if any Licensee breaches any limitations or restrictions imposed on it in Sections 2.1, 2.2, 2.3 or 2.8 with respect to its use of any Intellectual Property licensed to it hereunder, or materially breaches any confidentiality obligations set forth in Article IV with respect to its use of any Intellectual Property licensed to it hereunder, then, effective upon 30 days’ prior written notice by the Licensor to the Licensee, such Intellectual Property thereafter shall be excluded from the Intellectual Property licensed to the Licensee hereunder and, upon the expiration of such 30-day
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period, Licensee shall cease any and all use of such Intellectual Property unless, prior to expiration of such 30-day period, Licensee has fully cured such breach. ARTICLE VII TRANSFERABILITY Section 7.1 Assignment. This License Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign this License Agreement without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign or otherwise transfer this License Agreement or its rights hereunder, in whole or in part, to any of its Affiliates or to a third party in connection with the sale of all or substantially all of the assets of such party or any of its Affiliates to which this License Agreement pertains or in connection with a merger, consolidation, corporate reorganization or any change of control of such party or any of its Affiliates or a sale or divestiture of any of the product lines, operating units or business divisions of such party or any of its Affiliates; provided that (a) the assigning party shall provide written notice to the other party of any such assignment, and (b) such assignee shall agree to assume all applicable obligations of the assigning party hereunder, and to be subject to the terms of this License Agreement. For the avoidance of doubt, any permitted assignee of any license granted under Article II of this License Agreement is subject to the Field of Use and all other limitations or restrictions imposed under this License Agreement with respect to such license, including in particular the Field of Use limitation that limits use of Licensed Intellectual Property to use by and in the Line of Business where and as the Licensed Intellectual Property was used during the Relevant Usage Period prior to the Distribution; provided further that, in the case of Designated Intellectual Property, the applicable Field of Use limitation and the applicable Sublicensing Limitations will continue to be as specified on Schedule C. ARTICLE VIII GENERAL PROVISIONS Section 8.1 Amendment and Modification. This License Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto, signed on behalf of each party. Section 8.2 Waiver. No failure or delay of any party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder. Any agreement on the part of any party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such party.
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Section 8.3 Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, or if by facsimile, upon written confirmation of receipt by facsimile, e-mail or otherwise, (b) on the first Business Day following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier or (c) on the earlier of confirmed receipt or the fifth Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered to the addresses set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice:
(i) if to NGSC prior to the date on which New NGC relocates its corporate headquarters, to: c/o Northrop Grumman Corporation 1840 Century Park East Los Angeles, CA 90067-2199 Attention: General Counsel Facsimile: (310) 556-4910 (ii) if to NGSC after the date on which New NGC relocates its corporate headquarters, to: c/o Northrop Grumman Corporation 2980 Fairview Park Drive Falls Church, VA 22042 Attention: General Counsel Facsimile: (703) 875-1852 (iii) if to NGSB, to: c/o Huntington Ingalls Industries, Inc. 4101 Washington Avenue Newport News, VA 23607 Attention: General Counsel Facsimile: (757) 688-1408
Section 8.4 Interpretation. When a reference is made in this License Agreement to a Section, Article or Exhibit such reference shall be to a Section, Article or Exhibit of this License Agreement unless otherwise indicated. The table of contents and headings contained in this License Agreement or in any Exhibit are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of this License Agreement. All words used in this License Agreement will be construed to be of such gender or number as the circumstances require. Any capitalized terms used in any Exhibit but not otherwise defined therein shall have the meaning as defined in this License Agreement. All Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this License Agreement as if set forth herein. The word “including” and words of similar import when used in this License Agreement shall mean “including, without limitation,” unless otherwise specified. Where either party’s consent is required
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hereunder, except as otherwise specified herein, such party’s consent may be granted or withheld in such party’s sole and absolute discretion. The word “day” when used in this License Agreement shall mean “calendar day,” unless otherwise specified. Section 8.5 Entire Agreement. This License Agreement, the Separation Agreement and the Exhibits, Schedules and Appendices hereto and thereto constitute the entire agreement, and supersedes all prior written agreements, arrangements, communications and understandings and all prior and contemporaneous oral agreements, arrangements, communications and understandings among the parties with respect to the subject matter hereof. This License Agreement shall not be deemed to contain or imply any restriction, covenant, representation, warranty, agreement or undertaking of any party with respect to the transactions contemplated hereby other than those expressly set forth herein or in any document required to be delivered hereunder. Notwithstanding any oral agreement or course of action of the parties or their representatives to the contrary, no party to this License Agreement shall be under any legal obligation to enter into or complete the transactions contemplated hereby unless and until this License Agreement shall have been executed and delivered by each of the parties. Section 8.6 No Third-Party Beneficiaries. Nothing in this License Agreement, express or implied, is intended to or shall confer upon any Person other than the parties and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this License Agreement. Section 8.7 Governing Law. This License Agreement and all disputes or controversies arising out of or relating to this License Agreement or the transactions contemplated hereby shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to the laws of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of New York (other than Section 5-1401 of the New York General Obligations Law). Section 8.8 Submission to Jurisdiction. Each of the parties irrevocably agrees that any legal action or proceeding arising out of or relating to this License Agreement brought by any other party or its successors or assigns shall be brought and determined in any federal court sitting in the Borough of Manhattan in the City of New York (or, if such court lacks subject matter jurisdiction, in any appropriate New York State or federal court), and each of the parties hereby irrevocably submits to the exclusive jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such action or proceeding arising out of or relating to this License Agreement and the transactions contemplated hereby. Each of the parties agrees not to commence any action, suit or proceeding relating thereto except in the courts described above in New York, other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in New York as described herein. Each of the parties further agrees that notice as provided in Section 8.3 shall constitute sufficient service of process and the parties further waive any argument that such service is insufficient. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action or proceeding arising out of or relating to this License Agreement or the
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transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts in New York as described herein, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this License Agreement, or the subject matter hereof, may not be enforced in or by such courts. Section 8.9 Enforcement. The parties agree that irreparable damage would occur in the event that any of the provisions of this License Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, each of the parties shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this License Agreement and to enforce specifically the terms and provisions of this License Agreement in any federal court sitting in the Borough of Manhattan in the City of New York (or, if such court lacks subject matter jurisdiction, in any appropriate New York State or federal court), this being in addition to any other remedy to which such party is entitled at law or in equity. Each of the parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any law to post security as a prerequisite to obtaining equitable relief. Section 8.10 Severability. Whenever possible, each provision or portion of any provision of this License Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision or portion of any provision of this License Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this License Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein. Section 8.11 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LICENSE AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LICENSE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Section 8.12 Counterparts. This License Agreement may be executed in one or more counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties. Section 8.13 Facsimile Signature. This License Agreement may be executed by facsimile signature and a facsimile signature shall constitute an original for all purposes.
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Section 8.14 Effect if Distribution Does Not Occur. If the Distribution does not occur, then this License Agreement shall automatically be terminated and all actions and events that are, under this License Agreement, to be taken or occur effective as of the Distribution, or otherwise in connection with the Distribution shall not be taken or occur except to the extent specifically agreed by the parties. [The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties have caused this License Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
NORTHROP GRUMMAN SYSTEMS CORPORATION By: /s/ Mark Rabinowitz Name: Mark Rabinowitz Title: President and Treasurer NORTHROP GRUMMAN SHIPBUILDING, INC. By: /s/ C. Michael Petters Name: C. Michael Petters Title: President and Chief Executive Officer
[Signature Page to Intellectual Property License Agreement] | [
"Exhibit 10.4 EXECUTION COPY INTELLECTUAL PROPERTY LICENSE AGREEMENT between NORTHROP GRUMMAN SYSTEMS CORPORATION and NORTHROP GRUMMAN SHIPBUILDING, INC. Dated as of March 29, 2011 -------------------------------------------------------------------------------- TABLE OF CONTENTS Page ARTICLE I DEFINITIONS 1 Section 1.1 Table of Definitions 1 Section 1.2 Certain Defined Terms 2 ARTICLE II GRANT OF LICENSES 4 Section 2.1 Grant of Licenses 4 Section 2.2 Have Made Rights 5 Section 2.3 Right to Sublicense 5 Section 2.4 Licensed Software 5 Section 2.5 Delivery of Embodiments of IP 6 Section 2.6 Jointly Developed Intellectual Property 6 Section 2.7 Use of Intellectual Property in Connection with Certain Intercompany Arrangements 6 Section 2.8 License to Use Background Intellectual Property 7 ARTICLE III OWNERSHIP 8 Section 3.1 Ownership 8 Section 3.2 Ownership of Improvements and Derivative Works 8 Section 3.3 No Other License 8 Section 3.4 Prosecution and Maintenance 8 ARTICLE IV CONFIDENTIALITY 8 Section 4.1 Proprietary Information 8 Section 4.2 Confidentiality 9 Section 4.3 Limited Exception 10 Section 4.4 Unauthorized Disclosure 10 ARTICLE V REPRESENTATIONS; DISCLAIMER 10 Section 5.1 Mutual Representations 10 Section 5.2 Disclaimer 11 Section 5.3 Limitations on Liability 11 Section 5.4 Indemnification 11 ARTICLE VI TERM 11 Section 6.1 Term 11 -------------------------------------------------------------------------------- TABLE OF CONTENTS (Continued) Page ARTICLE VII TRANSFERABILITY 12 Section 7.1 Assignment 12 ARTICLE VIII GENERAL PROVISIONS 12 Section 8.1 Amendment and Modification 12 Section 8.2 Waiver 12 Section 8.3 Notices 13 Section 8.4 Interpretation 13 Section 8.5 Entire Agreement 14 Section 8.6 No Third-Party Beneficiaries 14 Section 8.7 Governing Law 14 Section 8.8 Submission to Jurisdiction 14 Section 8.9 Enforcement 15 Section 8.10 Severability 15 Section 8.11 Waiver of Jury Trial 15 Section 8.12 Counterparts 15 Section 8.13 Facsimile Signature 15 Section 8.14 Effect if Distribution Does Not Occur 16 ii -------------------------------------------------------------------------------- INTELLECTUAL PROPERTY LICENSE AGREEMENT INTELLECTUAL PROPERTY LICENSE AGREEMENT, dated as of March 29, 2011 (this “License Agreement”), between Northrop Grumman Systems Corporation, a Delaware corporation (“NGSC”) and Northrop Grumman Shipbuilding, Inc., a Virginia corporation (“NGSB”).",
"RECITALS A. NGSC, NGSB, Northrop Grumman Corporation, a Delaware corporation (“NGC”), New P, Inc., a Delaware corporation (“New NGC”), and Huntington Ingalls Industries, Inc., a Delaware corporation (“HII”), have entered into the Separation and Distribution Agreement (the “Separation Agreement”), dated as of the date hereof, pursuant to which New NGC intends to distribute to its stockholders its entire interest in HII by way of a stock dividend (the “Distribution”). B.",
"Following the Distribution, NGSC will be a wholly owned subsidiary of New NGC (which will be renamed “Northrop Grumman Corporation”) and NGSB will be a wholly owned subsidiary of HII. C. The parties wish to set forth their agreements as to certain matters regarding Intellectual Property (as defined below) under which each party shall grant to the other a non-exclusive license of the Intellectual Property owned by such party or any of its Affiliates that is used by the other party in the conduct of their respective businesses and within the Field of Use (as defined below). AGREEMENT In consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties agree as follows: ARTICLE I DEFINITIONS Section 1.1 Table of Definitions. The following terms have the meanings set forth on the pages referenced below: Definition Page Affiliate 2 Background Intellectual Property 7 Background IP Owner 7 Business Day 2 Designated Intellectual Property 2 Disclosing Party 8 Distribution 1 Field of Use 2 Foreground Intellectual Property 7 -------------------------------------------------------------------------------- Definition Page Foreground IP Owner 7 Governmental Authority 3 HII 1 Improved Software 5 Indemnifying Party 11 Intellectual Property 3 License Agreement 1 Licensed Intellectual Property 3 Licensee 3 Licensor 3 Licensor Indemnitees 11 Line of Business 3 New NGC 1 NGC 1 NGSB 1 NGSC 1 Person 3 Proprietary Information 8 Receiving Party 8 Relevant Usage Period 4 Separation Agreement 1 Software 4 Subsidiary 4 Section 1.2 Certain Defined Terms.",
"For the purposes of this License Agreement: “Affiliate” of any Person means a Person that controls, is controlled by, or is under common control with such Person; provided, however, that for purposes of this License Agreement, none of the New NGC Entities (as defined in the Separation Agreement) shall be deemed to be an Affiliate of any HII Entity (as defined in the Separation Agreement) and none of the HII Entities shall be deemed to be an Affiliate of any New NGC Entity. As used herein, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or other interests, by contract or otherwise. “Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close.",
"“Designated Intellectual Property” means the Intellectual Property identified on Schedule C. “Field of Use” means, (a) as to any Licensed Intellectual Property other than the Designated Intellectual Property, the use of such Intellectual Property that the Licensee 2 -------------------------------------------------------------------------------- has made in the ordinary course of its business in the Relevant Usage Period prior to and including the Distribution, including the general manner and scope of such use in the Line of Business for which the Intellectual Property has been used during such Relevant Usage Period and (b) as to any Designated Intellectual Property, the applicable field of use specified on Schedule C. In the event of a dispute between the parties as to whether a particular use by a Licensee of Licensed Intellectual Property licensed to such Licensee is within the applicable Field of Use, the Licensee will have the burden of proof by a preponderance of the evidence. For the avoidance of doubt, the general manner and scope of such use shall include broad uses of the Intellectual Property, such as use in customer proposals.",
"“Governmental Authority” means any United States or non-United States federal, state, local, territorial, tribal or international court, government, department, commission, board, bureau, agency, official or other legislative, judicial, regulatory, administrative or governmental authority. “Intellectual Property” or “IP” means all of the following intellectual property rights, whether arising under the laws of the United States or the laws of any other jurisdiction: (a) patents, (b) copyrights, (c) trade secrets, know-how and other confidential and proprietary information, and (d) all registrations and applications for registration of any of the foregoing, but excluding (e) trademarks, service marks, domain names and similar rights. “Licensed Intellectual Property” means (a) all Intellectual Property owned by a party or any of its Affiliates as of the Distribution that, in the Relevant Usage Period prior to or at the time of the Distribution, has been or is being used by the other party or any of its Affiliates in the ordinary course of such other party’s or any of its Affiliate’s businesses, excluding any such Intellectual Property that prior to the Distribution, has been or is being used by the other party or any of the other party’s Affiliates solely in connection with such other party or such other party’s Affiliate performing as a party to an intercompany teaming agreement, intercompany work order or similar intercompany agreement with such party or any of its Affiliates and (b) the Designated Intellectual Property.",
"“Licensee” means, collectively, a party and its Affiliates in their capacity as licensees to which a license of Licensed Intellectual Property is granted by Licensor hereunder. “Licensor” means, collectively, a party and its Affiliates in their capacity as licensors of Licensed Intellectual Property that is licensed to Licensee hereunder. “Line of Business” means a set of one or more highly related products which service a particular business need. “Person” means an individual, corporation, partnership, limited liability company, limited liability partnership, syndicate, person, trust, association, organization or 3 -------------------------------------------------------------------------------- other entity, including any Governmental Authority, and including any successor, by merger or otherwise, of any of the foregoing.",
