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<urn:uuid:d3ced112-3fe1-4437-a6a1-a32201f0de1e>
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Da Silva Moore Fury
I'm late to the party, because I actually took a real vacation to Florida for spring training, but I came back to find that the blogosphere is atwitter with reactions to the Da Silva Moore v. Publicis Groupe & MSL Group plaintiffs' comments about United States District Court (New York) Magistrate Judge Andrew Peck in the plaintiff's March 19 reply brief filed by Sanford Wittels & Hesler. The matter is now pending before U.S.D.C. Judge Andrew Carter. (Peck won the 2011 Law Technology News Innovation Award for Champion of Technology for his work educating the legal community about litigation technology).
Here are some of the most vibrant discussions:
* Brandon D. Hollinder: eDiscovery News' "Update - Plaintiffs Attack Judge Peck's Da Silva Moore Predictive Coding Order Again." An excerpt: "From the outset, there was a noticeable undertone of animosity towards Judge Peck running throughout the Reply. Plaintiffs took the opportunity to play up the connection between Judge Peck and defense counsel Ralph Losey (who is also regarded as a thought leader in the e-discovery industry and is the author of a widely disseminated blog among other things), and to a lesser extent Recommind, the software vendor whose computer-assisted review platform will potentially be used in this matter.
* Herb Roitblat, of OrcaTec, dives into the discussion, on the Information Discovery blog, here. His opening lines: "The Plaintiffs in the Da Silva Moore case have gone far beyond zealous advocacy in their objection to Judge Peck's order. The Plaintiffs object to the protocol (see the protocol and other documents here) that gives them the keys to the e-discovery candy store. In return, they propose to burn down the store and eviscerate the landlord."
* eDiscoveryJournal: "Da Silva Moore Fast Becoming Landmark eDiscovery Case," by Barry Murphy:
"I have heard Judge Peck speak on several occasions and he is always careful to not tout any particular technology. Rather, he talks about how the use of various technologies, when married with the right process and backed up by the right statistics, can be more effective than traditional approaches to eDiscovery search. To say that he touts predictive coding technology is really mincing words, in my opinion. In fact, Judge Peck makes the point that collaboration is the key when it comes to using TAR. The two sides must get together early in the case and agree on how it will be used. At LegalTech early this year, Peck made it a point to say that he did not see it as the Court’s responsibility to dig into algorithms or technology and approve specific one’s as viable. Rather, he expected the two parties to cooperate on the use of TAR. Memorably, much of the room chuckled at the word cooperate. This case illustrates why."
* LTN columnist Craig Ball, with his trademark wicked wit, skewers those who attack Peck in "Putting the Duh in Da Silva Moore," on his blog, here. He compares the plaintiffs' actions to the most absurd and entertaining litigation of 2011, the Victor Stanley/Creative Pipe warfare: "The plaintiffs, whose QA and sampling values were rejected, have every right to complain about the metrics. Where predictive coding is concerned, the devil is very much in the details. But their pairing of valid concerns with a sleazy personal attack on the judge has to be one of the dumbest moves to come down the e-discovery pike since Creative Pipe named its line of stolen garbage can designs FUVISTA (for F*** yoU VIctor STAnley). It puts the duh in Da Silva Moore."
See also: Peck's "Search, Forward" article from the Oct. 2011 edition of Law Technology News.
* Complex Discovery's "Update" roster re: documents about "Peck, Parties and Predictive Coding."
Update: 3/29: Other commentary (not addressing the reply brief):
* "Judge Peck Addresses Predictive Coding in Federal Court Order," by Sean Doherty, LTN website.
* "Global E-Discovery & Da Silva Moore Technology Assisted Review Case Overview," ESI Report by Michele Lange (podcast) featuring Jim Daley of Daley & Fey.
* "Lessons Learned," by Rebecca Shwayri, LTN website.
* eDiscovery 2.0 post analyzing recent U.K. sanctions order.
* Predictive Coding in Andrew Peck's Court, by Michael Roach, EDD Update.
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http://www.eddupdate.com/2012/03/da-silva-fury.html
| 3.930405
| 12,426
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<urn:uuid:49aa8d63-9277-4884-8441-408eae3e7677>
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Shares history 1986
The extraordinary shareholders’ meeting of 28 June 1986 voted to increase the company's share capital from ITL 250,000,000,000 to ITL 350,000,000,000, divided into 175,000,000 shares with a nominal value of ITL 2,000 each, as follows:
- bonus issue of 50,000,000 new shares with a nominal value of ITL 2,000 each, to be allocated to shareholders in the proportion of two new share for each five shares held;
- capitalisation of a total of ITL 100,000,000,000 from the Monetary Revaluation Reserve established pursuant to Italian Law No. 72 of 19 March 1983;
- dividend rights of the new shares issued as per points a) and b) effective as of 1 January 1986;
To confirm the issue, coupon No. 4 shall be detached from the share certificates, and a stamp shall be placed on the face of the certificates.
The related transactions shall commence on 18 September 1986 and shall be completed, for the purposes of the relevant institutions on 31 October 1986; following such date, the transactions may be effected only through the Company’s Head Offices against presentation of the related share certificates.
Application was made for the listing of the right with all the Stock Exchanges as from 18 September 1986 and was obtained with the Milan Stock Exchange up to 9 October 1986. The share capital increase was homologated by the Court of Rome by decree No. 10115 of 19 August 1986.
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https://www.generali.com/investors/share-information-analysts/share-capital/shares-history-1986
| 3.878211
| 9,391
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<urn:uuid:41517832-db2c-4d95-9f8f-a6adbe650823>
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Everest National didn't think so.
But the California Workers' Compensation Appeals Board (WCAB) did. And the 4th District Court of Appeals didn't disagree.
In Allgreen Landscapes et al. v. WCAB et al., No. G046627, Teodora Mota asserted a lien for homecare services for her husband.
Mota's husband was involved in a car accident in August 2001, which left him comatose for over a month and permanently disabled. He sustained injuries to his head, neck, jaw, low back, right leg, right shoulder, left wrist, chest, liver, nose, eyes, gums, urinary tract and gastrointestinal system, which affected his sense of smell, hearing and psyche, and rendered him impotent.
He received an 89% stipulated award for permanent disability and future medical care.
Teodora Mota filed a lien for home care 2 years later.
At trial she testified without contradiction that she had cared for her husband 24-hours a day since his discharge from the hospital. Mota said she regularly fed him, took him for walks, administered his medications, and placed his catheter.
The trial judge awarded Mota reimbursement for services at the median rate for a licensed vocational nurse in Orange County.
Everest argued that the Immigration Reform and Control Act of 1986 barred Mota's claim since she was an illegal alien and was not eligible to work in the United States.
In a panel decision this January, the WCAB noted that Mota undisputedly provided care to her husband for which Everest did not deny liability.
The WCAB reasoned that had she elected to move to Mexico for medical treatment and rehabilitation for her husband and provided the exact same care for him there, her employment status or right to reimbursement would not be an issue. That she chose to stay in the United States should not change this result, the panel said.
This is a difficult situation but I think the WCAB got the result right. It is not so much about "working" in the United States as it is about providing proper compensation.
I don't know the immigration status of Mota's husband but as we know that is irrelevant to the payment of compensation in a work injury in California. Immigration status is only relevant to vocational status post injury.
In Mota's case, that she is providing for her husband 24 hours a day, according to the facts, removes her from the labor pool in which she could otherwise generate income for the family - be it illegally in the United States, or legally in Mexico.
Everest would otherwise have had to pay for Mota's husband's care, so when one really gets down to brass tacks Everest didn't lose anything - it was responsible for the care regardless of the provider, and potentially even more expensive care.
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https://daviddepaolo.blogspot.com/2012/05/immigration-status-and-home-care.html?showComment=1337440565675
| 4.019029
| 41,431
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<urn:uuid:3e77f2a4-fdea-4391-80a6-0e45474b596e>
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11 Certified Question from the United States District Court
for the District of Wyoming The Honorable Scott W. Skavdahl,
Representing Appellants: Jonathon I. Aimone, Lemich Law
Center, Rock Springs, Wyoming.
Representing Appellee: Peter K. Michael, Attorney General;
Daniel E. White, Deputy Attorney General; Michael J. Finn,
Senior Assistant Attorney General; Benjamin E. Fischer,
Assistant Attorney General; Charlotte M. Powers, Assistant
Attorney General. Argument by Ms. Powers.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
The United States District Court for the District of Wyoming
certified a question to this Court concerning the relative
priority of liens against real property. This question asks
us to determine whether a lien created by a certificate of
purchase for delinquent taxes held by Appellants, Mark and
Della Brock, is superior to a lien held by the State of
Wyoming, Department of Workforce Services, for unpaid
contributions to the unemployment compensation fund. We
answer the certified question in the affirmative.
Is a lien against real property created by a certificate of
purchase for delinquent taxes pursuant to Wyo. Stat. Ann.
§ 39-13-108(d)(ii) superior to any lien held by the
State of Wyoming, Department of Workforce Services under Wyo.
Stat. Ann. § 27-3-511(b) for unpaid contributions and
interest to the unemployment compensation fund?
The federal district court's certification order contains
a statement of facts pertinent to the certified question.
According to that order, this case concerns real estate in
Uinta County and encumbrances against the property arising
from the failure of Sagebrush Broadcasting Company, Inc. to
satisfy various financial obligations. Claims against the
property have been asserted by the Brocks, the Department of
Workforce Services, the United States Internal Revenue
Service, and others. The Brocks paid past due taxes on the
property in 2010 and obtained a "Certificate of Purchase
of Real Estate for Taxes" relating to the property. They
also paid taxes on the property through October 2014. They
claim they are entitled to approximately $22, 000 in
satisfaction of the taxes (including interest), costs, and
attorneys' fees incurred in perfecting their title to the
The Department has also filed liens against the property for
delinquent unemployment insurance contributions, interest,
and fees. The Department filed its first lien on August 23,
2006, and subsequently filed an additional 14 liens against
the property. As of May 2016, the delinquent contributions,
plus interest, totaled $19, 683.47. The Internal Revenue
Service filed its lien in 2009 for unpaid federal tax
liabilities assessed against Sagebrush. The IRS's lien is
in the principal amount of $74, 983.24.
This litigation began in January 2015, when the Brocks filed
suit in state district court seeking foreclosure of their
lien and a declaration that their lien is superior to all
other encumbrances against the property. The Brocks named the
Department and the IRS as defendants. The IRS removed the case to
federal district court and has conceded that both the
Brocks' and the Department's liens have priority over
its federal tax liens.
The federal district court certified the issue to this Court
to determine the relative priority of the interests held by
the Department and the Brocks in the Sagebrush property. We
agreed to answer the certified question.
The certified question presents an issue of statutory
interpretation. We review questions of statutory
interpretation de novo. Yager v. State,
2015 WY 139, ¶ 7, 362 P.3d 777, 779 (Wyo. 2015).
In answering the certified question, we apply our usual rules
of statutory interpretation: "Our paramount
consideration is the legislature's intent as reflected in
the plain and ordinary meaning of the words used in the
statute. Initially, we determine whether the statute is clear
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http://wy.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20170503_0000045.WY.htm/qx
| 4.995485
| 39,948
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<urn:uuid:2a05c0f8-7691-4b14-b9d2-31ce6fec0cd1>
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Congress has begun to re-assert itself. In passing resolutions against further United States military involvement in Yemen, the House and Senate relied upon Congress’ sole power to declare war. Both houses also objected to President Trump’s invocation of emergency powers to redirect money to build a wall on our southern border. Each circumstance will likely result in a court case and, possibly, an eventual U.S. Supreme Court ruling. At the same time, the Supreme Court has already heard arguments in a case that could reject the current rule that executive agency interpretations of the law that created the agency should be deferred to by the courts, rather than the courts undertaking their own independent interpretation of what Congress intended. A fundamental re-ordering of the power of the branches, at the expense of the executive branch, may be at hand.
The judiciary should be non-partisan. But it might be too much to expect the judiciary to be completely oblivious to the president’s public scoffing at their neutrality. Trump has labeled federal judges as Obama judges, or Bush judges, and asserted that the federal judge in the case involving Trump University was biased simply because his parents were born in Mexico.
The offensiveness of the latter example is obvious. Former Republican Speaker Paul Ryan labeled it racist — a term conservatives have complained has been too loosely used in today’s politics, hence all the more remarkable applied by a Republican Speaker to a Republican president.
The offensiveness of calling federal judges by the name of the president who appointed them is perhaps less obvious, but not so to a federal judge herself or himself. Federal judges really do try to put politics to one side. Indeed, Obamacare would have been held unconstitutional were it not for Chief Justice Robert’s critical swing vote, though he was appointed by President Bush. Other examples include Justices O’Connor upholding Roe v. Wade, Justice Kennedy’s upholding gay right, and both justices’ providing the key vote to uphold affirmative action — even though each was an appointee of a Republican president, Ronald Reagan. Trump’s contempt for the third branch has already called forth an unprecedented rebuke from Roberts (objecting, on behalf of all federal judges to the phrase “Obama Judges” or “Bush Judges”).
Trump’s dismissiveness of the court’s independence might bear bitter fruit for his legal positions in these new challenges, while usefully restoring a greater role for Congress in the balance between the executive and legislative branches. It is not so much that the justices might respond viscerally to a president so contemptuous of them, but that the president’s behavior has made clear to them the dangers of excessive deference to the executive in inter-branch disputes, which dangers seemed less threatening, and thus lay dormant, under the more civil behavior of this president’s predecessors.
In the past, the courts have dodged making a definitive ruling on war powers and have given broad deference to the president’s interpretation of what constitutes an emergency. Perhaps now the court will uphold Congress in reasserting its constitutional powers. Since the Constitution provides for Congress, and not the president, to declare war, ought not the president be stopped from waging war in Yemen when Congress passes a resolution disapproving of U.S. military action there? In the emergency statutes, Congress gave the president unusual power over the purse, an area traditionally jealously guarded by Congress. Congress has now passed resolutions objecting to how that power has been used. Is their view irrelevant because the president has vetoed Congress’ objection? In 1803, Chief Justice Marshall asserted it was the duty of the courts to “say what the law is.” Why, then, have the courts supinely agreed to what an administrator appointed by the president says a law means? This is the moment for the judicial and legislative to re-establish that they are co-equal to the executive branch. It is long overdue.
Tom Campbell is a professor at Chapman University. He is the author of “Separation of Powers in Practice,” published by Stanford University Press. He resigned from the Republican party in 2016 and is now a registered independent.
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https://www.sbsun.com/2019/04/08/rebalancing-our-system-of-proper-checks-and-balances/
| 4.043293
| 9,263
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<urn:uuid:ac5470fb-9f59-4263-9c89-371c3031d542>
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Join our Law Notes WhatsApp Group and stay updated with Legal and Judicial Updates
Agent - Principal Relationship between Banker and Customer
Related Cases / Recent Cases / Case Law
- The Bank of India Vs The Official Liquidator, AIR 1950: The customer has no account with the bank yet three cheques were sent with a request for the collection on yourself and remit the proceeds by way of drawing a cheque drawn in favor of a bank in Bombay (less charges). The Supreme Court held that the bank acted as an agent for collection of the cheques.
- Bharat Bank Ltd Vs Kashyap Industries, AIR 1958: Supreme Court held that the defendant bank was liable to pay compensation to the plaintiff for the loss caused due to negligence in presenting the invoice to the third party.
- Central Bank of India Ltd Vs Ram Sarup Khanna and another, AIR 1956
- Section 182 of Indian Contract Act, 1872: Defines "Agent" and "Principal"
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http://lawnotes.in/Agent_-_Principal_Relationship_between_Banker_and_Customer
| 3.751644
| 49,479
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<urn:uuid:53ec92a3-78b4-4523-8650-1b0bcddb67e8>
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Gustafson v. Poitra et al
ORDER EXTENDING TEMPORARY RESTRAINING ORDER by Chief Judge Daniel L. Hovland. The temporary restraining order is extended until May 6, 2009. The show cause hearing is re-scheduled for April 28, 2009. (LUKH) Distributed to Sandra Poitra via certified mail, return receipt on 4/22/2009 (rm).