"“Relevant Usage Period” means the 12-month period prior to the Distribution. “Software” means computer software and databases, together with, as applicable, object code, source code, firmware and embedded versions thereof and documentation related thereto. “Subsidiary” of any Person means any corporation or other organization, whether incorporated or unincorporated, of which at least a majority of the securities or interests having by the terms thereof ordinary voting power to elect at least a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries; provided, however, that no Person that is not directly or indirectly wholly owned by any other Person shall be a Subsidiary of such other Person unless such other Person controls, or has the right, power or ability to control, that Person.",
"ARTICLE II GRANT OF LICENSES Section 2.1 Grant of Licenses. (a) Subject to the terms and conditions of this License Agreement, each Licensor hereby grants to the respective Licensee a non-exclusive, worldwide, fully paid, non-transferable (except as expressly provided in Article VII), irrevocable and perpetual license, solely within such Licensee’s Field of Use, to: (i) make (including the right to use any apparatus and practice any method in making), have made, make improvements on, use, import, offer for sale, lease, sell and/or otherwise transfer products and provide services under the patents included in such Licensor’s Licensed Intellectual Property (including any patents that hereafter issue on patent applications that are pending as of the Distribution); (ii) use, reproduce, distribute, prepare derivative works of, and publicly perform and publicly display any original works of authorship (or any derivative works based thereon) that are the subject of any of the copyrights included in such Licensor’s Licensed Intellectual Property; and (iii) use and exploit any know-how or other trade secrets or proprietary information included in such Licensor’s Licensed Intellectual Property, subject to compliance with the confidentiality obligations set forth in Article IV.",
"(b) Each party shall cause its Affiliates to grant the licenses contemplated to be granted by such Affiliates hereunder and to perform all of their 4 -------------------------------------------------------------------------------- obligations imposed hereunder, including the confidentiality obligations set forth in Article IV. (c) Each Licensee will, and will cause its Affiliates to, comply with the Field of Use and all other limitations or restrictions imposed under this License Agreement with respect to its and its Affiliates’ use of the Licensed Intellectual Property licensed to it and its Affiliates hereunder.",
"Section 2.2 Have Made Rights. The licenses granted in Sections 2.1(a)(i) by the applicable Licensor to the applicable Licensee to have products made by a third party or to import products: (a) apply only when the specifications for such Licensee’s products were created by or specifically for Licensee (either solely or jointly with one or more third parties), (b) extend only to those claims of Licensor’s licensed patents, the infringement of which would be necessitated by compliance with such specifications and (c) do not apply to any methods used, or any products in substantially the same form manufactured or marketed, by such third party, prior to Licensee’s furnishing of such specifications. Section 2.3 Right to Sublicense. Except as otherwise provided on Schedule C with respect to the Designated Intellectual Property, each Licensee shall have the right to sublicense freely the rights and licenses granted by the applicable Licensor pursuant to Section 2.1(a) to Licensee’s contractors, sub-contractors and agents for use solely in connection with the operation of Licensee’s business and within the Field of Use. Each Licensee shall ensure that all such permitted sublicensees shall abide by the terms and conditions of this License Agreement, to the extent applicable, and all such grants of sublicenses shall be made in writing and executed by all parties thereto.",
"Section 2.4 Licensed Software. The parties agree and acknowledge that any Software that is licensed under this License Agreement shall be licensed only in the form in which it is being used by the Licensee in the ordinary course of its business in the Relevant Usage Period prior to and including the Distribution; provided that, in the case of any Software included in the Designated Intellectual Property, such Software will be licensed in the form specified on Schedule C. Accordingly, in the case of Software that is not included in the Designated Intellectual Property, if a Licensee is using any source code of any Software licensed to it hereunder by the Licensor in the ordinary course of its business in the Relevant Usage Period prior to and including the Distribution, such Licensee will be permitted to retain such source code and the licenses granted under Section 2.1(a) to such Licensee shall extend to such source code.",
"Notwithstanding the foregoing, for the Software identified on Schedule B hereto that is undergoing improvement or as to which a derivative work is being prepared (“Improved Software”), the parties agree and acknowledge that any such Improved Software that is licensed under this License Agreement shall be licensed in such form existing immediately after successful completion of testing of the improvement and/or derivative works that is in process of being made or prepared as of the Distribution, even if such form comes into existence after the Distribution. The respective Licensor hereby agrees to deliver such Improved Software in the licensed form, as soon as practicable after successful completion of testing of the improvement and/or derivative work. Thereafter, the Licensor shall have no further obligation to deliver any improvements or derivative works of such Improved 5 -------------------------------------------------------------------------------- Software to each Licensee under this License Agreement. Accordingly, for such Improved Software that has been used by the Licensee in source code form in the ordinary course of its business in the Relevant Usage Period prior to and including the Distribution, such Licensee will be permitted to obtain such source code in the form existing immediately after such successful completion of testing and the licenses granted under Section 2.1(a) to such Licensee shall extend to such source code.",
"For the avoidance of doubt, this License Agreement provides for the licensing of Intellectual Property that is owned by a party or an Affiliate thereof and nothing in this License Agreement provides for any sublicensing of Software or any other Intellectual Property that is owned by a third party or any assignment of any license of Software or any other Intellectual Property that is owned by a third party. Section 2.5 Delivery of Embodiments of IP. To the extent that a Licensee is not in possession as of the Distribution of any embodiment of Licensed Intellectual Property licensed to such Licensee hereunder, the respective Licensor hereby agrees to deliver to such Licensee upon request, as soon as practicable after the Distribution, copies of all such embodiments of such Licensed Intellectual Property. Thereafter, each Licensor shall have no further obligation to deliver any Licensed Intellectual Property, or copies thereof, to each Licensee under this License Agreement.",
"Each Licensor shall have no further access to, or any obligation to maintain or service, any electronic copies of such Licensed Intellectual Property that is delivered to the Licensee. Section 2.6 Jointly Developed Intellectual Property. If either party or any of its Affiliates materially contributed to the development of any Intellectual Property that is owned by the other party or any of the other party’s Affiliates as of the Distribution, and such Intellectual Property does not constitute Licensed Intellectual Property that is licensed to such party and such party’s Affiliates hereunder, the other party agrees that, if such party requests that it and its Affiliates be granted a license to use such Intellectual Property within the scope of their Lines of Business existing as of the Distribution, the other party will consider in good faith granting such requested license. Section 2.7 Use of Intellectual Property in Connection with Certain Intercompany Arrangements.",
"Any Intellectual Property that, at the time of the Distribution, (a) is owned by any member of the New NGC Group (as defined in the Separation Agreement), but is in the possession of, or is being used by, a member of the HII Group (as defined in the Separation Agreement) in connection with such member of the HII Group performing as a party to an intercompany teaming agreement, intercompany work order or similar intercompany agreement with a member of the New NGC Group, shall be licensed by such member of the New NGC Group to such member of the HII Group pursuant to the terms of any intellectual property license granted to such member of the HII Group in the applicable intercompany agreement or, if the applicable intercompany agreement does not set forth the terms of such intellectual property license, then pursuant to the terms of an intellectual property license that such member of the New NGC Group and such member of the HII Group shall negotiate in good faith promptly after the Distribution, or (b) is owned by any member of the HII Group, but is in the possession of, or is being used by, a member of the New NGC Group in connection with such member of the New NGC Group performing as a party to an intercompany teaming agreement, 6 -------------------------------------------------------------------------------- intercompany work order or similar intercompany agreement with a member of the HII Group, shall be licensed by such member of the HII Group to such member of the New NGC Group pursuant to the terms of any intellectual property license granted to such member of the New NGC Group in the applicable intercompany agreement or, if the applicable intercompany agreement does not set forth the terms of such intellectual property license, then pursuant to the terms of an intellectual property license that such member of the HII Group and such member of the New NGC Group shall negotiate in good faith promptly after the Distribution.",
"Section 2.8 License to Use Background Intellectual Property. (a) “Background Intellectual Property” means, with respect to an Intellectual Property asset owned by one party or any of its Affiliates (“Foreground Intellectual Property”), Intellectual Property that was owned by the other party or any of the other party’s Affiliates prior to the creation or development of such Foreground Intellectual Property, and that is essential to the effective use or practice of such Foreground Intellectual Property. (b) “Background IP Owner” means the party or any of its Affiliates that owns the Background Intellectual Property. (c) “Foreground IP Owner” means the party or its Affiliates that owns or has been licensed the Foreground Intellectual Property. (d) The Background IP Owner hereby grants to the Foreground IP Owner a non-exclusive, worldwide, fully paid, irrevocable and perpetual license to use or practice and have had practiced such Background Intellectual Property of the Background IP Owner that is essential to the effective use or practice of the Foreground Intellectual Property.",
"(e) The licenses granted in Section 2.8(d) shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Notwithstanding any other provisions in this License Agreement, the Foreground IP Owner shall not assign (in whole or in part) or sublicense any licensed Background Intellectual Property to any known competitor of the Background IP Owner in the technical field of such Background Intellectual Property. (f) As a further limitation on the provisions of Section 4.2(a), in the case of licensed Background Intellectual Property, in maintaining the confidentiality of Proprietary Information of the Disclosing Party related to such Background Intellectual Property, the Foreground IP Owner shall not disclose or give access to any such Proprietary Information to any known competitor of the Background IP Owner in the technical field of such Background Intellectual Property. 7 -------------------------------------------------------------------------------- ARTICLE III OWNERSHIP Section 3.1 Ownership. Each Licensee acknowledges that, as between the parties, each Licensor owns all right, title and interest in and to its Licensed Intellectual Property. Each Licensee agrees that it shall not, directly or indirectly, challenge the validity, enforceability or ownership of the respective Licensor’s Licensed Intellectual Property.",
"Section 3.2 Ownership of Improvements and Derivative Works. Each party or its applicable Affiliate will own exclusively all improvements and derivative works created or developed by such party or its Affiliate that are derived from or based on any Licensed Intellectual Property licensed from the other party hereunder, subject to the other party’s retained ownership of the Licensed Intellectual Property on which such improvements and derivative works are based or from which they are derived. Other than for Improved Software as provided in Section 2.4, neither party (nor any Affiliate thereof) shall have any obligation to disclose or license any such improvements or derivative works to the other party. Section 3.3 No Other License. Except as expressly provided in this License Agreement, nothing herein shall be construed as granting to a party any license or other rights under any other Intellectual Property rights of the other party whether by implication or estoppel.",
"Nothing herein shall grant either party, in selling or promoting the sale of products or services, the right to directly or indirectly use or refer to the trademarks or trademark type rights of the other party or trademarks or other marks and names similar thereto. Section 3.4 Prosecution and Maintenance. Each Licensor shall have the sole and exclusive right, but not the obligation, at its sole cost and expense: (a) to file, prosecute, obtain and maintain, throughout the world, any patents, patent applications and other registrations or applications for registration included in the Licensed Intellectual Property owned by such Licensor, and (b) to conduct or participate, throughout the world, in any interference, reexaminaton, opposition, cancellation, nullification and other interpartes, ex partes or other types of proceedings before the U.S. Patent & Trademark Office and similar authorities, registries or agencies, and all appeals thereof (regardless of forum) involving or relating to such Licensed Intellectual Property.",
"The manner in which any such filing, prosecution, maintenance or any other action is conducted by such Licensor under this Section 3.4 shall be in such Licensor’s sole control and discretion. ARTICLE IV CONFIDENTIALITY Section 4.1 Proprietary Information. For the purposes hereof, “Proprietary Information” of a party (the “Disclosing Party”) means all business sensitive and/or proprietary information of the Disclosing Party disclosed to, or in the possession of, the other party (the “Receiving Party”), whether disclosed orally, verbally, visually, electronically, in tangible form or otherwise, and regardless of whether marked, denoted or 8 -------------------------------------------------------------------------------- otherwise indicated as “business sensitive,” “proprietary,” “private” or words of similar import. Proprietary Information of Licensor shall include trade secrets and other business sensitive and proprietary information included in the Licensed Intellectual Property, as well as any business and/or sensitive information that has been made available by a Party or any of its Affiliates to the other party or any of the other party’s Affiliates in connection with such other party or such other party’s Affiliate performing as a party to an intercompany teaming agreement, intercompany work order or similar intercompany agreement.",
"Section 4.2 Confidentiality. (a) In maintaining the confidentiality of Proprietary Information of the Disclosing Party, the Receiving Party shall exercise the same degree of care that it exercises with its own Proprietary Information, but in no event less than a reasonable degree of care. Without limiting any of the foregoing, the Receiving Party shall not disclose or give access to any such Proprietary Information to any third party, other than its personnel, sublicensees or customers pursuant to contract requirements, without the prior written consent of the Disclosing Party. The Receiving Party shall restrict access to such Proprietary Information to those of its personnel and sublicensees having a strict need for access thereto, and shall use commercially reasonable efforts to ensure that each of its personnel and sublicensees holds in confidence the Proprietary Information of the Disclosing Party in accordance with the terms and conditions hereof.",
"The Receiving Party shall, and shall cause its personnel and sublicensees to, make no use, directly or indirectly, of any Proprietary Information of the Disclosing Party for any purpose other than as authorized hereunder. The Receiving Party shall not copy or reproduce the Proprietary Information or any portion thereof, or remove any tangible copies of the Proprietary Information or any portion thereof from the Receiving Party’s facilities except as reasonably required in connection with exercising the rights licensed hereunder or as expressly permitted by the Disclosing Party.",
"(b) As a further limitation on the provisions of Section 4.2(a), in the case of assets listed as Designated Intellectual Property, if Schedule C includes sublicensing limitations for an asset and such sublicensing limitations prohibit sublicensing of such asset to known competitors except under strict non-disclosure agreement, then in maintaining the confidentiality of Proprietary Information of the Disclosing Party related to such asset, the Receiving Party shall ensure that the strict non-disclosure agreement meets the non-disclosure requirements set forth at the end of Schedule C. (c) The confidentiality obligations contained in Section 4.2(a) and (b) and Section 2.8(f) shall not apply to any information that contemporaneous written records of the Receiving Party demonstrate (a) was lawfully disclosed to the Receiving Party without restriction by an unrelated third party who does not have any obligations of confidentiality to the Disclosing Party, (b) the Receiving Party independently developed such information prior to the Distribution without any use of or reference to the Proprietary Information of the Disclosing Party or (c) is or becomes part of the public domain through no fault of the Receiving Party, it being understood that if only a portion of any such information is or becomes part of the public domain (including by way of issued patents or 9 -------------------------------------------------------------------------------- published patent applications), the confidentiality obligations of the Receiving Party with respect to the rest of the Proprietary Information shall remain intact without modification.",