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA NORTHWESTERN DIVISION Darrel Gustafson, ) ) Plaintiff, ) ORDER EXTENDING EX PARTE ) TEMPORARY RESTRAINING ORDER vs. ) ) Sandra Poitra, All Persons Unknown ) Case No. 4:09-cv-016 claiming any estate or interest in, or lien ) or encumbrance former Belcourt Lumber ) Yard adjacent to the One Stop Market, ) Turtle Mountain Tribal Court, and Bureau ) of Indian Affairs, ) ) Defendants. ) ______________________________________________________________________________ On April 15, 2009, the Court granted the Plaintiff's request for a temporary restraining order against the Defendants. See Docket No. 7. Under Rule 65 of the Federal Rules of Civil Procedure, a temporary restraining order may not exceed ten days unless, within the time fixed, the order is extended for good cause shown. Fed. R. Civ. P. 65(b)(2). Upon a showing of good cause, a temporary restraining order may be extended an additional ten (10) days. Fed. R. Civ. P. 65(b)(2). The Court granted the request for a temporary restraining order on April 15, 2009, and scheduled a show cause hearing for April 22, 2009, at 10:30 a.m. The Turtle Mountain Tribal Court and the Bureau of Indian Affairs were served on April 16, 2009. See Docket No. 10. The United States Attorney for the District of North Dakota was served on April 17, 2009. See Docket No. 11. Sandra Poitra was not served until the afternoon of April 21, 2009. See Docket No. 12. On the morning of April 22, 2009, Sandra Poitra faxed a letter to the Clerk of Court in which she requested a continuance of the show cause hearing because the late service did not give her enough time to
retain an attorney. The Plaintiff did not object to the continuance of the show cause hearing under the circumstances. Sandra Poitra was unable to appear in Court because of the late service. The Court finds that "good cause" the late service of Sandra Poitra and her inability to retain an attorney on such short notice has been shown for extending the temporary restraining order. All of the parties have agreed that an extension of the temporary restraining order is warranted under the circumstances. As a result, the Court ORDERS that the temporary restraining order against the Defendants shall be extended until Wednesday, May 6, 2009. The Court ORDERS that the show cause hearing be re-scheduled for Tuesday, April 28, 2009, at 1:30 p.m. The Court strongly urges the parties to meet in advance of the show cause hearing in an attempt to resolve this dispute. If the parties are unable or unwilling to resolve this dispute, the Court ORDERS the parties to take part in a settlement conference with Magistrate Judge Charles S. Miller, Jr. in Courtroom Two of the U.S. District Court for the District of North Dakota in Bismarck, North Dakota, on Tuesday, April 28, 2009, at 10:30 a.m. The Clerk of Court's Office is DIRECTED to mail copies of the Court's Order Granting Ex Parte Temporary Restraining Order (Docket No. 7) and this order to Sandra Poitra at P.O. Box 1497, Belcourt, ND 58316. IT IS SO ORDERED. Dated this 22nd day of April, 2009. /s/ Daniel L. Hovland Daniel L. Hovland, Chief Judge United States District Court
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http://docs.justia.com/cases/federal/district-courts/north-dakota/nddce/4:2009cv00016/19969/14/
| 4.046999
| 45,535
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<urn:uuid:1ccde17a-7dc6-4f08-9382-65dd47156efa>
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Thursday, October 21, 2010
Short documentary on Gentile v. State Bar of Nevada
In 1991, in Gentile v. State Bar of Nevada, the U.S. Supreme Court found that the trial publicity rule of the state of Nevada, which was based on an ABA Model Rule, was unconstitutional. In response to this case, the ABA amended its Model Rule on trial publicity, and several states followed the suggestions of the ABA, also amending their rules. As part of its “Voices of American Law” series, Duke University has produced a 12 minute documentary on this case. The video, as well as links to many relevant documents is available here.
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https://bernabepr.blogspot.com/2010/10/video-documentary-on-gentile-v-state.html
| 4.005507
| 36,836
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<urn:uuid:63902b8c-7f97-4dcd-8e62-18548e642d2d>
|
By: Mark R. Malek
As you know, I have been posting a series of articles regarding proper inventorship in a patent application before the United States Patent Office. The first article in this series dealt with determining who the proper inventor is in a patent application. The next article in this series dealt with the effect of listing an improper inventor on a patent application. The part that I left out, however, is how to correct inventorship in a patent application.
If, for some reason, you have listed the wrong inventor on a patent application, then the best thing you can do is to take immediate steps to correct it. If you try to enforce your patent application later, the last thing you need is to get into a fight over who the actual inventor is. I recall a litigation that I was involved in years ago, where most of the fight revolved around inventorship. This was despite the fact that the defendant was clearly infringing the patent. To tell you the truth, the case hardly got to the merits of whether or not the defendant infringed prior to it settling. That is because most of everyone’s litigation budgets were spent dealing with the inventorship issue.
According to the Manual of Patent Examining Procedures Chapter 201.03, “correction of inventorship in an application is permitted by amendment under 35 USC 116, which is implemented by 37 CFR 1.48.” To correct inventorship, one must:
- File a request to change inventorship that sets forth the desired inventorship;
- A statement from each person being added or deleted that the error in inventorship occurred without deceptive intent;
- An oath or declaration of the actual inventors;
- The fee; and
- Written consent of the assignee (where applicable).
In my opinion, the key to the requirements of correcting inventorship is that the incorrect inventorship has to have occurred without deceptive intent. So what does that mean? All I can really give are examples. Suppose that two inventors were working with one another, had a falling out, and one inventor decided to file the application without the other inventor being listed as an inventor because the first inventor did not want the second inventor to profit from the patent, that probably has a hint of deceptive intent involved. Allow me to provide a more common example – suppose the sole inventor of an application decides to add another inventor that is over the age of 65 simply to take advantage of the provisions of a petition to make special based on age, even though the over 65 “inventor” really had nothing to do with the invention. Clearly, the sole inventor was not being honest with the Patent Office, and in my opinion, there may be a bit of deceptive intent involved on this one as well.
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https://www.legalteamusa.net/how-to-correct-inventorship/
| 3.981593
| 17,053
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<urn:uuid:20122084-0347-44f5-b93d-7d725015ae19>
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Florence County Democratic Party v. Florence County Republican PartyAnnotate this Case
The issue before the Supreme Court in this case was declaratory relief in connection with an alleged improper certification of certain candidates by the Florence County Republican Party for the June 12, 2012, party primary. Plaintiffs Florence County Election Commission, David Alford, South Carolina State Election Commission, and Marci Andino contended these candidates were improperly certified because they failed to comply with the requirements for filing a Statement of Economic Interests (SEI) contained in S.C. Code Ann. 8-13-1356 (Supp. 2011), as interpreted by the Court in "Anderson v. S.C. Election Comm'n," Op. No. 27120 (S.C. Sup. Ct. filed May 2, 2012). The County Republicans argued the candidates were exempt under 8-13-1356(A) from the filing requirements of 8-13-1356(B). The Court granted declaratory relief to Plaintiffs and declared the County Republicans improperly construed the relevant statutory provisions to determine certain candidates were exempt from the requirements of 8-13-1356(B).
|
https://law.justia.com/cases/south-carolina/supreme-court/2012/27128.html
| 4.998792
| 51,118
|
<urn:uuid:5d1634f0-3070-4a40-85f1-d19a4dd2f1af>
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In the New York Times, Thomas Geoghegan argues that the current practice of the filibuster is unconsitutional:
It is instead a revision of Article I itself: not used to cut off debate, but to decide in effect whether to enact a law. The filibuster votes, which once occurred perhaps seven or eight times a whole Congressional session, now happen more than 100 times a term. But this routine use of supermajority voting is, at worst, unconstitutional and, at best, at odds with the founders’ intent.
Forty-one senators from our 21 smallest states — just over 10 percent of our
population — can block bills dealing not just with health care but with global warming and hazards that threaten the whole planet. Individual senators now use the filibuster, or the threat of it, as a kind of personal veto, and that power seems to have warped their behavior, encouraging grandstanding and worse.
In response to a similar article by Geoghegan, Prof. Wendy Schiller wrote the following in The New Republic (December 19 1994), right after the GOP took control of the Senate:
The Federalist Papers reveal that the greatest fear of the Founders was the oppression of the minority by the majority. The Founders established a complicated system of checks and balances precisely because they did not want an easy and efficient translation of majority will into government policy.
Now we have a situation where the Republicans claim to represent the majority will in this country. Would Geoghegan support a dilution of minority strength in the Senate today--post November 8, 1994? Democrats cannot forget that the very rules that enabled Alan Simpson to block health care reform will enable Ted Kennedy to block prayer in school. Which is exactly as James Madison thought it should be.
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http://www.bessettepitney.net/2010/01/different-views-on-filibuster.html
| 3.079577
| 28,376
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<urn:uuid:0ad3f07f-3dac-45b7-8c7c-486015755e73>
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Last Updated: June 12th, 2021
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Notices to Worldwide Casting regarding any alleged infringement on the Websites should be directed to Worldwide Casting 's General Counsel's Office at firstname.lastname@example.org.
You understand that you may not: (i) select or use a name of another person with the intent to impersonate that person; (ii) use the rights of any person without authorization; or (iii) use a name that Worldwide Casting, in its sole discretion, deems inappropriate. You agree that any information that you provide to the Websites, including but not limited to User Information, shall be true and accurate, and current, and you are responsible for updating such information to keep it true, accurate, and current. If you create a user account with the Websites, you accept responsibility for all activities that occur under your account or password and you agree you will not sell, transfer or assign your user account. You are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your computer so that others may not access any password-protected portion of the Websites (including the Premium Services) using your name, user name, or password in whole or in part.
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All administrative fees and expenses of arbitration will be divided equally between you and us, except that for claims of less than $500, you will be obligated to pay $25 and we will pay all other administrative costs and fees. In all arbitrations, each party will bear the expense of its own counsel, experts, witnesses, and preparation and presentation of evidence at the arbitration.
The arbitration will take place in your hometown area if you so notify Worldwide Casting in your notice of arbitration or within five (5) days following receipt of Worldwide Casting’s arbitration notice. In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in New York, New York, unless the parties agree to video, phone, or Internet connection appearances.
YOU AND WORLDWIDE CASTING AGREE THAT ANY ARBITRATION WILL BE LIMITED TO THE CLAIM BETWEEN WORLDWIDE CASTING AND YOU INDIVIDUALLY. YOU AND WORLDWIDE CASTING AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION WILL BE JOINED WITH ANY OTHER.
You and Worldwide Casting agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claims seeking to enforce or protect, or concerning the validity of, any of your or Worldwide Casting’s intellectual property rights; (ii) any Claim related to or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such courts’ jurisdiction in lieu of arbitration, provided that any such action or proceeding must be commenced no later than one year after the accrual of the Claim giving rise thereto.
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In no event will Worldwide Casting or any of ITS AFFILIATES be liable for any indirect, special, incidental, or consequential damages, losses, or expenses arising out of or relating to the use or inability to use the Websites, including without limitation damages related to any information received from the Websites, removal of content from the Websites, including profile information, any email distributed to any User or any linked web site or use thereof or inability to use by any party, or in connection with any termination of your subscription or ability to access the Websites, failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus or line or system failure, even if Worldwide Casting, or representatives thereof, are advised of the possibility of such damages, losses or expenses. UNDER NO CIRCUMSTANCES WILL WORLDWIDE CASTING’S AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE WEBSITES, EXCEED THE PRICE PAID BY YOU FOR YOUR ACCOUNT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, OR, IF YOU HAVE NOT PAID WORLDWIDE CASTING FOR THE USE OF ANY SERVICES, THE AMOUNT OF $25.00 OR ITS EQUIVALENT.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WORLDWIDE CASTING BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, AND/OR CONSEQUENTIAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM ANYONE’S RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SITE, OR TRANSMITTED TO OR BY ANY USERS OR ANY OTHER INTERACTIONS WITH OTHER REGISTERED USERS OF THE SITE OR SERVICES, WHETHER ONLINE OR OFFLINE. THIS INCLUDES ANY CLAIMS, LOSSES, OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO HAVE REGISTERED UNDER FALSE PRETENSES OR WHO ATTEMPT TO DEFRAUD OR HARM YOU.
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YOU ACKNOWLEDGE THAT ALL INFORMATION AND SERVICES PROVIDED IN CONNECTION WITH THE WEBSITES ARE COMPILED FROM AND DISTRIBUTED BY SOURCES THAT ARE OFTEN BEYOND THE CONTROL OF WORLDWIDE CASTING. WORLDWIDE CASTING MAKES NO REPRESENTATION OR WARRANTY THAT (I) THE WEBSITES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS, (II) THE WEBSITES WILL BE AVAILABLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE, (III) ANY RESULTS OR INFORMATION THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITES WILL BE ACCURATE, TIMELY, COMPLETE OR RELIABLE, (IV) ANY ERRORS OR DEFECTS IN THE WEBSITES WILL BE CORRECTED, OR (V) THE WEBSITES, NETWORKS OR SERVERS THAT MAKE THE WEBSITES AVAILABLE ARE FREE OF VIRUSES, CLOCKS, TIMERS, COUNTERS, WORMS, SOFTWARE LOCKS, TROJAN HORSES, TRAP DOORS, TIME BOMBS OR ANY OTHER HARMFUL CODES, INSTRUCTIONS, PROGRAMS OR COMPONENTS. OPERATION OF THE WEBSITES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF WORLDWIDE CASTING’S CONTROL INCLUDING, BUT NOT LIMITED TO, TELECOMMUNICATIONS NETWORK DISRUPTIONS. WORLDWIDE CASTING IS NOT RESPONSIBLE AND WILL HAVE NO LIABILITY FOR ANY FAILURES OF THE INTERNET OR ANY DATA OR TELECOMMUNICATIONS EQUIPMENT, SYSTEM OR NETWORK USED IN CONNECTION WITH THE WEBSITES. YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF THE USE, INABILITY TO USE OR PERFORMANCE OF ANY OF THE WEBSITES REMAINS WITH YOU TO THE MAXIMUM EXTENT PERMISSIBLE UNDER LAW. YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE WEBSITES (INCLUDING THE PREMIUM SERVICES) IS TO TERMINATE YOUR ACCOUNT AND DISCONTINUE USE OF THE WEBSITES.
You consent to receive communications from Worldwide Casting electronically. We will communicate with you by email or by posting notices on the Websites. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in “writing.” Notice will be deemed given 24 hours after it is posted on any of the Websites or sent via email. Alternatively, Worldwide Casting may still decide to provide notice by certified mail to the address provided in a User’s account information.
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https://www.worldwide-casting.com/tou
| 4.01375
| 1,012
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<urn:uuid:f5556c9f-58e8-4ade-b678-8f2706e96cec>
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By: Peter Bales. Esq.
Whether an employee’s LinkedIn contacts are a former employer’s trade secrets under California law is an issue open for discussion and further litigation following a recent Order from a Los Angeles Federal District Court. In Cellular Accessories for Less, Inc. v. Trinitas LLC (C.D. Cal., Sept. 16, 2014, CV 12-06736 DDP SHX) 2014 WL 4627090, Plaintiff Cellular Accessories for Less, Inc. (“Cellular”), a seller of mobile phone accessories, sued its former employee and the competitor who hired him (“Defendants”) on various claims, including a trade secret misappropriation claim under the California Uniform Trade Secrets Act (“CUTSA”). Id. at *1-2.
According to Cellular, the former employee took trade secrets with him to the competition including his LinkedIn contacts that he developed while he was employed at Cellular. Ibid. Defendants sought summary judgment, in part, on the ground that the LinkedIn contacts were not trade secrets as a matter of law because they were publicly available on the internet. (See CUTSA, Cal. Civ. Code § 3426.1 which requires that trade secrets not be “generally known to the public.”) The Court refused to decide that issue at the summary judgment stage:
Because the Court declines to take judicial notice of the functions of LinkedIn, and because the parties’ declarants do not make sufficiently clear whether and to what degree [the former employee’s] LinkedIn contacts were indeed made public (and whether this was done with Cellular’s explicit or implicit permission), there remain issues of material fact as to the LinkedIn information. Cellular Accessories for Less, Inc., 2014 WL 4627090 at *4.
The issue of whether an employee’s “contacts” as maintained on that employee’s own LinkedIn account are protectable trade secrets is not an issue that has been directly addressed by California courts and has been addressed by courts from other states only on rare occasions. See Eagle v. Morgan (E.D. Pa., Dec. 22, 2011, CIV.A. 11-4303) 2011 WL 6739448 ( “[N]either the telephone number nor the LinkedIn account connections qualify as trade secrets, as both are either generally known in the wider business community or capable of being easily derived from public information.”) While a number of courts point to LinkedIn as an example of publically available information that can be used to recreate internal contact lists that are claimed to be trade secrets (see Sasqua Group, Inc. v. Courtney (E.D.N.Y., Aug. 2, 2010, CV 10-528 ADS AKT) 2010 WL 3613855 report and recommendation adopted, (E.D.N.Y., Sept. 7, 2010, 10-CV-528 ADS ETB) 2010 WL 3702468; EMC Corp. v. Jeremy LeBlanc (D. Mass., Aug. 11, 2014, 14-CV-12524-IT) 2014 WL 3943091) it appears that at least some courts are not prepared to acknowledge LinkedIn’s public nature without admissible evidence of its functionality.
Given the public nature of LinkedIn, it is rare to see lawsuits where an employer alleges that an employee’s contacts maintained on that website constitute trade secrets. But the recent Cellular Order could give certain employers hopes that such a claim would survive to trial if the facts and governing agreements are substantially similar.
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https://www.buchalter.com/publication/are-linkedin-contacts-protectable-trade-secrets/
| 4.015095
| 4,822
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<urn:uuid:11ac9e49-0c71-460a-942b-cb18de8e1d12>
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FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY The Honorable
Thomas J. Prebil, Judge
R. Russell, Judge
Run Resources Corporation was sued by several minor
plaintiffs allegedly injured by toxic pollution released from
Doe Run's smelting facility in La Oroya, Peru. Doe Run
sued its insurer, St. Paul Fire and Marine Insurance Company,
for reimbursement of defense costs incurred during the
litigation of these claims. St. Paul denied any duty to
defend Doe Run, alleging coverage was barred under the
insurance policy's pollution exclusion. The circuit court
entered summary judgment in favor of Doe Run, finding the
pollution exclusion ambiguous and unenforceable. St. Paul
appeals. Because the pollution exclusion is not ambiguous,
coverage is barred and St. Paul has no duty to defend Doe
Run. The judgment is reversed, and this Court enters judgment
in favor of St. Paul pursuant to Rule 84.14.
is a Missouri corporation that produces lead and lead
concentrate through its mining, milling, and smelting
operations. While its primary business is in Missouri, Doe
Run also houses a metallurgical industrial complex in La
Oroya, Peru. In 2007, a class action lawsuit was filed
against Doe Run on behalf of individuals living in the
vicinity of the La Oroya facility, alleging bodily harm
caused by exposure to toxic emissions emanating from Doe
Run's facility. After the class action lawsuit was
voluntarily dismissed, more than 25 minor plaintiffs filed
individual lawsuits against Doe Run ("the Reid
lawsuits"). Each lawsuit raises identical allegations
that Doe Run released harmful substances, such as lead,
arsenic, cadmium, and sulfur dioxide, into the environment.