"Section 4.3 Limited Exception. The obligation of confidentiality and non-disclosure contained in this License Agreement shall not apply to the extent that the Receiving Party is required to disclose any Proprietary Information of the Disclosing Party by a valid subpoena, order or regulation of a governmental agency or a court of competent jurisdiction having jurisdiction over the Receiving Party; provided, however, that the Receiving Party shall not intentionally make any such disclosure without (a) first notifying the Disclosing Party and allowing the Disclosing Party a reasonable opportunity to prevent or limit such disclosure (either by challenging or quashing any such subpoena, order or regulation or obtaining injunctive relief from, or a protective order with respect to, the obligation to make such disclosure), and (b) reasonably cooperating, at Disclosing Party’s expense, with the Disclosing Party’s efforts to prevent or limit such disclosure. Section 4.4 Unauthorized Disclosure. The Receiving Party acknowledges and confirms that the Proprietary Information of the Disclosing Party constitutes proprietary information and trade secrets valuable to the Disclosing Party, and that the unauthorized use, loss or outside disclosure of such Proprietary Information shall cause irreparable injury to the Disclosing Party. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of such Proprietary Information, and will cooperate with the Disclosing Party in every reasonable way to help regain possession of such Proprietary Information and to prevent its further unauthorized use.",
"The Receiving Party acknowledges and agrees that monetary damages may not be a sufficient remedy for unauthorized disclosure of Proprietary Information of the Disclosing Party and that the Disclosing Party shall be entitled, without waiving other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. The prevailing party shall be entitled to recover reasonable attorney’s fees incurred by it in connection with any action commenced by the Disclosing Party against the Receiving Party arising out of or relating to any alleged disclosure of Proprietary Information of the Disclosing Party by the Receiving Party in breach of this License Agreement. ARTICLE V REPRESENTATIONS; DISCLAIMER Section 5.1 Mutual Representations. Each party represents and warrants that (a) it has the power and authority to enter into this License Agreement and has taken all necessary corporate action to authorize its performance under this License Agreement; (b) this License Agreement, when executed and delivered, will constitute a legal, valid and binding obligation of each such party, enforceable in accordance with its terms; (c) no consent or authorization of, filing with, or notice to any governmental authority is required in connection with its performance under this License Agreement; and (d) its entering into this License Agreement or performance by it hereunder will not violate any federal, state or local licensing or other statute, rule or regulation, or any contractual obligation of such party.",
"Each party agrees to comply with all applicable Laws, rules and regulations in connection with its activities under this License Agreement. 10 -------------------------------------------------------------------------------- Section 5.2 Disclaimer. Except as expressly set forth in this License Agreement, each of the licenses of Licensed Intellectual Property granted by a Licensor hereunder are made “as-is” and “where-is.” Each Licensor hereby disclaims all representations or warranties of any kind, either express or implied, including any warranty of merchantability, fitness for a particular purpose, non-infringement or any other matter with respect to any Licensed Intellectual Property licensed by such Licensor, whether used alone or combined with other products or services. Section 5.3 Limitations on Liability. Except for any willful breach of Articles III and IV, under no circumstances shall either party be liable to the other party for indirect, incidental, consequential, punitive or exemplary damages (even if such other party has been advised of the possibility of such damages) arising from a claim for breach of any provision of this License Agreement.",
"Notwithstanding the foregoing, the provisions of this Section 5.3 shall not limit an Indemnifying Party’s indemnification obligations with respect to any Liability that any Licensor Indemnitee may have to any third party that is not an Affiliate of any party. Section 5.4 Indemnification. Following the Distribution, each Licensee (an “Indemnifying Party”) shall indemnify, defend and hold harmless the respective Licensor and such Licensor’s Affiliates and its and their respective current, former and future directors, officers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Licensor Indemnitees”), from and against any and all (a) Third Party Claims (as defined in the Separation Agreement) asserted or brought against any of the Licensor Indemnitees based on or relating to the exercise by the Indemnifying Party or any of its Affiliates of the license to use the Licensed Intellectual Property that is granted to such Licensee or any such Affiliates hereunder or otherwise relating to the Indemnifying Party’s or any of its Affiliates’ use of the Licensed Intellectual Property licensed hereunder and (b) all Liabilities relating to, arising out of or resulting from any such Third Party Claims. The notice and other indemnification procedures set forth in Sections 5.4, 5.5 (other than Section 5.5(b)), 5.6, 5.7 and 5.8 of the Separation Agreement that apply to indemnification claims arising under Article V of the Separation Agreement are hereby incorporated by reference and shall apply to any indemnification claims arising under this Section 5.4.",
"ARTICLE VI TERM Section 6.1 Term. The rights granted to each party under this License Agreement shall be irrevocable and perpetual and shall not be terminable by either party, and such rights shall continue in full force and effect notwithstanding any breach by the other party hereunder; provided that, if any Licensee breaches any limitations or restrictions imposed on it in Sections 2.1, 2.2, 2.3 or 2.8 with respect to its use of any Intellectual Property licensed to it hereunder, or materially breaches any confidentiality obligations set forth in Article IV with respect to its use of any Intellectual Property licensed to it hereunder, then, effective upon 30 days’ prior written notice by the Licensor to the Licensee, such Intellectual Property thereafter shall be excluded from the Intellectual Property licensed to the Licensee hereunder and, upon the expiration of such 30-day 11 -------------------------------------------------------------------------------- period, Licensee shall cease any and all use of such Intellectual Property unless, prior to expiration of such 30-day period, Licensee has fully cured such breach.",
"ARTICLE VII TRANSFERABILITY Section 7.1 Assignment. This License Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign this License Agreement without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign or otherwise transfer this License Agreement or its rights hereunder, in whole or in part, to any of its Affiliates or to a third party in connection with the sale of all or substantially all of the assets of such party or any of its Affiliates to which this License Agreement pertains or in connection with a merger, consolidation, corporate reorganization or any change of control of such party or any of its Affiliates or a sale or divestiture of any of the product lines, operating units or business divisions of such party or any of its Affiliates; provided that (a) the assigning party shall provide written notice to the other party of any such assignment, and (b) such assignee shall agree to assume all applicable obligations of the assigning party hereunder, and to be subject to the terms of this License Agreement.",
"For the avoidance of doubt, any permitted assignee of any license granted under Article II of this License Agreement is subject to the Field of Use and all other limitations or restrictions imposed under this License Agreement with respect to such license, including in particular the Field of Use limitation that limits use of Licensed Intellectual Property to use by and in the Line of Business where and as the Licensed Intellectual Property was used during the Relevant Usage Period prior to the Distribution; provided further that, in the case of Designated Intellectual Property, the applicable Field of Use limitation and the applicable Sublicensing Limitations will continue to be as specified on Schedule C. ARTICLE VIII GENERAL PROVISIONS Section 8.1 Amendment and Modification.",
"This License Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto, signed on behalf of each party. Section 8.2 Waiver. No failure or delay of any party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder. Any agreement on the part of any party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such party. 12 -------------------------------------------------------------------------------- Section 8.3 Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, or if by facsimile, upon written confirmation of receipt by facsimile, e-mail or otherwise, (b) on the first Business Day following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier or (c) on the earlier of confirmed receipt or the fifth Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid.",
"All notices hereunder shall be delivered to the addresses set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice: (i) if to NGSC prior to the date on which New NGC relocates its corporate headquarters, to: c/o Northrop Grumman Corporation 1840 Century Park East Los Angeles, CA 90067-2199 Attention: General Counsel Facsimile: (310) 556-4910 (ii) if to NGSC after the date on which New NGC relocates its corporate headquarters, to: c/o Northrop Grumman Corporation 2980 Fairview Park Drive Falls Church, VA 22042 Attention: General Counsel Facsimile: (703) 875-1852 (iii) if to NGSB, to: c/o Huntington Ingalls Industries, Inc. 4101 Washington Avenue Newport News, VA 23607 Attention: General Counsel Facsimile: (757) 688-1408 Section 8.4 Interpretation. When a reference is made in this License Agreement to a Section, Article or Exhibit such reference shall be to a Section, Article or Exhibit of this License Agreement unless otherwise indicated.",
"The table of contents and headings contained in this License Agreement or in any Exhibit are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of this License Agreement. All words used in this License Agreement will be construed to be of such gender or number as the circumstances require. Any capitalized terms used in any Exhibit but not otherwise defined therein shall have the meaning as defined in this License Agreement. All Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this License Agreement as if set forth herein. The word “including” and words of similar import when used in this License Agreement shall mean “including, without limitation,” unless otherwise specified. Where either party’s consent is required 13 -------------------------------------------------------------------------------- hereunder, except as otherwise specified herein, such party’s consent may be granted or withheld in such party’s sole and absolute discretion. The word “day” when used in this License Agreement shall mean “calendar day,” unless otherwise specified.",
"Section 8.5 Entire Agreement. This License Agreement, the Separation Agreement and the Exhibits, Schedules and Appendices hereto and thereto constitute the entire agreement, and supersedes all prior written agreements, arrangements, communications and understandings and all prior and contemporaneous oral agreements, arrangements, communications and understandings among the parties with respect to the subject matter hereof. This License Agreement shall not be deemed to contain or imply any restriction, covenant, representation, warranty, agreement or undertaking of any party with respect to the transactions contemplated hereby other than those expressly set forth herein or in any document required to be delivered hereunder. Notwithstanding any oral agreement or course of action of the parties or their representatives to the contrary, no party to this License Agreement shall be under any legal obligation to enter into or complete the transactions contemplated hereby unless and until this License Agreement shall have been executed and delivered by each of the parties.",
"Section 8.6 No Third-Party Beneficiaries. Nothing in this License Agreement, express or implied, is intended to or shall confer upon any Person other than the parties and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this License Agreement. Section 8.7 Governing Law. This License Agreement and all disputes or controversies arising out of or relating to this License Agreement or the transactions contemplated hereby shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to the laws of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of New York (other than Section 5-1401 of the New York General Obligations Law). Section 8.8 Submission to Jurisdiction. Each of the parties irrevocably agrees that any legal action or proceeding arising out of or relating to this License Agreement brought by any other party or its successors or assigns shall be brought and determined in any federal court sitting in the Borough of Manhattan in the City of New York (or, if such court lacks subject matter jurisdiction, in any appropriate New York State or federal court), and each of the parties hereby irrevocably submits to the exclusive jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such action or proceeding arising out of or relating to this License Agreement and the transactions contemplated hereby.",
"Each of the parties agrees not to commence any action, suit or proceeding relating thereto except in the courts described above in New York, other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in New York as described herein. Each of the parties further agrees that notice as provided in Section 8.3 shall constitute sufficient service of process and the parties further waive any argument that such service is insufficient. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action or proceeding arising out of or relating to this License Agreement or the 14 -------------------------------------------------------------------------------- transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts in New York as described herein, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this License Agreement, or the subject matter hereof, may not be enforced in or by such courts. Section 8.9 Enforcement.",
"The parties agree that irreparable damage would occur in the event that any of the provisions of this License Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, each of the parties shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this License Agreement and to enforce specifically the terms and provisions of this License Agreement in any federal court sitting in the Borough of Manhattan in the City of New York (or, if such court lacks subject matter jurisdiction, in any appropriate New York State or federal court), this being in addition to any other remedy to which such party is entitled at law or in equity. Each of the parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any law to post security as a prerequisite to obtaining equitable relief. Section 8.10 Severability. Whenever possible, each provision or portion of any provision of this License Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision or portion of any provision of this License Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this License Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.",
"Section 8.11 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LICENSE AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LICENSE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Section 8.12 Counterparts. This License Agreement may be executed in one or more counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.",
"Section 8.13 Facsimile Signature. This License Agreement may be executed by facsimile signature and a facsimile signature shall constitute an original for all purposes. 15 -------------------------------------------------------------------------------- Section 8.14 Effect if Distribution Does Not Occur. If the Distribution does not occur, then this License Agreement shall automatically be terminated and all actions and events that are, under this License Agreement, to be taken or occur effective as of the Distribution, or otherwise in connection with the Distribution shall not be taken or occur except to the extent specifically agreed by the parties. [The remainder of this page is intentionally left blank.] 16 -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the parties have caused this License Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized. NORTHROP GRUMMAN SYSTEMS CORPORATION By: /s/ Mark Rabinowitz Name: Mark Rabinowitz Title: President and Treasurer NORTHROP GRUMMAN SHIPBUILDING, INC. By: /s/ C. Michael Petters Name: C. Michael Petters Title: President and Chief Executive Officer [Signature Page to Intellectual Property License Agreement]"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Motion denied, but appellant must be ready at September session. | 01-06-2022 | [
"Motion denied, but appellant must be ready at September session."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5181020/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:20-cr-00330-AJN Document 97-24 Filed 12/14/20 Page 1 of 2
Exhibit X Case 1:20-cr-00330-AJN Document 97-24 Filed 12/14/20 Page 2 of 2 | 2020-12-14 | [
"Case 1:20-cr-00330-AJN Document 97-24 Filed 12/14/20 Page 1 of 2 Exhibit X Case 1:20-cr-00330-AJN Document 97-24 Filed 12/14/20 Page 2 of 2"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/154513342/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
EXHIBIT 10.37
JOINDER TO LOAN AND SECURITY AGREEMENT
Reference is hereby made to that certain Loan and Security Agreement, dated October 26, 2016, by and among The PrivateBank and Trust Company (“Lender”), BROADWIND ENERGY, INC., a Delaware corporation (“Parent”), BRAD FOOTE GEAR WORKS, INC., an Illinois corporation (“Brad Foote”), BROADWIND TOWERS, INC., a Wisconsin corporation (“Towers”), and BROADWIND SERVICES, LLC, a Delaware limited liability company (“Services,” and collectively with Parent, Brad Foote and Towers, “Borrowers,” and each, a “Borrower”), as the same may be amended or restated from time to time (the “Loan Agreement”).
By execution of this signature page, the undersigned hereby agrees to become a party to, be bound by the obligations of and receive the benefits of the Loan Agreement as a Borrower thereunder. All references to “Borrowers” in the Loan Agreement will be deemed to include the undersigned.
[Signature page follows.]
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the undersigned has executed this Joinder to Loan and Security Agreement as February 10, 2017.