Plaintiffs claim these emissions created a dust that
permeated the surrounding air and water, "enter[ing] and
settle[ing] inside the minor plaintiffs' houses and
… on … [their] furniture, clothing, water, and
crops." Litigation in the Reid lawsuits is ongoing.
2010, Doe Run filed suit in St. Louis County Circuit Court
against four insurance companies, not including St. Paul,
seeking reimbursement of costs incurred defending against the
Reid lawsuits. Doe Run added St. Paul to the suit in 2012
under St. Paul's Commercial General Liability Policy. The
policy provided two terms of general liability insurance to
Doe Run, spanning from December 2005 to November 2007.
Subject to its terms, conditions, and exclusions, the policy
covers bodily injury and property damage arising during the
policy period for any event occurring outside the United
Paul denied it was legally obligated to defend Doe Run, and
both parties moved for summary judgment. St. Paul argued the
policy's pollution exclusion barred coverage of the
underlying allegations in the Reid lawsuits. St. Paul also
denied coverage under the policy's "other
insurance" provision, which eliminates any duty to
defend when the policy provides excess, rather than primary,
coverage. In the alternative, St. Paul argued if the court
did find a duty to defend, St. Paul need not reimburse Doe
Run for any costs incurred before March 2012, when Doe Run
first tendered to St. Paul the defense of the Reid lawsuits,
and it did not owe Doe Run any prejudgment interest. Doe Run
argued the pollution exclusion was ambiguous and, because
ambiguous policies must be construed against the insurer, St.
Paul could not avoid its duty to defend under the policy. Doe
Run also argued St. Paul was a primary insurer of Doe Run and
the policy's other insurance provision could have no
preclusive effect on coverage. The trial court entered
summary judgment in favor of Doe Run, finding the pollution
exclusion ambiguous and that St. Paul is a primary insurer of
Doe Run and, therefore, has a duty to defend.
a trial on damages, St. Paul filed a motion in limine to
prevent Doe Run from recovering any defense costs incurred
before it officially demanded defense from St. Paul. During
the trial, St. Paul filed a motion for judgment under Rule
73.01, again arguing it could not legally be required to
reimburse Doe Run for any costs incurred prior to Doe
Run's tender of defense. The trial court denied both
motions. It entered judgment against St. Paul and awarded Doe
Run approximately $1.75 million for unpaid defense costs plus
prejudgment interest. Two months later, the trial court
entered its final judgment, reiterating its core findings as
to St. Paul's duty to defend, St. Paul's breach of
that duty, and the damages owed. The court awarded Doe Run
$2.1 million in damages and prejudgment interest and $12, 000
in costs. St. Paul appeals.
Paul asserts four points on appeal, arguing the trial court
erred by: (1) finding St. Paul owes a duty to defend Doe Run
because the unambiguous pollution exclusion bars defense
coverage; (2) finding St. Paul has a duty to defend Doe Run
because the other insurance provision precludes defense
coverage; (3) awarding defense costs to Doe Run incurred
before the March 2012 tender of the Reid lawsuits to St.
Paul; and (4) awarding prejudgment interest to Doe Run.
Because this Court finds the pollution exclusion unambiguous
and enforceable, the trial court's judgment is reversed
and judgment is entered in favor of St. Paul pursuant to Rule
review of summary judgment is de novo. ITT
Comm'l Fin. Corp. v. Mid-Am. Marine Supply Corp.,
854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is
appropriate when there is no genuine dispute of material fact
and the movant is entitled to judgment as a matter of law.
case presents an issue of first impression for this Court:
whether an insurance policy's general pollution exclusion
bars defense coverage of a toxic tort claim arising from
alleged industrial pollution. Because the pollution exclusion
is unambiguous and bars coverage, St. Paul does not have a
duty to defend Doe Run.
Interpreting Insurance Contracts
interpretation of an insurance contract is a question of law
and is given de novo review. Mendenhall v. Prop.
and Cas. Ins. Co. of Hartford, 375 S.W.3d 90, 92 (Mo.
banc 2012). When interpreting an insurance policy, this Court
gives the policy language its plain meaning, or the meaning
that would be attached by an ordinary purchaser of insurance.
Gavan v. Bituminous Cas. Corp., 242 S.W.3d 718, 720
(Mo. banc 2008). If the policy language is clear and
unambiguous, it must be construed as written. Id. An
ambiguity exists only if a phrase is "reasonably open to
different constructions." Mendenhall, 375
S.W.3d at 92. Courts may not create an ambiguity when none
exists. Todd v. Mo. United Sch. Ins. Council, 223
S.W.3d 156, 160 (Mo. banc 2007).
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http://mo.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20171031_0001624.MO.htm/qx
| 4.994746
| 20,037
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<urn:uuid:d3970687-a1ed-4ca0-a258-5b905a3ca7ab>
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BREAK IN TRANSCRIPT
Ms. CHU. Mr. Speaker, we know that in too many states and districts across the country, students with the greatest needs are being taught by teachers with little or no training, including those enrolled in alternative route teacher preparation programs. That's why I am so glad this legislation requires the Department of Education to provide Congress--and the nation--with comprehensive information on the extent to which our highest-need students, including students with disabilities, English learners, students from rural communities, and low-income students, are being taught by teachers-in-training who are enrolled in alternative route programs, disaggregated by state and district, as well as by student subgroups. The data that will be included in this report should be made public and disseminated to parents and other interested parties so that is understandable and actionable. Specifically, the provision requires:
The Secretary of Education must submit a report to Congress by 12/31/13 that provides a comprehensive picture, with state-level and LEA data, on the extent to which the following categories of students are taught by alternative route teachers-in-training who are deemed ``highly qualified'' pursuant to 34 CFR 200.56(a)(2)(ii): students with disabilities, English learners, students in rural areas, and students from low-income families. 34 CFR 200.56(a)(2)(ii) is the regulation that allows individuals participating in alternative route programs but who have not yet completed their full state certification to be labeled ``highly qualified.'' This regulation was struck down by the Ninth Circuit in the Renee v. Duncan lawsuit, but written into statute in the December 2010 CR.
To produce the report required by this amendment, states and LEAs will be required to compile the data that they are already required to have under Section 1111(h)(6)(A) of NCLB regarding the professional qualifications of all their teachers, including: ``Whether the teacher has met State qualification and licensing criteria for the grade levels and subject areas in which the teacher provides instruction.
Whether the teacher is teaching under emergency or other provisional status through which State qualification or licensing criteria have been waived.
The baccalaureate degree major of the teacher and any other graduate certification or degree held by the teacher, and the field of discipline of the certification or degree.
This data will provide essential information to parents, to educators and to policy makers so that informed decisions can be made so that we can strengthen one of our nation's most valuable assets, our public schools. We will be in a much better position to look at our neediest students and our neediest rural and urban school districts and determine the extent to which well prepared teachers are or are not equitably distributed. Mr. Speaker, I look forward to receiving this important report from the Secretary on December 31, 2013.
BREAK IN TRANSCRIPT
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http://votesmart.org/public-statement/745070/continuing-appropriations-resolution-2013?flavour=mobile
| 4.480807
| 37,464
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<urn:uuid:40bcfbff-7cd2-4558-898e-3ae918ebbcab>
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I just generically refer to “Mylan” when I mean any one of several Mylan companies. The best information I’ve seen so far about which Mylan is which comes from their own in-house litigation counsel, Brian Cutherbertson. He filed a three page affidavit on August 13th of 2009 in the case of Boles v. Mylan. In it, he details the corporate makeup of Mylan:
5. There is no entity presently operating under the name Mylan Laboratories, Inc. In October, 2007, Mylan Laboratories Inc. officially changed its name to Mylan Inc. ("Mr').
6. MI is a holding company incorporated under the laws of the Commonwealth of Pennsylvania, with its principal place of business at 1500 Corporate Drive, Canonsburg, PA 15317.
7. MI is a shareholder of companies involved in the production of quality generic and specialty pharmaceutical products.
8. MTI is a wholly owned subsidiary of MI and is a corporation organized and existing under the laws of the State of West Virginia with its principal place of business in St. Albans, Vermont.
9. On January 28,2005,M TI received approval from the federal Food and Drug Administration (" FDA") for the manufacture of the Mylan Fentanyl Transdermal System ("MFTS''). A true and correct copy of the FDA approval letter issued on January 28,2005, is attached to this Affidavit as Exhibit No. 1.
10. Pursuant to an Abbreviated New Drug Application submitted by MTI, FDA issued approval for MTI's manufacture of the MFTS concluding that the product was safe and effective when used in accordance with its approved labeling.
11. Since obtaining FDA approval on January 28, 2005, MTI has manufactured the MFTS at its production facilities in St. Albans, Vermont. Distribution of the MFTS is handled through MPI, another wholly owned subsidiary of MI. MPI is a West Virginia corporation with its principal place of business in Morgantown, West Virginia.
12. I understand that the Original Petition filed on behalf of plaintiff in this matter claims that Ms. Vail died on July 12, 2006, allegedly as a result of complications stemming from her use of the MFTS.
13. The MFTS was, at all times, developed, formulated, and manufactured by MTI. Since FDA approval of the product, MPI has been the entity responsible for the distribution and sale of the MFTS.
14. The Original Petition alleges, at paragraph 2.8, that MI, MTI, MPI, Mylan Bertek Pharmaceuticals, Inc. ("MBP"), and VDL Laboratories, Inc., are collectively " engaged in [the] business of designing, manufacturing, marketing, distributing, selling, and otherwise placing into the stream of commerce the [MFTS]." This allegation is incorrect.
15. MBP is a registered Texas corporation that is a wholly owned subsidiary of MI. However, MBP ceased all operations in June of 2005.
16. Thus, while MBP exists as a registered Texas corporation, it has no offices, employees, manufacturing facilities, warehouse, or sales staff in Texas or elsewhere. Moreover, MBP was never involved in any aspect of the design, manufacture, marketing, distribution, or sale of the MFTS.
17. Because the operations of MBP ceased in 2005, this entity absolutely was not involved in the development, manufacture, distribution, or sale of the pharmaceutical product allegedly used by Plaintiff's Decedent in 2006.
18. The final entity named in the Original Petition is VDL Laboratories, Inc. VDL Laboratories Inc. is an Illinois corporation with its principal place of business in the State of Illinois. Like MTI, UDL Laboratories, Inc. had no role or involvement in any aspect of the design, manufacture, marketing, distribution, sale, or supply of the MFTS.
If there are any typos in the above, blame my OCR software, not Mr. Cuthbertson.
Hopefully this document will help plaintiffs’ attorneys figure out which corporate entity to sue in a fentanyl lawsuit.
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http://www.dangerousdrugs.us/2009/10/a-myriad-of-mylans-who-to-sue-in-a-fentanyl-case.html
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Lawmakers in North Dakota — where consumers can sue Big Tech and a judge recently exempted religious physicians from doing Obamacare “sex change” operations — are proposing a law allowing the state to ignore presidential executive orders if they don’t meet constitutional muster.
House Bill 1164, introduced for the 2021 session, says the “legislative management may review any executive order issued by the president of the United States which has not been affirmed by a vote of the Congress of the United States and signed into law as prescribed by the Constitution of the United States and recommend to the attorney general and the governor that the executive order be further reviewed.”
It also allows for a review of an executive order by the attorney general “to determine the constitutionality of the order and whether the state should seek an exemption from the application of the order or seek to have the order declared to be an unconstitutional exercise of legislative authority by the president.”
It states that “political subdivision” can implement such an order “that restricts a person’s rights or that the attorney general determines to be unconstitutional under subsection 1 and which relates to: a. pandemics or other health emergencies; b. the regulation of natural resources, including coal and oil; c. the regulation of the agriculture industry; d. the use of land; 3. The regulation of the financial sector… or; f. the regulation of the constitutional right to keep and bear arms.”
National File reported Republican state Rep. Sebastian Ertelt has introduced a separate bill that would affect the same fate to unconstitutional legislation by Congress.
His Committee on Neutralization of Federal Laws, comprised of state legislative leadership and appointees, would advise whether a given federal law or regulation is unconstitutional.
“Should the committee find that a law or regulation is unconstitutional, the North Dakota Legislature would pass a concurrent resolution on whether to nullify the transgressing law or edict,” the report said.
In North Dakota, Republicans are the majority in the Senate, 40-7, and in the House, 80-14.
South Dakota bill seeks power to reject presidential executive orders https://t.co/krkDMXAJSP
— Samantha Sullivan (@SamSullivan) February 1, 2021
Another bill would enable people who have been censored by Twitter and Facebook to sue the tech monopolies.
House Bill 1144 would “permit civil actions against social media sites for censoring speech.”
“If an interactive computer service provider restricts, censors or suppresses information that does not pertain to obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable subject matter, the interactive computer service provider is liable in a civil action for damages to the person whose speech is restricted, censored, or suppressed, and to any person who reasonably otherwise would have received the writing, speech, or publication,” the bill states.
It requires that the defendant be immune from civil liability under federal law, not be considered a publisher and have over 1 million users.
In North Dakota in January a federal judge issued a ruling that protects some doctors from an Obamacare requirement to perform gender “change” surgeries.
In a case brought by the Religious Sisters of Mercy, Catholic Benefits Association and others, U.S. District Judge Peter Welte in North Dakota granted a request to prevent the U.S. Department of Health and Human Services and the Equal Employment Opportunity Commission from enforcing the Obamacare requirement.
It forces health care providers to perform gender-reassignment surgeries.
“The court declares that HHS’s interpretation of Section 1557 that requires the Catholic plaintiffs to perform and provide insurance coverage for gender-transition procedures violates their sincerely held religious beliefs without satisfying strict scrutiny under the [Religious Freedom Restoration Act],” the judge said.
“Accordingly, the court permanently enjoins and restrains HHS, Secretary Azar, their divisions, bureaus, agents, officers, commissioners, employees, and anyone acting in concert or participation with them, including their successors in office, from interpreting or enforcing Section 1557 … or any implementing regulations thereto against the Catholic plaintiffs in a manner that would require them to perform or provide insurance coverage for gender-transition procedures, including by denying federal financial assistance because of their failure to perform or provide insurance coverage for such procedures or by otherwise pursuing, charging, or assessing any penalties, fines, assessments, investigations, or other enforcement actions.”
Content created by the WND News Center is available for re-publication without charge to any eligible news publisher that can provide a large audience. For licensing opportunities of our original content, please contact firstname.lastname@example.org.
This article was originally published by the WND News Center.
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UNITED STATES OF AMERICA
SECURITIES AND EXCHANGE COMMISSION
Securities Exchange Act of 1934
Release No. 41965 / September 30, 1999
File No. 3-10070
In the Matter of: )
) ORDER INSTITUTING ADMINISTRATIVE
Michael Paul Green, ) PROCEEDINGS, MAKING FINDINGS AND
) IMPOSING REMEDIAL SANCTIONS
Respondent. ) PURSUANT TO SECTIONS 15(b) AND
) 19(h) OF THE SECURITIES
) EXCHANGE ACT OF 1934
The Securities and Exchange Commission ("Commission") deems it
appropriate and in the public interest that administrative proceedings be
instituted pursuant to Sections 15(b) and 19(h) of the Securities Exchange Act
of 1934 ("Exchange Act") against Michael Paul Green
In anticipation of the institution of these administrative proceedings, Green
has submitted an Offer of Settlement, which the Commission has determined to
accept. Solely for purposes of these proceedings and any other proceedings
brought by, or on behalf of, the Commission, or to which the Commission is a
party, and without admitting or denying the findings herein, except as to the
jurisdiction of the Commission over him and the subject matter of these
proceedings and the entry of the permanent injunction as described in paragraph
II.D. below, which he admits, Green consents to the entry of this Order
Instituting Administrative Proceedings, Making Findings and Imposing Remedial
Sanctions Pursuant to Sections 15(b) and 19(h) of the Securities Exchange Act of
Accordingly, IT IS HEREBY ORDERED that public administrative
proceedings be, and hereby are, instituted against Green pursuant to Sections
15(b) and 19(h) of the Exchange Act.
On the basis of this Order and Green's Offer of Settlement, the Commission
A. Green, age 31 and a resident of Edison, New Jersey, was, at all relevant
times, an associated person of a broker-dealer registered with the Commission
pursuant to Section 15(a) of the Exchange Act.
B. On May 26, 1999, the Commission filed a complaint in the United States
District Court for the Southern District of New York captioned S.E.C. v.
Cassano, et al, Civil Action No. 99-CV-3822 (LAK)(S.D.N.Y.) alleging, among
other things, that, on June 2, 1995, Green engaged in insider trading in
violation of Sections 10(b) and 14(e) of the Exchange Act and Rules 10b-5 and
14e-3 thereunder in connection with transactions in the securities of Lotus
Development Corporation ("Lotus").
C. Specifically, the Commission alleged that: (i) Green purchased five June
$30 call options and 75 shares of Lotus common stock on June 2, 1995, while
possessing material nonpublic information relating to a plan by International
Business Machines Corporation ("IBM") to commence a tender offer for
Lotus, which he knew, or was reckless in not knowing, came from an IBM employee
working on the deal; (ii) Green tipped another individual who also purchased
shares of Lotus common stock; and (iii) on June 5, 1995, when IBM publicly
announced its intention to commence a tender offer for all of Lotus' outstanding
common stock, Green and his tippee realized an aggregate profit of $17,935.
D. On June 2, 1999, a final judgment was entered against Green by consent
which: (i) permanently enjoined Green from violating Sections 10(b) and 14(e) of
the Exchange Act and Rules 10b-5 and 14e-3 thereunder; (ii) held Green liable
for disgorgement and prejudgment interest in the amount of $22,968; and (iii)
imposed a civil penalty of $17,935.
In view of the foregoing, the Commission deems it appropriate and in the
public interest to impose the sanctions specified in Green's Offer of
Accordingly, IT IS HEREBY ORDERED that Michael Paul Green be, and
hereby is, barred from association with any broker or dealer.
By the Commission.