RED WOLF COMPANY, LLC
By: /s/ David W. Fell
Name: David W. Fell
Title: Secretary
Acknowledged and agreed:
THE PRIVATEBANK AND TRUST COMPANY
By: /s/ Tom Hunt
Name: Tom Hunt
Title: Managing Director
-------------------------------------------------------------------------------- | [
"EXHIBIT 10.37 JOINDER TO LOAN AND SECURITY AGREEMENT Reference is hereby made to that certain Loan and Security Agreement, dated October 26, 2016, by and among The PrivateBank and Trust Company (“Lender”), BROADWIND ENERGY, INC., a Delaware corporation (“Parent”), BRAD FOOTE GEAR WORKS, INC., an Illinois corporation (“Brad Foote”), BROADWIND TOWERS, INC., a Wisconsin corporation (“Towers”), and BROADWIND SERVICES, LLC, a Delaware limited liability company (“Services,” and collectively with Parent, Brad Foote and Towers, “Borrowers,” and each, a “Borrower”), as the same may be amended or restated from time to time (the “Loan Agreement”). By execution of this signature page, the undersigned hereby agrees to become a party to, be bound by the obligations of and receive the benefits of the Loan Agreement as a Borrower thereunder. All references to “Borrowers” in the Loan Agreement will be deemed to include the undersigned. [Signature page follows.] -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the undersigned has executed this Joinder to Loan and Security Agreement as February 10, 2017. RED WOLF COMPANY, LLC By: /s/ David W. Fell Name: David W. Fell Title: Secretary Acknowledged and agreed: THE PRIVATEBANK AND TRUST COMPANY By: /s/ Tom Hunt Name: Tom Hunt Title: Managing Director --------------------------------------------------------------------------------"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Emery, C. J. This is an action of debt to recover the State, county and town tax of 1905 alleged to have been duly assessed against the defendant as an inhabitant of the plaintiff town. The presiding Justice excluded some evidence offered by the defense and admitted some evidence against the defendant’s objection. After the evidence was all in the presiding Justice directed a verdict for the plaintiff. To this ruling and some rulings on the evidence the defendant excepted. This not being a case where the defendant’s person or property is levied upon by direct warrant from the assessors, but being, instead, an action for the tax, the action will not be defeated by any mere irregularities in the election of assessors or collector, or in the assessment itself, but only by such omissions or defect's as go to the jurisdiction of the assessors, or deprive the defendant of some substantial right, or by some omission of an essential prerequisite to the bringing the action. The defendant argued the following points only. 1. The record of the March 1905 town meeting of Greenville, as to choice of collector of taxes, is as follows : "Ninth; Voted that the clerk be instructed to cast a vote for Aubrey L. Fletcher for Tax Collector in the town of Greenville for the ensuing year.” It further appears that Aubrey L. Fletcher was duly sworn as collector of taxes, and gave bonds as such and entered upon the duties of that office. The assessment of that year and a collection warrant therefor were issued to him by the assessors. The defendant contends that Mr. Fletcher was not chosen "by ballot” and therefore was not a legal collector. But, if not regularly elected, he was the choice of the town and was de facto col*446lector of taxes. The irregularity in his election, if any, does not affect the validity of the assessment of the tax, nor the obligation of the defendant to pay it. Even if he could for that reason lawfully refuse to pay it to Mr. Fletcher and resist his efforts to collect it by levy, he cannot for that reason avoid payment entirely, nor avoid judgment in this suit, which is by the town itself. 2. A necessary prerequisite to the maintenance of this action by the town, is that it should have been directed in writing by the selectmen of the town, R. S., ch. 10, sec. 65. Aubrey L. Fletcher, the collector of taxes, (de facto at least), testified that before the action was brought he prepared a writing directed to himself as collector of taxes directing him to begin the action, and that it was signed by the three assessors and came so signed into his possession. The writing itself had been' destroyed in a fire that consumed Mr. Fletcher’s office. He did not testify that the writing was signed by the selectmen, but he did testify that it was signed by Hunt, Metcalf and Young who were the selectmen at the time as well as the assessors. The defendant contends that such a writing was not in compliance with the statute since it does not appear that, it was signed by Hunt, Metcalf and Young as selectmen. If necessary that they should have written the word "selectmen” after their names, we think it may be presumed that they did so in the absence of evidence to the contrary under the maxim, "Omnia praesumuntur rite et solenniter esse acta donee probetur in contrarium. 3. The defendant offered to show that the assessors knowingly and intentionally omitted to assess one resident of the town for money at interest though he had $20,000 of such property liable to assessment. The presiding Justice ruled that, even if such were the fact, it would not be a defense to this action. The ruling was right. The defendant must resort to some other proceeding to right that wrong. He cannot because of it avoid the payment of the tax assessed upon him. R. S., ch. 10, sec. 31. As said by the Massachusetts court per Shaw, C. J., in Watson v. Princeton, 4 Metc. 601, "It has often been held that the omission to tax any particular individual who may be liable does not render the whole tax *447illegal and void; and it would be scarcely possible to assess a valid tax if it were otherwise.” The defendant therefore, to quote further from the opinion in that case, "has no ground to contend that the tax was void, that he was not liable to be assessed, or that he was assessed for more property than he was liable for. But the gravamen of his complaint is that other persons were not taxed enough, by means of which his rate was higher than it should have been. This cannot be inquired into in an action against the town for money had and received.” (to recover back the tax.) No more can it be inquired into in an action by the town to recover the tax. Dover v. Maine Water Co., 90 Maine, 180. No other rulings were argued, and we find no error in them.
Exceptions overruled. | 09-24-2021 | [
"Emery, C. J. This is an action of debt to recover the State, county and town tax of 1905 alleged to have been duly assessed against the defendant as an inhabitant of the plaintiff town. The presiding Justice excluded some evidence offered by the defense and admitted some evidence against the defendant’s objection. After the evidence was all in the presiding Justice directed a verdict for the plaintiff. To this ruling and some rulings on the evidence the defendant excepted. This not being a case where the defendant’s person or property is levied upon by direct warrant from the assessors, but being, instead, an action for the tax, the action will not be defeated by any mere irregularities in the election of assessors or collector, or in the assessment itself, but only by such omissions or defect's as go to the jurisdiction of the assessors, or deprive the defendant of some substantial right, or by some omission of an essential prerequisite to the bringing the action. The defendant argued the following points only.",
"1. The record of the March 1905 town meeting of Greenville, as to choice of collector of taxes, is as follows : \"Ninth; Voted that the clerk be instructed to cast a vote for Aubrey L. Fletcher for Tax Collector in the town of Greenville for the ensuing year.” It further appears that Aubrey L. Fletcher was duly sworn as collector of taxes, and gave bonds as such and entered upon the duties of that office. The assessment of that year and a collection warrant therefor were issued to him by the assessors.",
"The defendant contends that Mr. Fletcher was not chosen \"by ballot” and therefore was not a legal collector. But, if not regularly elected, he was the choice of the town and was de facto col*446lector of taxes. The irregularity in his election, if any, does not affect the validity of the assessment of the tax, nor the obligation of the defendant to pay it. Even if he could for that reason lawfully refuse to pay it to Mr. Fletcher and resist his efforts to collect it by levy, he cannot for that reason avoid payment entirely, nor avoid judgment in this suit, which is by the town itself.",
"2. A necessary prerequisite to the maintenance of this action by the town, is that it should have been directed in writing by the selectmen of the town, R. S., ch. 10, sec. 65. Aubrey L. Fletcher, the collector of taxes, (de facto at least), testified that before the action was brought he prepared a writing directed to himself as collector of taxes directing him to begin the action, and that it was signed by the three assessors and came so signed into his possession. The writing itself had been' destroyed in a fire that consumed Mr. Fletcher’s office. He did not testify that the writing was signed by the selectmen, but he did testify that it was signed by Hunt, Metcalf and Young who were the selectmen at the time as well as the assessors.",
"The defendant contends that such a writing was not in compliance with the statute since it does not appear that, it was signed by Hunt, Metcalf and Young as selectmen. If necessary that they should have written the word \"selectmen” after their names, we think it may be presumed that they did so in the absence of evidence to the contrary under the maxim, \"Omnia praesumuntur rite et solenniter esse acta donee probetur in contrarium. 3. The defendant offered to show that the assessors knowingly and intentionally omitted to assess one resident of the town for money at interest though he had $20,000 of such property liable to assessment. The presiding Justice ruled that, even if such were the fact, it would not be a defense to this action.",
"The ruling was right. The defendant must resort to some other proceeding to right that wrong. He cannot because of it avoid the payment of the tax assessed upon him. R. S., ch. 10, sec. 31. As said by the Massachusetts court per Shaw, C. J., in Watson v. Princeton, 4 Metc. 601, \"It has often been held that the omission to tax any particular individual who may be liable does not render the whole tax *447illegal and void; and it would be scarcely possible to assess a valid tax if it were otherwise.” The defendant therefore, to quote further from the opinion in that case, \"has no ground to contend that the tax was void, that he was not liable to be assessed, or that he was assessed for more property than he was liable for. But the gravamen of his complaint is that other persons were not taxed enough, by means of which his rate was higher than it should have been. This cannot be inquired into in an action against the town for money had and received.” (to recover back the tax.) No more can it be inquired into in an action by the town to recover the tax.",
"Dover v. Maine Water Co., 90 Maine, 180. No other rulings were argued, and we find no error in them. Exceptions overruled."
]
| https://www.courtlistener.com/api/rest/v3/opinions/4937235/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Berry, J. This is an appeal from an order by which a new trial appears to have been granted, upon the ground that the verdict is not justified by the evidence. For the reasons given in Hicks v. Stone, 13 Minn. 434, the opinion of a trial court upon a motion for a new trial upon this ground is entitled to great weight, and,- as remarked in that case, it is only when, upon a careful perusal of the testimony, and upon mature reflection, we feel satisfied that the preponderance of -the evidence is manifestly and palpably in favor of the verdict, that we should deem it our duty to reverse an order granting a new trial. In this case the verdict is manifestly against the weight of evidence, so much so that we can easily conceive how the -trial judge might well have concluded that there was no evidence in the case having a reasonable tendency to sustain the verdict. There is a little testimony, of a somewhat ambiguous character, which, by a person looking only at the return made to this court, might be understood to have a slight tendency to support the verdict; but the judge who tried the case had opportunities so much better than we possess for perceiving exactly what was meant by it, that we are not disposed to question his opinion that in fact it did not have the tendency spoken *105of. See Kansas Pacific Ry. Co. v. Kunkel, 17 Kansas, 145. We cannot say that the order was erroneous. In granting the new trial the court below gave the moving party costs. This was a matter within the court’s discretion, which there is no reason to suppose was abused. Laws 1867, •c. 82. (Gen. St. 1878, c. 67, § 9.) The respondent’s counsel desires us to consider and pass «upon the legal effect of certain orders for’ the payment of money, which were put in evidence in the case. No error of -■the court below, with respect to the orders, is assigned by the -■appellant. The new trial was not granted with reference to them, and the brief of the appellant contains no allusion to them. We think the question of the effect of the orders is not properly before us. Order affirmed. | 09-09-2022 | [
"Berry, J. This is an appeal from an order by which a new trial appears to have been granted, upon the ground that the verdict is not justified by the evidence. For the reasons given in Hicks v. Stone, 13 Minn. 434, the opinion of a trial court upon a motion for a new trial upon this ground is entitled to great weight, and,- as remarked in that case, it is only when, upon a careful perusal of the testimony, and upon mature reflection, we feel satisfied that the preponderance of -the evidence is manifestly and palpably in favor of the verdict, that we should deem it our duty to reverse an order granting a new trial. In this case the verdict is manifestly against the weight of evidence, so much so that we can easily conceive how the -trial judge might well have concluded that there was no evidence in the case having a reasonable tendency to sustain the verdict. There is a little testimony, of a somewhat ambiguous character, which, by a person looking only at the return made to this court, might be understood to have a slight tendency to support the verdict; but the judge who tried the case had opportunities so much better than we possess for perceiving exactly what was meant by it, that we are not disposed to question his opinion that in fact it did not have the tendency spoken *105of.",
"See Kansas Pacific Ry. Co. v. Kunkel, 17 Kansas, 145. We cannot say that the order was erroneous. In granting the new trial the court below gave the moving party costs. This was a matter within the court’s discretion, which there is no reason to suppose was abused. Laws 1867, •c. 82. (Gen. St. 1878, c. 67, § 9.) The respondent’s counsel desires us to consider and pass «upon the legal effect of certain orders for’ the payment of money, which were put in evidence in the case. No error of -■the court below, with respect to the orders, is assigned by the -■appellant. The new trial was not granted with reference to them, and the brief of the appellant contains no allusion to them. We think the question of the effect of the orders is not properly before us.",
"Order affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7963589/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0924701
Decision Date: 07/01/09 Archive Date: 07/14/09
DOCKET NO. 08-25 189 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for back disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Sara Fargnoli, Associate Counsel
INTRODUCTION
The Veteran had active service from December 1972 to November
1974.
This matter comes before the Board of Veterans' Appeals
(Board) from a July 2007 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida.
The Veteran provided testimony at a February 2009 hearing
before the undersigned. A transcript of the proceeding is
associated with the claims folder.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The Veteran contends that he currently suffers from a back
disability which he sustained during service. He
specifically contends that his back condition is related to
the numerous times he was required to bend and lift patients
while working in the emergency room in service.
A service treatment record (STR) dated in April 1974
indicated that the Veteran was treated for a sacroiliac
strain due to an injury he had while lifting patients in
service. The report of an August 1974 separation physical
examination indicated a normal spine examination with no
complaints or diagnosis related to a back condition.
Post-service VA outpatient treatment records dated in May
2001 through April 2007 demonstrate that the Veteran has
sought treatment for chronic low back pain.
The Veteran's Military Occupational Specialty (MOS) was as a
medical specialist. Regarding his April 1974 in-service back
injury, during a February 2009 hearing before the Board, the
Veteran reported that has been experiencing back pain since
that time. The Veteran further indicated that his in-service
injury was due to lifting patients. In addition, in
September 2007, the Veteran's brother submitted a statement
indicating that the Veteran was physically active prior to
service, however, subsequent to service, he has been
substantially less active and has continuously complained of
back pain.
The Veteran was afforded a VA examination in March 2005 after
which the examiner diagnosed the Veteran with degenerative
lumbar spine disease. While a specific diagnosis was
provided, the examiner did not comment on the relationship
between the diagnosis and the Veteran's in-service injury.
As such, the Board finds that further examination is
warranted.
Given the above, A VA examination should be conducted to
clarify the current nature and likely etiology of any chronic
back disability that the Veteran may have. 38 C.F.R.
§ 3.159(c)(4).
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be afforded an
appropriate VA examination in order to
determine the current nature and likely
etiology of any back conditions which may
be present. The claims folder should be
made available to the examiner for review.
Any indicated evaluations, studies, and
tests deemed to be necessary by the
examiner should be accomplished. The
examiner is requested to review all
pertinent records associated with the
claims file, particularly service
treatment records and the March 2005 VA
examination.
Based on the examination and review of the
record, the examiner should answer the
following question:
Is it at least as likely as not that any
currently demonstrated back disability is
the result of active service or any
incident therein or, in the alternative,
had its onset in service?
A rationale for all opinions expressed
should be provided.
2. Thereafter, readjudicate the Veteran's
claim. If the decision with respect to the
claims remains adverse to the Veteran, he
and his representative should be furnished
a supplemental statement of the case and
afforded a reasonable period of time within
which to respond thereto.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
ERIC S. LEBOFF
Acting 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) (2008). | 07-01-2009 | [
"Citation Nr: 0924701 Decision Date: 07/01/09 Archive Date: 07/14/09 DOCKET NO. 08-25 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sara Fargnoli, Associate Counsel INTRODUCTION The Veteran had active service from December 1972 to November 1974.",
"This matter comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran provided testimony at a February 2009 hearing before the undersigned. A transcript of the proceeding is associated with the claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he currently suffers from a back disability which he sustained during service. He specifically contends that his back condition is related to the numerous times he was required to bend and lift patients while working in the emergency room in service. A service treatment record (STR) dated in April 1974 indicated that the Veteran was treated for a sacroiliac strain due to an injury he had while lifting patients in service.",
"The report of an August 1974 separation physical examination indicated a normal spine examination with no complaints or diagnosis related to a back condition. Post-service VA outpatient treatment records dated in May 2001 through April 2007 demonstrate that the Veteran has sought treatment for chronic low back pain. The Veteran's Military Occupational Specialty (MOS) was as a medical specialist. Regarding his April 1974 in-service back injury, during a February 2009 hearing before the Board, the Veteran reported that has been experiencing back pain since that time. The Veteran further indicated that his in-service injury was due to lifting patients.",
"In addition, in September 2007, the Veteran's brother submitted a statement indicating that the Veteran was physically active prior to service, however, subsequent to service, he has been substantially less active and has continuously complained of back pain. The Veteran was afforded a VA examination in March 2005 after which the examiner diagnosed the Veteran with degenerative lumbar spine disease. While a specific diagnosis was provided, the examiner did not comment on the relationship between the diagnosis and the Veteran's in-service injury. As such, the Board finds that further examination is warranted. Given the above, A VA examination should be conducted to clarify the current nature and likely etiology of any chronic back disability that the Veteran may have.",
"38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an appropriate VA examination in order to determine the current nature and likely etiology of any back conditions which may be present. The claims folder should be made available to the examiner for review. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, particularly service treatment records and the March 2005 VA examination. Based on the examination and review of the record, the examiner should answer the following question: Is it at least as likely as not that any currently demonstrated back disability is the result of active service or any incident therein or, in the alternative, had its onset in service? A rationale for all opinions expressed should be provided. 2.",
"Thereafter, readjudicate the Veteran's claim. If the decision with respect to the claims remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).",
"_________________________________________________ ERIC S. LEBOFF Acting 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) (2008)."
]
| https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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 Priority Acknowledgment is made of applicant's claim for foreign priority based on an application filed in India on 3/10/2017. It is noted, however, that applicant has not filed a certified copy of the application as required by 37 CFR 1.55. Please note that a copy has been sent on 1/16/2018 in the parent application 15729060, however, due to an unknown error this copy can’t be viewed and verified.
Claim Objections Claim 1 is objected to because of the following informalities: the term “radia-tion” should be “radiation” and is examined as such. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(f): (f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph: An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
Claims 1-12 and 20 are rejected under 112, sixth paragraph: Claim element “temperature sensor” is a means (or step) plus function limitation that invokes 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for the claimed function. Note the specification continuously refers to the "temperature sensor” as the generic term indicated in the claim Applicant is required to: (a) Amend the claim so that the claim limitation will no longer be a means (or step) plus function limitation under 35 U.S.C. 112, sixth paragraph; or (b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the claimed function without introducing any new matter (35 U.S.C. 132(a)). If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant is required to clarify the record by either: (a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or (b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181. //END OF 112(6) REJECTION//
CLAIM INTERPRETATION
Claim limitation “compensation component” has/have been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because it uses/they use a generic placeholder “configured to” coupled with functional language “calculate a phase offset” without reciting sufficient structure to achieve the function. Furthermore, the generic placeholder is not preceded by a structural modifier. Since the claim limitation(s) invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, claim(s) 1 has/have been interpreted to cover the corresponding structure described in the specification that achieves the claimed function, and equivalents thereof. A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitation: the details of the processing system found in paragraph 47-51. If applicant wishes to provide further explanation or dispute the examiner’s interpretation of the corresponding structure, applicant must identify the corresponding structure with reference to the specification by page and line number, and to the drawing, if any, by reference characters in response to this Office action. If applicant does not intend to have the claim limitation(s) treated under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112 , sixth paragraph, applicant may amend the claim(s) so that it/they will clearly not invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, or present a sufficient showing that the claim recites/recite sufficient structure, material, or acts for performing the claimed function to preclude application of 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. For more information, see MPEP § 2173 et seq. and Supplementary Examination Guidelines for Determining Compliance With 35 U.S.C. 112 and for Treatment of Related Issues in Patent Applications, 76 FR 7162, 7167 (Feb. 9, 2011).
Claim Rejections - 35 USC § 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, 8, 9, and 12 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Hiromi (20160116592). Referring to claims 1, Hiromi (20160116592) shows a similar range measurement device that operates on a time of flight principle (see paragraph 3). Hiromi shows an illumination system, comprising an illumination driver and an illumination source, configured to project modulated electromagnetic radiation to a point on a surface of interest (see figure 4 Ref 104 and Ref 110); a sensor system, comprising a sensor driver, configured to receive and demodulate electromagnetic radiation reflected from the surface of interest (see figure 4 Ref 106 and the front end electronics Ref 108); a temperature sensor configured to provide a measured temperature representing a temperature at one of the illumination driver and the sensor driver (see paragraph 73 and figure 4 Ref 404), the temperature sensor being located at a position remote from the one of the illumination driver and the sensor driver such that a change in temperature at the one of the illumination driver and the sensor driver is not instantaneously detected at the temperature sensor (see figure 4 note ref 404 is located remote from the analog front end electronics used to drive the sensor); a compensation component configured to calculate a phase offset between the illumination system and the sensor system from at least the measured temperature and a model representing transient heat flow within the system (see paragraph 73-74 note the polynomial equation used to correct the phase based on the output by the temperature sensor) and a time of flight calculation component configured to determine a distance to the point of the surface of interest from the demodulated electromagnetic radiation and the phase offset (see figure 4 Ref 158 to 161). Referring to claim 8, Hiromi shows to determine a distance to the point of the surface of interest from the demodulated electromagnetic radiation and the phase offset (see paragraph 75 note the ( x - x 0 ) 2 refers to temperature over time). Referring to claim 9, Hiromi shows model representing the phase offset as an exponential function of a time since the beginning of a transition in temperature (see paragraph 75 note the ( x - x 0 ) 2 refers to time). Referring to claim 12, Hiromi shows a time of flight calculation component configured to determine a distance to the point of the surface of interest from the demodulated electromagnetic radiation and the phase offset (see figure 5 Ref 516 and 518).
Allowable Subject Matter Claims 2-7, 10, and 11 are not rejected over prior art.
Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Reiner (20100123895) shows a similar range measurement device that operates on a time of flight or transit time principle (see paragraph 2 and 5). Reiner also shows that small variations in temperature of the transmitter can result in inconsistent results and these inconsistencies must be accounted for (see paragraph 22 and 40). Note that the temperature sensor is provided to not only monitor the temperature of the laser but also the laser driver (see paragraph 22). See also Stark (6987823), Stark shows a similar device that is considered prior art due to the solving a common problem, where the problem is the compensation of temperature on an optical driver. Note that Stark specifically shows temperature compensation for multiple drivers simultaneously (see the specifics discussed in column 3 lines 30-column 4 line 5). However neither Reiner nor Stark discloses specifically or renders obvious the indirect nature of the driver temperature sensing as shown in the current application. This alone would be rendered obvious because remote temperature sensing along with compensation is extremely well known however because a specific model of transient heat flow within the system (the system being the time of flight system not simply the illumination or receiving system). Generating a phase compensation with respect to a temperature model generated by a remote sensor in this type of system is not taught or rendered obvious by the prior art, most of the prior art teaches direct measurement and direct phase compensation.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LUKE D RATCLIFFE whose telephone number is (571)272-3110. The examiner can normally be reached on M-F 9:00AM-5:00PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Isam Alsomiri can be reached on 571-272-6970. 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.
/LUKE D RATCLIFFE/ Primary Examiner, Art Unit 3645 | 2022-06-11T11:41:54 | [
"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 Priority Acknowledgment is made of applicant's claim for foreign priority based on an application filed in India on 3/10/2017. It is noted, however, that applicant has not filed a certified copy of the application as required by 37 CFR 1.55. Please note that a copy has been sent on 1/16/2018 in the parent application 15729060, however, due to an unknown error this copy can’t be viewed and verified. Claim Objections Claim 1 is objected to because of the following informalities: the term “radia-tion” should be “radiation” and is examined as such. Appropriate correction is required. Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(f): (f) Element in Claim for a Combination.",
"– An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph: An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. Claims 1-12 and 20 are rejected under 112, sixth paragraph: Claim element “temperature sensor” is a means (or step) plus function limitation that invokes 35 U.S.C. 112, sixth paragraph.",
"However, the written description fails to disclose the corresponding structure, material, or acts for the claimed function. Note the specification continuously refers to the \"temperature sensor” as the generic term indicated in the claim Applicant is required to: (a) Amend the claim so that the claim limitation will no longer be a means (or step) plus function limitation under 35 U.S.C. 112, sixth paragraph; or (b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the claimed function without introducing any new matter (35 U.S.C.",
"132(a)). If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant is required to clarify the record by either: (a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or (b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function.",
"For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181. //END OF 112(6) REJECTION// CLAIM INTERPRETATION Claim limitation “compensation component” has/have been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because it uses/they use a generic placeholder “configured to” coupled with functional language “calculate a phase offset” without reciting sufficient structure to achieve the function. Furthermore, the generic placeholder is not preceded by a structural modifier. Since the claim limitation(s) invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, claim(s) 1 has/have been interpreted to cover the corresponding structure described in the specification that achieves the claimed function, and equivalents thereof. A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C.",
"112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitation: the details of the processing system found in paragraph 47-51. If applicant wishes to provide further explanation or dispute the examiner’s interpretation of the corresponding structure, applicant must identify the corresponding structure with reference to the specification by page and line number, and to the drawing, if any, by reference characters in response to this Office action. If applicant does not intend to have the claim limitation(s) treated under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112 , sixth paragraph, applicant may amend the claim(s) so that it/they will clearly not invoke 35 U.S.C.",
"112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, or present a sufficient showing that the claim recites/recite sufficient structure, material, or acts for performing the claimed function to preclude application of 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. For more information, see MPEP § 2173 et seq. and Supplementary Examination Guidelines for Determining Compliance With 35 U.S.C. 112 and for Treatment of Related Issues in Patent Applications, 76 FR 7162, 7167 (Feb. 9, 2011). Claim Rejections - 35 USC § 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, 8, 9, and 12 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Hiromi (20160116592). Referring to claims 1, Hiromi (20160116592) shows a similar range measurement device that operates on a time of flight principle (see paragraph 3). Hiromi shows an illumination system, comprising an illumination driver and an illumination source, configured to project modulated electromagnetic radiation to a point on a surface of interest (see figure 4 Ref 104 and Ref 110); a sensor system, comprising a sensor driver, configured to receive and demodulate electromagnetic radiation reflected from the surface of interest (see figure 4 Ref 106 and the front end electronics Ref 108); a temperature sensor configured to provide a measured temperature representing a temperature at one of the illumination driver and the sensor driver (see paragraph 73 and figure 4 Ref 404), the temperature sensor being located at a position remote from the one of the illumination driver and the sensor driver such that a change in temperature at the one of the illumination driver and the sensor driver is not instantaneously detected at the temperature sensor (see figure 4 note ref 404 is located remote from the analog front end electronics used to drive the sensor); a compensation component configured to calculate a phase offset between the illumination system and the sensor system from at least the measured temperature and a model representing transient heat flow within the system (see paragraph 73-74 note the polynomial equation used to correct the phase based on the output by the temperature sensor) and a time of flight calculation component configured to determine a distance to the point of the surface of interest from the demodulated electromagnetic radiation and the phase offset (see figure 4 Ref 158 to 161).",
"Referring to claim 8, Hiromi shows to determine a distance to the point of the surface of interest from the demodulated electromagnetic radiation and the phase offset (see paragraph 75 note the ( x - x 0 ) 2 refers to temperature over time). Referring to claim 9, Hiromi shows model representing the phase offset as an exponential function of a time since the beginning of a transition in temperature (see paragraph 75 note the ( x - x 0 ) 2 refers to time). Referring to claim 12, Hiromi shows a time of flight calculation component configured to determine a distance to the point of the surface of interest from the demodulated electromagnetic radiation and the phase offset (see figure 5 Ref 516 and 518). Allowable Subject Matter Claims 2-7, 10, and 11 are not rejected over prior art. Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Reiner (20100123895) shows a similar range measurement device that operates on a time of flight or transit time principle (see paragraph 2 and 5). Reiner also shows that small variations in temperature of the transmitter can result in inconsistent results and these inconsistencies must be accounted for (see paragraph 22 and 40).",
"Note that the temperature sensor is provided to not only monitor the temperature of the laser but also the laser driver (see paragraph 22). See also Stark (6987823), Stark shows a similar device that is considered prior art due to the solving a common problem, where the problem is the compensation of temperature on an optical driver. Note that Stark specifically shows temperature compensation for multiple drivers simultaneously (see the specifics discussed in column 3 lines 30-column 4 line 5). However neither Reiner nor Stark discloses specifically or renders obvious the indirect nature of the driver temperature sensing as shown in the current application. This alone would be rendered obvious because remote temperature sensing along with compensation is extremely well known however because a specific model of transient heat flow within the system (the system being the time of flight system not simply the illumination or receiving system).",
"Generating a phase compensation with respect to a temperature model generated by a remote sensor in this type of system is not taught or rendered obvious by the prior art, most of the prior art teaches direct measurement and direct phase compensation. Any inquiry concerning this communication or earlier communications from the examiner should be directed to LUKE D RATCLIFFE whose telephone number is (571)272-3110.",
"The examiner can normally be reached on M-F 9:00AM-5:00PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Isam Alsomiri can be reached on 571-272-6970. 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. /LUKE D RATCLIFFE/ Primary Examiner, Art Unit 3645"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-06-19.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
AHMED A. OSMAN, DOCKET NUMBER Appellant, PH-0752-15-0030-I-2
v.
DEPARTMENT OF THE ARMY, DATE: August 11, 2016 Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Adam D. Meshkov, Esquire, Easton, Pennsylvania, for the appellant.
Tyler A. Gattermeyer, Tobyhanna, Pennsylvania, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which sustained his removal. Generally, we grant petitions such as this one only when: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative
* A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2
judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED by this Final Order to find that the appellant created a hostile work environment in violation of Title VII, we AFFIRM the initial decision.
BACKGROUND ¶2 The appellant was formerly employed as a Sheet Metal Worker, WG‑3806‑08, at the agency’s Tobyhanna Army Depot (TYAD) in Tobyhanna, Pennsylvania. Initial Appeal File (IAF), Tab 6 at 47. In January 2014, a coworker, M.K., reported to his supervisor and the agency’s equal employment opportunity (EEO) office that the appellant had been harassing him by making obscene sexual and racial comments, thus creating a hostile work environment. Id. at 15. The EEO office forwarded the matter to the military police for investigation. Id. at 12. On March 10, 2014, the investigator issued a report including sworn statements from the appellant, M.K., and two other TYAD employees, who at least partially corroborated M.K.’s account. Id. at 12-27. For his part, the appellant admitted to asking M.K. a sexually graphic question and to making a “duck face” (which was misconstrued as a blown kiss), but he otherwise denied M.K.’s allegations. Id. ¶3 On April 1, 2014, the agency proposed to remove the appellant for “Conduct Unbecoming a Federal Employee related to Violation of Tobyhanna Army Depot Policy Memorandum #4‑‑Equal Employment Opportunity and the 3
Prevention of Unlawful Harassment.” Id. at 27-36. The specification was in narrative form and included several allegations that the appellant harassed M.K. continually from about October 2013 to the present by the appellant repeatedly stating vulgar, disgusting comments and making obscene gestures to M.K.; and that M.K. had repeatedly told the appellant to stop, but the appellant persisted. The appellant provided an oral response, along with a handwritten note in which he apologized for his conduct but also asserted that “most of the allegations against me are not true and made up.” Id. at 38; see Refiled Appeal File (RAF), Tab 8 at 56. The deciding official sustained the charge and removed the appellant effective September 16, 2014. Id. at 38‑45. ¶4 The appellant filed a timely Board appeal, which was subsequently dismissed without prejudice and automatically refiled. IAF, Tabs 1, 20; RAF, Tab 1. Following a hearing, the administrative judge sustained the removal, finding that the agency proved the charged misconduct, established nexus, and showed that the penalty was reasonable. RAF, Tab 11, Initial Decision (ID). This petition for review followed. Petition for Review (PFR) File, Tab 1. The agency has responded. PFR File, Tab 3.