Jonathan G. Katz
--The findings herein are not binding on anyone
other than the Respondent.
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https://www.sec.gov/litigation/admin/34-41965.htm
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Court Dismisses Class Action Against Apple Over Its App Developers’ Information Collection Practices – Pirozzi v. Apple
[Post by Venkat Balasubramani with comments from Eric]
Pirozzi v. Apple, 2012 WL 6652453 (N.D. Cal.; Dec. 20, 2012)
This is one of several putative class actions over the information collection practices of apps. I previously covered how the lawsuit against Path survived: “Class Action Against Path Over Cellphone Address Book Access Keeps Going”. Judge Koh also whittled down the lawsuit against Apple over its iPhone app privacy practices: “Judge Koh Whittles Down iPhone App Privacy Lawsuit.” This lawsuit seems to overlap with both and is dismissed, albeit with leave to amend.
Plaintiff brought claims under California’s unfair competition law, for false advertising, for violations of the Consumer Legal Remedies Act, for negligence and unjust enrichment. Although it’s unclear what apps she is complaining about, the following apps are mentioned in the complaint: Path, Angry Birds, Cut-the-Rope, Twitter, Facebook, LinkedIn, Gowalla,Foodspotting, Instagram, Foursquare, Beluga, Yelp!, Hipster and Kik Messenger.
Standing: The court dismisses on the basis of standing, but there were two interesting aspects to the standing discussion.
First, plaintiff cited to a bunch of somewhat persuasive marketing copy about how Apple had adequate restrictions in place regarding the collection of information by app developers. However, it was unclear as to how exactly plaintiff was induced to make a purchase in reliance of these alleged promises. The court finds that the pleadings are unduly vague about what plaintiff was induced to purchase (or download) and what statements induced the purchases or downloads.
Second, the court also notes that the pleading suffers from deficiencies regarding harm. If information was improperly collected by app developers, so what? Citing to Hernandez v. Path and Krottner v. Starbucks, the court says that future risk of identity theft is insufficient to allege harm. This leaves economic harm, and here plaintiff’s allegations were again unduly vague. In a short sentence, the court notes that the “personal information as inherently valuable” argument will be unlikely to carry the day. Still, the court grants leave to amend.
Sidenote: WSJ recently published a story about merchants offering varying prices to individuals based on targeting. I wonder if this will surface in a future standing argument. I’m guessing it will.
Section 230: I am sure Prof. Goldman will have more to say about the Section 230 issue, but here’s my take. To the extent plaintiff tries to hold Apple liable for any harm effected via apps, this will run squarely into Section 230. Apple’s only role in making the apps available is a publisher or distributor. (See for example, Green v. AOL, where claims based on transmission of a virus via chatroom was held to be immunized by Section 230.) There is, of course, the promissory estoppel (contractual) carveout to Section 230 as recognized in Barnes v. Yahoo!. The claims allowed by the 9th Circuit in Barnes were fairly narrow, and it’s unclear as to whether any alleged contractual representations by Apple should open the door to things like CLRA claims. At least some of plaintiff’s claims should have been dismissed under Section 230 (the negligence and negligent misrepresentation claims). As to the statutory claims centered around misrepresentation, I suspect they are a bit trickier. Although the misrepresentation claims may have problems on the merits on their own, the applicability of Section 230 to those claims is a bit tougher in my estimation.
Issues on the Merits: The court also points out a few other issues with the pleadings:
1. Any claims alleging misrepresentation (unfair competition; false advertising; consumer legal remedies act) sound in fraud and therefore have to be pled with particularity. Plaintiff fails to do so.
2. Her CLRA claims are unclear as to whether they are directed at the services (the apps or the app store) or the goods (the devices). The court dismisses but with leave to amend. Applicability of the CLRA to the app store is less than clear, and the plaintiff has obvious problems alleging CLRA claims with respect to the devices (which on their own, functioned as promised).
3. The negligence claims fails. As articulated in Judge Koh’s ruling: there is no duty to protect someone’s information vis a vis third parties, absent a special relationship. (Again, this would have been a good candidate to nuke on Section 230 grounds.)
4. The court also says that the unjust enrichment claim fails because plaintiff does not identify how exactly Apple has been enriched by the information collection practices of the app developers.
In theory, plaintiff should have a hard time holding Apple liable for the information collection practices of its developers. The fact that the apps in question are free should make it particularly difficult. Because the apps are free, it’s difficult to demonstrate economic harm based on download of the apps, and plaintiff is left to argue informational harm, which hasn’t gained much traction in courts (absent misuse of the data that results in economic harm). With respect to misrepresentations that induced plaintiff to purchase any devices, plaintiff’s qualm isn’t really with the devices–it’s with the app store. I don’t know that the law permits you to argue you are entitled to a refund of the price of your device just because a rogue app or two happened to be out there.
On the other hand, there’s some troubling marketing copy that ended up out there. It may have been wise for Apple to issue disclaimers regarding its inability to control the conduct of app developers who use its platform. As to whether it could stretch the case out, it’s tough to tell, but the absence of that language would certainly have made the lawsuit an easier battle for Apple.
Starbucks Data Breach Plaintiffs Rebuffed by Ninth Circuit — Krottner v. Starbucks
The plaintiffs allege that Apple offers a certification program for apps in its app store, so I understand in concept how Apple might be responsible for failed certifications. Still, I get nervous every time I see plaintiffs use a defendant’s marketing representations or site disclosures as a way of getting around what should fundamentally be a 47 USC 230 immunity. The doctrinal interplays between first-party marketing representations and liability for third-party conduct under 47 USC 230 remains a legally chaotic one, and I hope the judge understands the problems with Section 230 workarounds and is appropriately sensitive to that issue.
The opinion only references 47 USC 230(c)(1), even though this seems more like a 230(c)(2) case. The plaintiffs are suing Apple for doing a poor job of filtering apps out of its app store, and that’s exactly what 230(c)(2) covers.
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https://blog.ericgoldman.org/archives/2012/12/court_dismiss_c.htm
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In 2012 the Supreme Court held that a mandatory sentence of life without parole for a juvenile offender violates the 8th amendment. Miller v. Alabama, 132 S.Ct. 2455 Google Scholar. But what about people already servicing life sentences for crimes committed when they were juveniles? Should Miller be applied retroactively?
The Michigan Supreme Court is now considering the cases of three people with life sentences for crimes committed when they were 14 and 16.
The offenders are being supported by unusual amici: kids from a Catholic high school in Ann Arbor. Matilyn Sarosi, who is 16 herself, prepared an amicus brief. She also spoke to her classmates and wrote letters to their parents, eventually getting 452 students to sign on in support. See Ann Arbor Teen's Legal Brief: Juvenile Lifers Deserve a 2nd Chance, Detroit Free Press, Feb. 17, 2014; High Schooler Submits Amicus Brief in Juvenile-Lifer Case to Michigan Supreme Court, ABA J. (online), Feb. 20, 2014.
The brief argues from the students' personal experience of adolescent impulsiveness, scientific research on juvenile development, and their Catholic faith in the potential for redemption. The cases (People v. Carp, People v. Davis, and People v. Eliason) are being argued today. Links to other briefs are here.
Here in Washington, Prof. Kim Ambrose and law student Dylan Tessier represented a young man who was sentenced to 1,111 months (don't want to do the arithmetic? it's 92 1/2 years) for a crime he committed when he was a juvenile—effectively a life sentence. Their brief is here. Division II remanded to the trial court. In re Personal Restraint Petition of Guadalupe Solis-Diaz (2012)(unpublished). This week, the trial judge again imposed the same sentence. 92-Year Sentence Remains for Former Centralia Gang Shooter, Chronicle (Lewis County), March 4, 2014.
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http://gallagherlawlibrary.blogspot.com/2014/03/life-sentences-for-juvenile-offenses.html
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921 F2d 122 Kensington Rock Island Limited Partnership v. American Eagle Historic Partners M
921 F.2d 122
KENSINGTON ROCK ISLAND LIMITED PARTNERSHIP, John D.
Rappaport, and Rappaport Companies, Inc.,
AMERICAN EAGLE HISTORIC PARTNERS, American Eagle Historic
Properties, Inc., and Jack M. Lee, Defendants-Appellants.
United States Court of Appeals,
Argued Oct. 25, 1990.
Decided Dec. 27, 1990.
Frederick P. Kopp, Peter H. Lousberg, Lousberg, Kopp & Bonnett, Rock Island, Ill., for plaintiffs-appellees.
John K. Kallman, David N. Missner, Stanley J. Adelman, James H.M. Sprayregen, Rudnick & Wolfe, Chicago, Ill., William R. Kelly, Kelly & Brady, Peoria, Ill., for defendants-appellants.
Before COFFEY and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge.
In this diversity case arising under Illinois law, the defendants-appellants, together, "American Eagle", reneged on two contracts for the purchase and development of land. On summary judgment, the District Court found American Eagle liable for breach of the contracts and awarded damages totalling $560,385.85. American Eagle now contests various aspects of this damage award. Its appeal is a nonstarter, however, because it failed to present to the District Court the main arguments that it raises on appeal. We affirm.