ANALYSIS The agency’s charge requires proof under the Title VII standard. ¶5 When an agency charges an employee with violating its hostile work environment sexual harassment policy but not with violating Title VII, and the agency policy defines sexual harassment without explicit reference to Federal law and without tracking Title VII, the agency is required to prove only that the appellant’s conduct violated the agency’s policy. Viens v. Department of the Interior, 92 M.S.P.R. 256, ¶ 6 (2002). When, however, an agency charges an employee with violating its sexual harassment policy and that policy explicitly references the Title VII standard, including creating a hostile work environment, the Title VII standard must be applied, and the agency is required to prove that 4
the appellant’s conduct violated Title VII. Id. Similarly, when an agency charges an employee with violating its hostile work environment sexual harassment policy and that policy tracks the language of Title VII’s regulations, even though the policy does not explicitly reference them, the proper standard for judging the alleged misconduct is that of Title VII. Id. ¶6 Here, the administrative judge found that Title VII standards do not apply because neither the proposal notice nor the cited agency policy refers explicitly to Title VII. ID at 2 n.3. However, while the policy memorandum does not refer to Title VII by name, it pertains to “Unlawful Harassment,” and contains a statement that “[u]nlawful harassment (including sexual harassment) violates Federal law.” RAF, Tab 8 at 53. The reference to Title VII is implicit but unmistakable. We therefore find that, to prove its charge, the agency must establish that the appellant created a hostile work environment in violation of Title VII. While the agency could have charged the appellant with inappropriate behavior without reference to the policy memorandum in question, the Board is required to review the agency’s decision on an adverse action solely on the grounds invoked by the agency, and may not substitute what it considers to be a more adequate or proper basis. Gottlieb v. Veterans Administration, 39 M.S.P.R. 606, 609 (1989).
The appellant’s conduct created a hostile work environment in violation of Title VII. ¶7 Title VII is violated when the workplace is permeated with unwelcome discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Viens, 92 M.S.P.R. 256, ¶ 9. The standard for determining whether conduct violates Title VII takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. Id. Determining whether the environment is hostile or abusive must be made by examining all the circumstances. Id., ¶ 10. These include the frequency of the discriminatory 5
conduct, its severity, whether it was physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interfered with an employee’s work performance. Id. The effect on the employee’s psychological well-being is relevant to determining whether the victim actually found the environment abusive, but psychological harm is not required for a finding of harassment. Id. Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment that constitute sexual harassment. Id. ¶8 Based on our review of the evidence, the agency clearly met its burden of proving that the appellant created a hostile work environment in violation of Title VII. In proposing the appellant’s removal, the agency described numerous obscene and humiliating remarks and gestures, some racially charged, that the appellant directed toward M.K. on a daily basis over a period of several months. IAF, Tab 6 at 29. The proposal notice further related that M.K. felt “creeped out” and “disgusted” by the appellant’s comments, that he told the appellant to stop making such comments, that he tried to keep his distance from the appellant, that he requested that the appellant be moved to another shop, and that he believed the appellant created a hostile work environment. Id. The administrative judge credited the agency’s version of events over the appellant’s, based in part on his observations of witness demeanor, and the appellant has not identified sufficiently sound reasons to overturn his credibility determinations. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Under these circumstances, it is unnecessary to remand the appeal for further development of the record, and we may sustain the charge at the Board level. See Booker v. Department of Veterans Affairs, 110 M.S.P.R. 72, ¶ 7 (2008).
The removal action is sustained. ¶9 It is well settled that there is a sufficient nexus between an employee’s conduct and the efficiency of the service when the conduct occurred at work. Miles v. Department of the Navy, 102 M.S.P.R. 316, ¶ 11 (2006). Moreover, 6
regardless of whether the agency’s penalty determination is entitled to deference, the Board has held that removal is a reasonable penalty in cases of sexual harassment creating a hostile work environment in violation of Title VII. See Booker, 110 M.S.P.R. 72, ¶ 20; Viens, 92 M.S.P.R. 256, ¶ 23. While the appellant contends that the penalty is too harsh, the sustained misconduct is egregious, and we do not discern any mitigating factors that would warrant a different result. Accordingly, we sustain the removal.
NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to request review of this final decision by the U.S. Court of Appeals for the Federal Circuit. You must submit your request to the court at the following address: United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, DC 20439
The court must receive your request for review no later than 60 calendar days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). If you need further information about your right to appeal this decision to court, you should refer to the Federal law that gives you this right. It is found in title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 2012). You may read this law as well as other sections of the United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. Additional information is available at the court’s website, 7
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C. | 08-11-2016 | [
"UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD AHMED A. OSMAN, DOCKET NUMBER Appellant, PH-0752-15-0030-I-2 v. DEPARTMENT OF THE ARMY, DATE: August 11, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL * Adam D. Meshkov, Esquire, Easton, Pennsylvania, for the appellant. Tyler A. Gattermeyer, Tobyhanna, Pennsylvania, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained his removal. Generally, we grant petitions such as this one only when: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative * A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law.",
"Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed.",
"See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED by this Final Order to find that the appellant created a hostile work environment in violation of Title VII, we AFFIRM the initial decision. BACKGROUND ¶2 The appellant was formerly employed as a Sheet Metal Worker, WG‑3806‑08, at the agency’s Tobyhanna Army Depot (TYAD) in Tobyhanna, Pennsylvania. Initial Appeal File (IAF), Tab 6 at 47. In January 2014, a coworker, M.K., reported to his supervisor and the agency’s equal employment opportunity (EEO) office that the appellant had been harassing him by making obscene sexual and racial comments, thus creating a hostile work environment.",
"Id. at 15. The EEO office forwarded the matter to the military police for investigation. Id. at 12. On March 10, 2014, the investigator issued a report including sworn statements from the appellant, M.K., and two other TYAD employees, who at least partially corroborated M.K.’s account. Id. at 12-27. For his part, the appellant admitted to asking M.K. a sexually graphic question and to making a “duck face” (which was misconstrued as a blown kiss), but he otherwise denied M.K.’s allegations. Id. ¶3 On April 1, 2014, the agency proposed to remove the appellant for “Conduct Unbecoming a Federal Employee related to Violation of Tobyhanna Army Depot Policy Memorandum #4‑‑Equal Employment Opportunity and the 3 Prevention of Unlawful Harassment.” Id.",
"at 27-36. The specification was in narrative form and included several allegations that the appellant harassed M.K. continually from about October 2013 to the present by the appellant repeatedly stating vulgar, disgusting comments and making obscene gestures to M.K. ; and that M.K. had repeatedly told the appellant to stop, but the appellant persisted. The appellant provided an oral response, along with a handwritten note in which he apologized for his conduct but also asserted that “most of the allegations against me are not true and made up.” Id. at 38; see Refiled Appeal File (RAF), Tab 8 at 56. The deciding official sustained the charge and removed the appellant effective September 16, 2014. Id.",
"at 38‑45. ¶4 The appellant filed a timely Board appeal, which was subsequently dismissed without prejudice and automatically refiled. IAF, Tabs 1, 20; RAF, Tab 1. Following a hearing, the administrative judge sustained the removal, finding that the agency proved the charged misconduct, established nexus, and showed that the penalty was reasonable. RAF, Tab 11, Initial Decision (ID). This petition for review followed. Petition for Review (PFR) File, Tab 1. The agency has responded. PFR File, Tab 3. ANALYSIS The agency’s charge requires proof under the Title VII standard. ¶5 When an agency charges an employee with violating its hostile work environment sexual harassment policy but not with violating Title VII, and the agency policy defines sexual harassment without explicit reference to Federal law and without tracking Title VII, the agency is required to prove only that the appellant’s conduct violated the agency’s policy. Viens v. Department of the Interior, 92 M.S.P.R.",
"256, ¶ 6 (2002). When, however, an agency charges an employee with violating its sexual harassment policy and that policy explicitly references the Title VII standard, including creating a hostile work environment, the Title VII standard must be applied, and the agency is required to prove that 4 the appellant’s conduct violated Title VII. Id. Similarly, when an agency charges an employee with violating its hostile work environment sexual harassment policy and that policy tracks the language of Title VII’s regulations, even though the policy does not explicitly reference them, the proper standard for judging the alleged misconduct is that of Title VII. Id.",
"¶6 Here, the administrative judge found that Title VII standards do not apply because neither the proposal notice nor the cited agency policy refers explicitly to Title VII. ID at 2 n.3. However, while the policy memorandum does not refer to Title VII by name, it pertains to “Unlawful Harassment,” and contains a statement that “[u]nlawful harassment (including sexual harassment) violates Federal law.” RAF, Tab 8 at 53. The reference to Title VII is implicit but unmistakable. We therefore find that, to prove its charge, the agency must establish that the appellant created a hostile work environment in violation of Title VII. While the agency could have charged the appellant with inappropriate behavior without reference to the policy memorandum in question, the Board is required to review the agency’s decision on an adverse action solely on the grounds invoked by the agency, and may not substitute what it considers to be a more adequate or proper basis.",
"Gottlieb v. Veterans Administration, 39 M.S.P.R. 606, 609 (1989). The appellant’s conduct created a hostile work environment in violation of Title VII. ¶7 Title VII is violated when the workplace is permeated with unwelcome discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Viens, 92 M.S.P.R. 256, ¶ 9. The standard for determining whether conduct violates Title VII takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. Id. Determining whether the environment is hostile or abusive must be made by examining all the circumstances. Id., ¶ 10. These include the frequency of the discriminatory 5 conduct, its severity, whether it was physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interfered with an employee’s work performance.",
"Id. The effect on the employee’s psychological well-being is relevant to determining whether the victim actually found the environment abusive, but psychological harm is not required for a finding of harassment. Id. Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment that constitute sexual harassment. Id. ¶8 Based on our review of the evidence, the agency clearly met its burden of proving that the appellant created a hostile work environment in violation of Title VII.",
"In proposing the appellant’s removal, the agency described numerous obscene and humiliating remarks and gestures, some racially charged, that the appellant directed toward M.K. on a daily basis over a period of several months. IAF, Tab 6 at 29. The proposal notice further related that M.K. felt “creeped out” and “disgusted” by the appellant’s comments, that he told the appellant to stop making such comments, that he tried to keep his distance from the appellant, that he requested that the appellant be moved to another shop, and that he believed the appellant created a hostile work environment. Id. The administrative judge credited the agency’s version of events over the appellant’s, based in part on his observations of witness demeanor, and the appellant has not identified sufficiently sound reasons to overturn his credibility determinations. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed.",
"Cir. 2002). Under these circumstances, it is unnecessary to remand the appeal for further development of the record, and we may sustain the charge at the Board level. See Booker v. Department of Veterans Affairs, 110 M.S.P.R. 72, ¶ 7 (2008). The removal action is sustained. ¶9 It is well settled that there is a sufficient nexus between an employee’s conduct and the efficiency of the service when the conduct occurred at work. Miles v. Department of the Navy, 102 M.S.P.R. 316, ¶ 11 (2006). Moreover, 6 regardless of whether the agency’s penalty determination is entitled to deference, the Board has held that removal is a reasonable penalty in cases of sexual harassment creating a hostile work environment in violation of Title VII. See Booker, 110 M.S.P.R. 72, ¶ 20; Viens, 92 M.S.P.R.",
"256, ¶ 23. While the appellant contends that the penalty is too harsh, the sustained misconduct is egregious, and we do not discern any mitigating factors that would warrant a different result. Accordingly, we sustain the removal. NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to request review of this final decision by the U.S. Court of Appeals for the Federal Circuit. You must submit your request to the court at the following address: United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, DC 20439 The court must receive your request for review no later than 60 calendar days after the date of this order.",
"See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). If you need further information about your right to appeal this decision to court, you should refer to the Federal law that gives you this right. It is found in title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 2012).",
"You may read this law as well as other sections of the United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. Additional information is available at the court’s website, 7 www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. FOR THE BOARD: ______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C."
]
| https://www.courtlistener.com/api/rest/v3/opinions/4023611/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 1120133
Decision Date: 05/24/11 Archive Date: 06/06/11
DOCKET NO. 10-37 327 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Fort Harrison, Montana
THE ISSUES
1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss.
2. Whether new and material evidence has been received to reopen a claim of service connection for tinnitus.
REPRESENTATION
Appellant represented by: Montana Veterans Affairs Division
WITNESSES AT HEARING ON APPEAL
Appellant & Son-in-law
ATTORNEY FOR THE BOARD
Jarrette A. Marley, Associate Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from October 1966 to September 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Ft. Harrison, Montana Department of Veterans Affairs (VA) Regional Office (RO). In December 2010, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the claims file.
An unappealed December 2002 rating decision denied service connection for bilateral hearing loss and for tinnitus. Although the RO adjudicated the Veteran's claim de novo in the August 2010 statement of the case (SOC), the question of whether new and material evidence has been received to reopen the claim must be addressed in the first instance by the Board because that issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'd 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly.
The matter of entitlement to service connection for right ear hearing loss based on de novo review is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on his part is required.
FINDINGS OF FACT
1. An unappealed December 2002 rating decision denied the Veteran's claim of service connection for bilateral hearing loss and tinnitus based essentially on a finding that such disabilities were not shown to be related to his service.
2. Evidence received since the December 2002 rating decision, including a May 2010 VA medical opinion and the Veteran's hearing testimony, tends to relate the Veteran's bilateral hearing loss and tinnitus to his service; relates to the unestablished facts necessary to substantiate the claims of service connection for bilateral hearing loss and tinnitus; and raises a reasonable possibility of substantiating the claims.
3. It is reasonably shown that the Veteran's left ear hearing loss is causally related to his exposure to noise trauma in service.
4. It is reasonably shown that the Veteran has tinnitus and that such is causally related to his [now] service connected left ear hearing loss.
CONCLUSIONS OF LAW
1. New and material evidence has been received, and the claims of service connection for bilateral hearing loss and tinnitus may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010).
2. On de novo review, service connection for left ear hearing loss is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2010).
3. On de novo review, service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim.
Regarding the Veteran's left ear hearing loss disability and tinnitus, inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA in these matters. Regarding right ear hearing loss disability, inasmuch as the determination below constitutes a full grant of the portion of the claim being addressed, there is no reason to belabor the impact of the VCAA on this matter since any error in notice content or timing is harmless.
B. Legal Criteria, Factual Background, and Analysis
Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims.
New and Material Evidence
Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be reopened. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108.
"New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a).
When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992).
An unappealed December 2002 rating decision denied the Veteran's claims of service connection for bilateral hearing loss and tinnitus based essentially on a finding that his hearing loss and tinnitus were not related to his service. That decision is final. 38 U.S.C.A. § 7105.
Evidence of record at the time of the December 2002 rating decision included: the Veteran's DD Form 214 which showed that his military occupational specialty (MOS) in service was armor crewman; his service entrance and separation examination reports showing hearing within normal limits (by VA standards) (although separation audiometry showed an elevated left ear puretone threshold); his STRs, which are silent for complaints, findings, treatment, or diagnosis relating to hearing loss and tinnitus; and the report of an October 2002 VA examination diagnosing the Veteran with moderate to moderately severe sensorineural hearing loss (SNHL), bilaterally, noting that his hearing loss does not have a noise-induced pattern, and opining that the hearing loss originated in service but most of the hearing loss occurred following service (and may be related to medical factors following service).
Pertinent evidence received since the December 2002 rating decision includes statements from the Veteran that his duties during service exposed him to loud noises from tanks and other heavy equipment, and that he has hearing loss and ringing in his ears from his noise exposure during service; the report of a May 2010 VA examination opining that the possibility of service related noise contributing to the Veteran's current hearing loss cannot be ruled out; and his December 2010 videoconference hearing testimony that he has experienced hearing loss and tinnitus since service.
As the claims were previously denied based essentially on a finding that hearing loss and tinnitus were not shown to be related to the Veteran's service, for evidence received since to be new and material in the matters, it must relate to those unestablished facts (i.e., it must show/suggest that the Veteran's bilateral hearing loss and tinnitus are related to his active service).
Considering the evidence received since the prior denial of the claim in December 2002, the Board finds that it is new as it was not previously of record and that it is material as it tends to suggest that the Veteran's bilateral hearing loss and tinnitus are related to service. Significantly, the Veteran's testimony that he has had tinnitus since service is, for purposes of reopening the claim, presumed credible. Therefore, the new evidence received pertains to the unestablished facts necessary to substantiate the claims of service connection for hearing loss and tinnitus, raises a reasonable possibility of substantiating the claims, and is material. Accordingly, the claims may be reopened.
De Novo Review - Legal Criteria and Factual Background
As the Board finds that new and material evidence has been received and the claims may be reopened, the analysis proceeds to a de novo review. The Veteran is not prejudiced by the Board's proceeding with de novo review of these claims without returning them to the RO for their initial de novo consideration (upon reopening of the claims) because the RO adjudicated the matters de novo before certifying the appeal for Board review (and these benefits sought are being granted).
Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).
Service connection may also be granted for disability that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310.
In order to establish service connection for a claimed disability, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).
Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
The Veteran's DD Form 214 reveals that his MOS was armor crewman.
On August 1966 service entrance examination, puretone thresholds, in decibels, were:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
15
15
N/A
5
LEFT
5
10
10
N/A
15
The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis relating to hearing loss or tinnitus.
On June 1968 service separation examination, puretone thresholds, in decibels, were:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
15
20
0
LEFT
5
5
0
0
30
In September 2002, the Veteran filed a claim of service connection for bilateral hearing loss and tinnitus.
On October 2002 VA audiological evaluation, puretone thresholds, in decibels, were:
HERTZ
500
1000
2000
3000
4000
RIGHT
60
60
60
60
65
LEFT
55
65
60
60
65
Speech audiometry revealed speech recognition ability of 72 percent in each ear. The diagnosis was moderate to moderately severe bilateral SNHL. The Veteran reported that he was exposed to loud noise exposure from tanks and gunfire without ear protection during service. He indicated that following his separation from service, he worked as a store manager with no loud noise exposure. It was noted he entered the service with normal hearing and exited service with mild hearing loss at 3000 to 4000 Hertz in the left ear. The examiner noted that the Veteran's hearing loss does not have a noise-induced pattern. He opined that while the hearing loss originated in service, most of the hearing loss occurred following service and may be related to medical factors following service duty.
In August 2009, the Veteran sought to reopen the claims of service connection for bilateral hearing loss and tinnitus. He stated that during service he was stationed around armored tanks and subjected to loud noises from them. He reported that he has hearing loss and constant ear ringing.
In September 2009 correspondence, the Veteran described his exposure to noise trauma in service.
On May 2010 VA audiological evaluation, puretone thresholds, in decibels, were:
HERTZ
500
1000
2000
3000
4000
RIGHT
65
65
65
65
70
LEFT
70
75
70
70
75
Speech audiometry revealed speech recognition ability of 80 percent in the right ear, and 83 percent in the left ear. The diagnosis was moderately severe SNHL, right ear, and moderately severe to severe SNHL, left ear, with subjective tinnitus. The Veteran complained of hearing loss and tinnitus since service, although he denied complaints of tinnitus problems since he purchased hearing aids in 2004. He reported that his postservice noise exposure included recreational gunfire without ear protection. The examiner noted the Veteran's type of hearing loss is often seen as a result of health problems, and it does not have a typical noise-induced configuration. He opined that "due to [the Veteran] having normal hearing upon enlistment and then a mild left ear hearing loss upon separation, the possibility of service related noise contributing to the current hearing loss cannot entirely be ruled out - military noise did contribute to his left ear hearing loss." He further indicated that the Veteran's tinnitus "is at least as likely as not a symptom of hearing loss."
In an August 2010 VA audiological nexus opinion, the consulted specialist opined that the Veteran's current hearing loss did not have its onset during his active service, and that there was no evidence the current bilateral hearing loss is the result of noise exposure or other factors while serving in the military service.
At the December 2010 videoconference hearing, the Veteran testified regarding the extent of his exposure to noise trauma in service, and that he (in essence) had minimal exposure to noise thereafter.
Left Ear Hearing Loss
Based on his MOS as an armor crewman and his credible allegation of related noise exposure from tanks (the accounts of which the Board finds no reason to question) it is not in dispute that the Veteran had exposure to noise trauma in service. It is also not in dispute that the Veteran now has a left ear hearing loss disability by VA standards, as such is diagnosed and was found on official (October 2002 and May 2010) VA audiometry.
The remaining criterion for establishing service connection for the left ear hearing loss disability is whether there is competent evidence that such disability is related to the recognized noise trauma in service; that is a medical question.
As the May 2010 VA nexus opinion reflects review of the entire record (and familiarity with the actual medical history of the disability at issue) and is supported by a detailed explanation of rationale (and also supported, at least in part, by the October 2002 VA nexus opinion that the Veteran's hearing loss originated in service), the Board finds it be both probative and persuasive evidence regarding a nexus between the Veteran's left ear hearing loss and his service. [The Board finds little probative value in the August 2010 opinion against the Veteran's claim, as it is merely a conclusion without explanation of rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).] Thus, the evidence shows that the Veteran has a left ear hearing loss disability by VA standards, that he was exposed to noise trauma in service, and (by VA medical nexus opinion) that his current left ear hearing loss disability is related to the noise trauma in service. The Board observes that the May 2010 opinion is not inconsistent with the factual evidence (which showed the left ear puretone thresholds increased during active service). All of the requirements for establishing service connection are met; service connection for left ear hearing loss disability is warranted.
Tinnitus
As tinnitus is a disability eminently capable of lay observation (see Charles v. Principi, 16 Vet. App. 370, 374 (2002)), and its presence has been acknowledged on VA examination, it is shown that the Veteran has tinnitus.
A VA examiner has opined that the Veteran's tinnitus is related to his now service-connected left ear hearing loss. The Board finds no reason to question that opinion. The requirements for establishing secondary service connection are met (See 38 C.F.R. § 3.310), and secondary service connection for tinnitus is warranted.
ORDER
The appeal to reopen a claim of service connection for left ear hearing loss is allowed, and service connection for left ear hearing loss is granted of de novo review.
The appeal to reopen a claim of service connection for right ear hearing loss is granted.
The appeal to reopen a claim of service connection for tinnitus is allowed, and service connection for tinnitus is granted on de novo review.
REMAND
As was noted above, the Veteran was subjected to noise trauma in service. He has a right ear hearing loss disability by VA standards; see October 2002 and May 2010 VA audiometry. The remaining criterion for establishing service connection for the right ear hearing loss disability is whether there is competent evidence that such disability is related to noise trauma in service; that is a medical question.
On October 2002 VA audiological evaluation, the examiner opined that the Veteran's hearing loss "originated in the service but most of the hearing loss occurred following the service and may be related to medical factors following service duty." On May 2010 VA audiological evaluation, the examiner opined that "[t]he majority of [the Veteran's] hearing loss is due to health problems, and military noise exposure is not the sole cause of his hearing loss." The Board finds these opinions are not adequate for the Board to resolve the medical questions presented, and to properly consider this matter. Specifically, these opinions suggest, but are inconclusive, as to whether the Veteran's right ear hearing loss disability originated in service (and was aggravated thereafter). Obert v. Brown, 5 Vet. App. 30 (1993).
Accordingly, the case is REMANDED for the following action:
1. The RO should forward the Veteran's claims file to an audiologist or otologist for review and an advisory medical opinion to supplement the opinions provided on October 2002 and May 2010 examination reports. The consulting medical provider should note the opinions offered by the October 2002 and May 2010 examiners, and offer opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's right ear hearing loss is causally related to his service, including as due to his exposure to noise trauma therein. The provider must explain the rationale for the opinion (and is asked to specifically comment on the October 2002 examiner's opinion that the Veteran's hearing loss originated in service).
2. The RO should then readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
______________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 05-24-2011 | [
"Citation Nr: 1120133 Decision Date: 05/24/11 Archive Date: 06/06/11 DOCKET NO. 10-37 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim of service connection for tinnitus. REPRESENTATION Appellant represented by: Montana Veterans Affairs Division WITNESSES AT HEARING ON APPEAL Appellant & Son-in-law ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1966 to September 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Ft. Harrison, Montana Department of Veterans Affairs (VA) Regional Office (RO).",
"In December 2010, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. An unappealed December 2002 rating decision denied service connection for bilateral hearing loss and for tinnitus. Although the RO adjudicated the Veteran's claim de novo in the August 2010 statement of the case (SOC), the question of whether new and material evidence has been received to reopen the claim must be addressed in the first instance by the Board because that issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'd 8 Vet.",
"App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. The matter of entitlement to service connection for right ear hearing loss based on de novo review is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on his part is required. FINDINGS OF FACT 1. An unappealed December 2002 rating decision denied the Veteran's claim of service connection for bilateral hearing loss and tinnitus based essentially on a finding that such disabilities were not shown to be related to his service. 2. Evidence received since the December 2002 rating decision, including a May 2010 VA medical opinion and the Veteran's hearing testimony, tends to relate the Veteran's bilateral hearing loss and tinnitus to his service; relates to the unestablished facts necessary to substantiate the claims of service connection for bilateral hearing loss and tinnitus; and raises a reasonable possibility of substantiating the claims. 3. It is reasonably shown that the Veteran's left ear hearing loss is causally related to his exposure to noise trauma in service.",
"4. It is reasonably shown that the Veteran has tinnitus and that such is causally related to his [now] service connected left ear hearing loss. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claims of service connection for bilateral hearing loss and tinnitus may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010). 2. On de novo review, service connection for left ear hearing loss is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2010). 3. On de novo review, service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R.",
"§§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Regarding the Veteran's left ear hearing loss disability and tinnitus, inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA in these matters. Regarding right ear hearing loss disability, inasmuch as the determination below constitutes a full grant of the portion of the claim being addressed, there is no reason to belabor the impact of the VCAA on this matter since any error in notice content or timing is harmless. B.",
"Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be reopened. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108.",
"\"New\" evidence means existing evidence not previously submitted to agency decisionmakers. \"Material\" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet.",
"App. 510 (1992). An unappealed December 2002 rating decision denied the Veteran's claims of service connection for bilateral hearing loss and tinnitus based essentially on a finding that his hearing loss and tinnitus were not related to his service. That decision is final. 38 U.S.C.A. § 7105. Evidence of record at the time of the December 2002 rating decision included: the Veteran's DD Form 214 which showed that his military occupational specialty (MOS) in service was armor crewman; his service entrance and separation examination reports showing hearing within normal limits (by VA standards) (although separation audiometry showed an elevated left ear puretone threshold); his STRs, which are silent for complaints, findings, treatment, or diagnosis relating to hearing loss and tinnitus; and the report of an October 2002 VA examination diagnosing the Veteran with moderate to moderately severe sensorineural hearing loss (SNHL), bilaterally, noting that his hearing loss does not have a noise-induced pattern, and opining that the hearing loss originated in service but most of the hearing loss occurred following service (and may be related to medical factors following service).",
"Pertinent evidence received since the December 2002 rating decision includes statements from the Veteran that his duties during service exposed him to loud noises from tanks and other heavy equipment, and that he has hearing loss and ringing in his ears from his noise exposure during service; the report of a May 2010 VA examination opining that the possibility of service related noise contributing to the Veteran's current hearing loss cannot be ruled out; and his December 2010 videoconference hearing testimony that he has experienced hearing loss and tinnitus since service. As the claims were previously denied based essentially on a finding that hearing loss and tinnitus were not shown to be related to the Veteran's service, for evidence received since to be new and material in the matters, it must relate to those unestablished facts (i.e., it must show/suggest that the Veteran's bilateral hearing loss and tinnitus are related to his active service).",
"Considering the evidence received since the prior denial of the claim in December 2002, the Board finds that it is new as it was not previously of record and that it is material as it tends to suggest that the Veteran's bilateral hearing loss and tinnitus are related to service. Significantly, the Veteran's testimony that he has had tinnitus since service is, for purposes of reopening the claim, presumed credible. Therefore, the new evidence received pertains to the unestablished facts necessary to substantiate the claims of service connection for hearing loss and tinnitus, raises a reasonable possibility of substantiating the claims, and is material. Accordingly, the claims may be reopened.",
"De Novo Review - Legal Criteria and Factual Background As the Board finds that new and material evidence has been received and the claims may be reopened, the analysis proceeds to a de novo review. The Veteran is not prejudiced by the Board's proceeding with de novo review of these claims without returning them to the RO for their initial de novo consideration (upon reopening of the claims) because the RO adjudicated the matters de novo before certifying the appeal for Board review (and these benefits sought are being granted). Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.",
"38 C.F.R. § 3.303(d). Service connection may also be granted for disability that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In order to establish service connection for a claimed disability, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.",
"Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A.",
"§ 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's DD Form 214 reveals that his MOS was armor crewman. On August 1966 service entrance examination, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 N/A 5 LEFT 5 10 10 N/A 15 The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis relating to hearing loss or tinnitus. On June 1968 service separation examination, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 20 0 LEFT 5 5 0 0 30 In September 2002, the Veteran filed a claim of service connection for bilateral hearing loss and tinnitus. On October 2002 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 60 60 60 60 65 LEFT 55 65 60 60 65 Speech audiometry revealed speech recognition ability of 72 percent in each ear.",
"The diagnosis was moderate to moderately severe bilateral SNHL. The Veteran reported that he was exposed to loud noise exposure from tanks and gunfire without ear protection during service. He indicated that following his separation from service, he worked as a store manager with no loud noise exposure. It was noted he entered the service with normal hearing and exited service with mild hearing loss at 3000 to 4000 Hertz in the left ear. The examiner noted that the Veteran's hearing loss does not have a noise-induced pattern. He opined that while the hearing loss originated in service, most of the hearing loss occurred following service and may be related to medical factors following service duty. In August 2009, the Veteran sought to reopen the claims of service connection for bilateral hearing loss and tinnitus.",
"He stated that during service he was stationed around armored tanks and subjected to loud noises from them. He reported that he has hearing loss and constant ear ringing. In September 2009 correspondence, the Veteran described his exposure to noise trauma in service. On May 2010 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 65 65 65 65 70 LEFT 70 75 70 70 75 Speech audiometry revealed speech recognition ability of 80 percent in the right ear, and 83 percent in the left ear. The diagnosis was moderately severe SNHL, right ear, and moderately severe to severe SNHL, left ear, with subjective tinnitus. The Veteran complained of hearing loss and tinnitus since service, although he denied complaints of tinnitus problems since he purchased hearing aids in 2004. He reported that his postservice noise exposure included recreational gunfire without ear protection. The examiner noted the Veteran's type of hearing loss is often seen as a result of health problems, and it does not have a typical noise-induced configuration. He opined that \"due to [the Veteran] having normal hearing upon enlistment and then a mild left ear hearing loss upon separation, the possibility of service related noise contributing to the current hearing loss cannot entirely be ruled out - military noise did contribute to his left ear hearing loss.\"",
"He further indicated that the Veteran's tinnitus \"is at least as likely as not a symptom of hearing loss.\" In an August 2010 VA audiological nexus opinion, the consulted specialist opined that the Veteran's current hearing loss did not have its onset during his active service, and that there was no evidence the current bilateral hearing loss is the result of noise exposure or other factors while serving in the military service. At the December 2010 videoconference hearing, the Veteran testified regarding the extent of his exposure to noise trauma in service, and that he (in essence) had minimal exposure to noise thereafter. Left Ear Hearing Loss Based on his MOS as an armor crewman and his credible allegation of related noise exposure from tanks (the accounts of which the Board finds no reason to question) it is not in dispute that the Veteran had exposure to noise trauma in service.",
"It is also not in dispute that the Veteran now has a left ear hearing loss disability by VA standards, as such is diagnosed and was found on official (October 2002 and May 2010) VA audiometry. The remaining criterion for establishing service connection for the left ear hearing loss disability is whether there is competent evidence that such disability is related to the recognized noise trauma in service; that is a medical question. As the May 2010 VA nexus opinion reflects review of the entire record (and familiarity with the actual medical history of the disability at issue) and is supported by a detailed explanation of rationale (and also supported, at least in part, by the October 2002 VA nexus opinion that the Veteran's hearing loss originated in service), the Board finds it be both probative and persuasive evidence regarding a nexus between the Veteran's left ear hearing loss and his service. [The Board finds little probative value in the August 2010 opinion against the Veteran's claim, as it is merely a conclusion without explanation of rationale. See Stefl v. Nicholson, 21 Vet. App.",
"120, 123 (2007).] Thus, the evidence shows that the Veteran has a left ear hearing loss disability by VA standards, that he was exposed to noise trauma in service, and (by VA medical nexus opinion) that his current left ear hearing loss disability is related to the noise trauma in service. The Board observes that the May 2010 opinion is not inconsistent with the factual evidence (which showed the left ear puretone thresholds increased during active service). All of the requirements for establishing service connection are met; service connection for left ear hearing loss disability is warranted. Tinnitus As tinnitus is a disability eminently capable of lay observation (see Charles v. Principi, 16 Vet. App. 370, 374 (2002)), and its presence has been acknowledged on VA examination, it is shown that the Veteran has tinnitus.",
"A VA examiner has opined that the Veteran's tinnitus is related to his now service-connected left ear hearing loss. The Board finds no reason to question that opinion. The requirements for establishing secondary service connection are met (See 38 C.F.R. § 3.310), and secondary service connection for tinnitus is warranted. ORDER The appeal to reopen a claim of service connection for left ear hearing loss is allowed, and service connection for left ear hearing loss is granted of de novo review. The appeal to reopen a claim of service connection for right ear hearing loss is granted. The appeal to reopen a claim of service connection for tinnitus is allowed, and service connection for tinnitus is granted on de novo review. REMAND As was noted above, the Veteran was subjected to noise trauma in service. He has a right ear hearing loss disability by VA standards; see October 2002 and May 2010 VA audiometry. The remaining criterion for establishing service connection for the right ear hearing loss disability is whether there is competent evidence that such disability is related to noise trauma in service; that is a medical question.",
"On October 2002 VA audiological evaluation, the examiner opined that the Veteran's hearing loss \"originated in the service but most of the hearing loss occurred following the service and may be related to medical factors following service duty.\" On May 2010 VA audiological evaluation, the examiner opined that \"[t]he majority of [the Veteran's] hearing loss is due to health problems, and military noise exposure is not the sole cause of his hearing loss.\"",
"The Board finds these opinions are not adequate for the Board to resolve the medical questions presented, and to properly consider this matter. Specifically, these opinions suggest, but are inconclusive, as to whether the Veteran's right ear hearing loss disability originated in service (and was aggravated thereafter). Obert v. Brown, 5 Vet. App. 30 (1993). Accordingly, the case is REMANDED for the following action: 1.",
"The RO should forward the Veteran's claims file to an audiologist or otologist for review and an advisory medical opinion to supplement the opinions provided on October 2002 and May 2010 examination reports. The consulting medical provider should note the opinions offered by the October 2002 and May 2010 examiners, and offer opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's right ear hearing loss is causally related to his service, including as due to his exposure to noise trauma therein.",
"The provider must explain the rationale for the opinion (and is asked to specifically comment on the October 2002 examiner's opinion that the Veteran's hearing loss originated in service). 2. The RO should then readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment.",
"The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
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Belcher, C. C. This is an action to recover for the use of the members of the First Reformed Church of the City of Stockton a lot of land with the dwelling-house thereon, which is situate in the city of Stockton, and was purchased and formerly used as a parsonage for the church. The defendants demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action; that it was indefinite and uncertain in certain specified particulars; and that the plaintiffs had not legal capacity to sue and maintain the action. The demurrer was overruled, and thereupon the defendants answered. The findings and judgment were in favor of plaintiffs, and the appeal was taken by defendants from the judgment and order denying them a new trial. The first question to be considered is as to the sufficiency of the complaint. The complaint is very long, but it states, in substance, that the plaintiffs and those with whom they are associated, and for whose benefit the action is also prosecuted, are a religious society in full membership with a national religious society known as the Reformed Church in the United States; that they were organized for the purpose of teaching the Gospel according to the particular form of worship, rules of government, discipline, and doctrines of that church, and after such organization they were duly incorporated under the name of the First Reformed Church of the City of Stockton; that the corporation purchased the property in controversy with funds donated by its members and by the public for the purpose of using it as a residence for its pastors, and for no other or different purpose whatever; that the defendants for fraudu*372lent purposes procured the name of the corporation to be changed, and thereafter diverted the property from the use for which it was purchased and originally intended 1. Assuming, as We must on demurrer, that all facts stated are true, we think the complaint states a cause of action. 2. We do not think the complaint indefinite and uncertain in any important particular. The plaintiffs accepted the doctrinal standard contained in the Heidelberg Catechism and the defendants that of the Lutheran Church. These doctrinal standards are alleged to be different, but we can see no necessity for stating particularly what they were and wherein they differed. 3. The plaintiffs aver that they, together with a large number of other persons, are associated together for religious purposes, and are members of the First Beformed Church of the City of Stockton, and that they prosecute the action for all the members of the church as well as themselves. This shows the question to be one of a common or general interest of many persons, and that the action was authorized by section 382 of the Code of Civil Procedure. It is argued for appellants that the court erred in admitting in evidence the constitution and by-laws of the First Reformed Church of the City of Stockton, and in support of this argument it is said that they were never adopted by any vote or act of the congregation. The congregation was organized in 1870, and the paper offered in evidence was headed: “Constitution and By-laws of the First Reformed Church of Stockton, adopted the 12th of June, 1870.” Óne of the defendants, Louis Tschiersky, was a witness, and on being shown the book containing the writings objected to, testified: “This which you now show me in the book are the constitution and by-laws of the Reformed Church, —of our church here in Stockton. I do not know of *373any other constitution or by-laws for that church.” Another witness, Schimelpfenig, on being shown the same book, testified: “I was the first secretary of the church here. That book is one of the books of the First Reformed Church. The constitution was written by Mr. Fox, the minister; we always took it for the constitution and by-laws of our church. They always acted on them and considered them as such. I do not know of any direct vote of the congregation adopting them, but they have always been the constitution and by-laws of the church since it was organized until the present day.” In view of the foregoing testimony, we see no error in the ruling complained of. It is also urged that the court erred in excluding evidence offered by defendants to show that some of the persons who were members of the society when it was organized, and took part in having it incorporated, and many of those who contributed money for the purchase of the parsonage, were at the time Lutherans in their religious belief. The objection was, that the evidence was irrelevant and immaterial, and we are unable to see how it was relevant to any issue in the case. The society was organized and incorporated as a“Reformed Church.” Its articles of incorporation show that its purpose was “to provide its members with the preaching of the Gospel, the administration of the sacraments, and the other means of grace in accordance with the confessions of faith known as the Heidelberg Catechism,” and that it adopted the doctrine and discipline of the Reformed Church in the United States. The subscription list by which all the money was raised to purchase the parsonage was headed: “We, the undersigned, obligate ourselves to pay the sums which we have written opposite our respective names for the erection of a parsonage for the First Reformed Congregation of Stockton.” And the *374deed of the property was made to the Reformed Church of the City of Stockton. This being so, the property was dedicated to the use of the church for which it was purchased, and it was a matter of no consequence whether some of the church members and some of the persons who contributed money to make the purchase were Lutherans or not. Stress is laid upon the fact that the name of the corporation was changed by an order of court, and that eleven of its members signed the paper asking for the change. But it does not appear that the eleven were a majority of the members of the church, nor, if it had so appeared, do we see how appellants would have been aided thereby. Defendant Tscheirsky testified: “When we made the application for a change of name, it was to change the church into an independent Lutheran Church, and adopt the Lutheran doctrine.” And the court found that the application was made “with the intent and for the purpose of depriving said congregation of the benefit of their corporate franchise, and of changing the original purpose and intent for which the same was organized, and of depriving said Reformed Church and the congregation thereof of the use and benefit of their property herein described, and for the purpose of diverting all of said property of said corporation from the use to which it was dedicated by said corporation and by the members of said congregation, and from the purposes for which the funds were subscribed with which to purchase the said property.” It is thus made clear that the property in question was held by the Reformed Church in trust for its members, and the defendants, even though they constituted a majority of the members, had no right and no power to divert it to the use of another and different church organization. (Kniskern v. Lutheran Churches, 1 Sand. Ch. 439; Schnorr’s Appeal, 67 Pa. St. 138; Roshi’s Appeal, 69 Pa. St. 462; Watson v. Jones, 13 Wall. 679.) *375The other points discussed by counsel do not require special notice. Looking at the whole record, we find nothing calling for a reversal of the judgment, and we therefore advise that the judgment and order be affirmed. Foote, C., concurred. The Court. For the reasons given in the foregoing, opinion, the judgment and order are affirmed. Paterson, J., did not participate in the decision of this cause. | 01-08-2022 | [
"Belcher, C. C. This is an action to recover for the use of the members of the First Reformed Church of the City of Stockton a lot of land with the dwelling-house thereon, which is situate in the city of Stockton, and was purchased and formerly used as a parsonage for the church. The defendants demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action; that it was indefinite and uncertain in certain specified particulars; and that the plaintiffs had not legal capacity to sue and maintain the action. The demurrer was overruled, and thereupon the defendants answered. The findings and judgment were in favor of plaintiffs, and the appeal was taken by defendants from the judgment and order denying them a new trial. The first question to be considered is as to the sufficiency of the complaint. The complaint is very long, but it states, in substance, that the plaintiffs and those with whom they are associated, and for whose benefit the action is also prosecuted, are a religious society in full membership with a national religious society known as the Reformed Church in the United States; that they were organized for the purpose of teaching the Gospel according to the particular form of worship, rules of government, discipline, and doctrines of that church, and after such organization they were duly incorporated under the name of the First Reformed Church of the City of Stockton; that the corporation purchased the property in controversy with funds donated by its members and by the public for the purpose of using it as a residence for its pastors, and for no other or different purpose whatever; that the defendants for fraudu*372lent purposes procured the name of the corporation to be changed, and thereafter diverted the property from the use for which it was purchased and originally intended 1.",
"Assuming, as We must on demurrer, that all facts stated are true, we think the complaint states a cause of action. 2. We do not think the complaint indefinite and uncertain in any important particular. The plaintiffs accepted the doctrinal standard contained in the Heidelberg Catechism and the defendants that of the Lutheran Church. These doctrinal standards are alleged to be different, but we can see no necessity for stating particularly what they were and wherein they differed. 3. The plaintiffs aver that they, together with a large number of other persons, are associated together for religious purposes, and are members of the First Beformed Church of the City of Stockton, and that they prosecute the action for all the members of the church as well as themselves.",
"This shows the question to be one of a common or general interest of many persons, and that the action was authorized by section 382 of the Code of Civil Procedure. It is argued for appellants that the court erred in admitting in evidence the constitution and by-laws of the First Reformed Church of the City of Stockton, and in support of this argument it is said that they were never adopted by any vote or act of the congregation.",
"The congregation was organized in 1870, and the paper offered in evidence was headed: “Constitution and By-laws of the First Reformed Church of Stockton, adopted the 12th of June, 1870.” Óne of the defendants, Louis Tschiersky, was a witness, and on being shown the book containing the writings objected to, testified: “This which you now show me in the book are the constitution and by-laws of the Reformed Church, —of our church here in Stockton.",
"I do not know of *373any other constitution or by-laws for that church.” Another witness, Schimelpfenig, on being shown the same book, testified: “I was the first secretary of the church here. That book is one of the books of the First Reformed Church. The constitution was written by Mr. Fox, the minister; we always took it for the constitution and by-laws of our church. They always acted on them and considered them as such. I do not know of any direct vote of the congregation adopting them, but they have always been the constitution and by-laws of the church since it was organized until the present day.” In view of the foregoing testimony, we see no error in the ruling complained of. It is also urged that the court erred in excluding evidence offered by defendants to show that some of the persons who were members of the society when it was organized, and took part in having it incorporated, and many of those who contributed money for the purchase of the parsonage, were at the time Lutherans in their religious belief. The objection was, that the evidence was irrelevant and immaterial, and we are unable to see how it was relevant to any issue in the case.",
"The society was organized and incorporated as a“Reformed Church.” Its articles of incorporation show that its purpose was “to provide its members with the preaching of the Gospel, the administration of the sacraments, and the other means of grace in accordance with the confessions of faith known as the Heidelberg Catechism,” and that it adopted the doctrine and discipline of the Reformed Church in the United States. The subscription list by which all the money was raised to purchase the parsonage was headed: “We, the undersigned, obligate ourselves to pay the sums which we have written opposite our respective names for the erection of a parsonage for the First Reformed Congregation of Stockton.” And the *374deed of the property was made to the Reformed Church of the City of Stockton.",
"This being so, the property was dedicated to the use of the church for which it was purchased, and it was a matter of no consequence whether some of the church members and some of the persons who contributed money to make the purchase were Lutherans or not. Stress is laid upon the fact that the name of the corporation was changed by an order of court, and that eleven of its members signed the paper asking for the change.",
"But it does not appear that the eleven were a majority of the members of the church, nor, if it had so appeared, do we see how appellants would have been aided thereby. Defendant Tscheirsky testified: “When we made the application for a change of name, it was to change the church into an independent Lutheran Church, and adopt the Lutheran doctrine.” And the court found that the application was made “with the intent and for the purpose of depriving said congregation of the benefit of their corporate franchise, and of changing the original purpose and intent for which the same was organized, and of depriving said Reformed Church and the congregation thereof of the use and benefit of their property herein described, and for the purpose of diverting all of said property of said corporation from the use to which it was dedicated by said corporation and by the members of said congregation, and from the purposes for which the funds were subscribed with which to purchase the said property.” It is thus made clear that the property in question was held by the Reformed Church in trust for its members, and the defendants, even though they constituted a majority of the members, had no right and no power to divert it to the use of another and different church organization.",
"(Kniskern v. Lutheran Churches, 1 Sand. Ch. 439; Schnorr’s Appeal, 67 Pa. St. 138; Roshi’s Appeal, 69 Pa. St. 462; Watson v. Jones, 13 Wall. 679.) *375The other points discussed by counsel do not require special notice. Looking at the whole record, we find nothing calling for a reversal of the judgment, and we therefore advise that the judgment and order be affirmed. Foote, C., concurred. The Court. For the reasons given in the foregoing, opinion, the judgment and order are affirmed. Paterson, J., did not participate in the decision of this cause."
]
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