Under a "Purchase Agreement" dated April 30, 1987, American Eagle agreed to buy certain land, personal property, and contract rights from the plaintiff-appellee Kensington Rock Island Limited Partnership ("Kensington") for a total price of $600,000. As part of this contract, American Eagle gave Kensington a promissory note in the principal amount of $50,000 as "earnest money", payable on the closing date. Also under this contract, American Eagle agreed to pay $165,000 to the plaintiff-appellee, Rappaport Companies, Inc. ("Rappaport"), apparently for its work in setting up the deal. By a separate "Development Agreement" of the same date, American Eagle hired Rappaport to oversee the commercial and residential development of the property. Rappaport's fee depended in part on the success of the project, but it was entitled to at least $168,125 under the Development Agreement in addition to its closing fee under the Purchase Agreement.
The closing date under the Purchase Agreement came, was extended, and passed with American Eagle unable to come up with the purchase price. This suit followed. On Kensington and Rappaport's motion, the District Court entered summary judgment in their favor, awarding damages of $227,260.85 to Kensington and $333,125.00 to Rappaport. On appeal, American Eagle disputes various portions of these damages. This Court has jurisdiction to review the District Court's final decision under 28 U.S.C. Sec. 1291. Because the District Court's award came on summary judgment, we review its conclusions de novo, except as noted. See La Preferida, Inc. v. Cerveceria Modelo, S.A., 914 F.2d 900, 905 (7th Cir.1990).
The Award to Kensington
The District Court's award of damages to Kensington was as follows:
Consequential damages (real estate taxes, utilities, insurance, $ 90,274.47 and interest expense that Kensington incurred after the closing date) Principal amount of the promissory note that American Eagle gave 50,000.00 to Kensington as "earnest money" Interest and late fees on the promissory note 11,138.98 Attorneys' fees, as provided in the promissory note 40,847.40 Closing fee provided in the Purchase Agreement's allocation of the 35,000.00 total $600,000 purchase price ----------- Total $227,260.85 ----------- -----------
American Eagle's waiver of its arguments starts with the first item of damages in the above table. American Eagle states in its main brief that it does not contest the "consequential damages that were awarded. Specifically, these include the award to Kensington of real estate taxes, insurance premiums, utilities costs, and interest." Brief of Defendants-Appellants, p. 13 n. 3.
The next three items of damage in the table arise from the promissory note that American Eagle gave as "earnest money"--$50,000.00 in principal, $11,138.98 in interest and late fees, and $40,847.40 in legal fees, all payable under the note. The Illinois rule is clear that Kensington is entitled to this earnest money. Upon "default by the buyer, ... [any] earnest money or down payment may be retained in full by the seller without reference to the amount of actual damages which may have resulted ... from the buyer's default." Bamberg v. Griffin, 76 Ill.App.3d 138, 31 Ill.Dec. 708, 713, 394 N.E.2d 910, 915 (1979), quoting Pruett v. La Salceda, Inc., 45 Ill.App.3d 243, 3 Ill.Dec. 917, 920, 359 N.E.2d 776, 779 (1977).
The only question here is the amount of the legal fees. We review the amount of the District Court's award of legal fees for abuse of discretion. See, e.g., Illinois Bell Telephone Co. v. Haines and Co., 905 F.2d 1081, 1089 (7th Cir.1990). The District Court's award of $40,847.40 is a hefty amount for collection of a $50,000 note. This fee makes sense, however, because American Eagle defended against the note by arguing fraudulent inducement and lack of consideration, thus putting the parties' entire relationship into dispute. See, e.g., Carefree Foliage, Inc. v. American Tours, Inc., 153 Ill.App.3d 190, 106 Ill.Dec. 248, 254, 505 N.E.2d 1039, 1045 (1987) (holding it error for the trial court to award a noteholder less than its full cost of litigating a suit in which the maker of the note challenged the validity of the underlying purchase agreement). We find no abuse of discretion in the District Court's award.
The last item of damage is the "closing fee". The Purchase Agreement authorizes Kensington to allocate $35,000 of the total purchase price to this fee. American Eagle contends that this contractual allocation was only for tax purposes, and so is not "conclusive proof" of damage. Brief of Defendants-Appellants, p. 15. American Eagle is correct that the contractual allocation would not be conclusive for summary judgment purposes if opposed by evidence that would allow the trier of fact to decide in American Eagle's favor on the point. See La Preferida, Inc. v. Cerveceria Modelo, S.A., 914 F.2d 900, 905 (7th Cir.1990). But American Eagle did not present any evidence on this issue, so it has no basis to attack the District Court's decision.
American Eagle's other argument is that the District Court should not have awarded the $35,000 closing fee as damages because the $50,000 "earnest money" promissory note acted as liquidated damages and so caps the total recovery. This argument fails because American Eagle presented it to the District Court unintelligibly, if at all.1 Arguments raised in the District Court in a "perfunctory and underdeveloped ... manner" are waived on appeal. Nat'l Metalcrafters v. McNeil, 784 F.2d 817, 825 (7th Cir.1986). "[A] party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered. If it does not do so, and loses the motion, it cannot raise such reasons on appeal." Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir.1983). American Eagle did not adequately inform the District Court of its argument that the earnest money deposit should cap the damages in this case, and cannot raise that argument now.
The Award to Rappaport
The District Court awarded $333,125 to Rappaport as damages under the Purchase Agreement and Development Agreement. American Eagle presents two arguments concerning this award. First it claims that Rappaport failed to mitigate. But failure to mitigate damages is an affirmative defense under Illinois law. See, e.g., Toushin v. Gonsky, 77 Ill.App.3d 508, 32 Ill.Dec. 743, 749, 395 N.E.2d 1124, 1130 (1979). American Eagle did not plead this defense in its answer, and it did not present the District Court with any evidence on the subject. Even on appeal, American Eagle makes only conclusory statements that Rappaport could have mitigated, without stating how or to what extent. American Eagle has again waived its position. Second, American Eagle argues that the District Court's award should have been discounted to the net present value of the payments that Rappaport would have received under the contracts. Here too, American Eagle failed to raise the argument in the District Court, and it is waived now. In sum, American Eagle has waived its challenges to the District Court's damage award to Rappaport.
A party who prevails in court should receive relief--not further litigation in which the opposing side presents new arguments that were available from the start. Further, courts lack the resources to allow a party to raise new issues when it has already had a full, fair opportunity to present its case. We would do an injustice to Kensington and Rappaport (who have waited more than three years for this case to reach its current position) and litigants in other cases if we were to allow American Eagle to start this case over again by presenting new arguments on appeal.2 If American Eagle has been ill-served by any of its lawyers, its recourse is a suit for malpractice. See Deppe v. Tripp, 863 F.2d 1356, 1360-61 (7th Cir.1988). For the reasons stated, the judgment of the District Court is AFFIRMED.
American Eagle's argument to the District Court on this issue consisted of a single, poorly worded statement, in a section on another point, used as support for an irrelevant proposition. At the end of a section of its memorandum to the District Court dealing with the purported lack of consideration for the promissory note, American Eagle cited an unpublished case for the principle that "vendors ... retaining earnest money deposited by purchasers as liquidated damages ... could not recover damages from purchasers for breach of contract." American Eagle's Response to Itemization of Damages Due, p. 2. Standing alone, this statement is on point, although our ellipses aid the clarity considerably. In context, however, this statement did not mean that Kensington's damages had to be capped at the amount due under the promissory note. Rather, American Eagle used the statement to argue that Kensington had to choose between (1) retaining the earnest money or (2) proving the fair market value of the property at issue. Id., at p. 3. This argument was a non sequitur because Kensington had already made the choice that American Eagle proposed. Kensington's position was that it could keep the earnest money as a substitute for proving market value damages--while proving its other damages separately. Regardless of the merit of Kensington's position, American Eagle's response failed reasonably to apprise the District Court that Kensington's total damages should be capped by the amount of the earnest money deposit
We note a tension in this Circuit's decisions as to whether the doctrine of "plain error" applies in civil cases under any circumstances. See Kendra Oil & Gas, Inc. v. Homco, Ltd., 879 F.2d 240, 242 (7th Cir.1989) (stating, "No doctrine of 'plain error' protects litigants in civil cases ... unless the error concerns subject-matter jurisdiction"); Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (stating, "No doctrine of 'plain error' protects parties from the consequences of their decisions in civil litigation"); but see Deppe v. Tripp, 863 F.2d 1356, 1367-68 (7th Cir.1988) (finding no error but concluding that the doctrine "may be available to preserve evidentiary errors for appellate review if a moving party can demonstrate that exceptional circumstances exist, that substantial rights are involved, and that a miscarriage of justice will result"); Walker v. Maccabees Mutual Life Ins. Co., 753 F.2d 599, 602 (7th Cir.1985) (finding no error and stating that "[o]nly in most exceptional circumstances will we allow a civil appellant to make a nonjurisdictional argument for the first time on appeal"). In the present case, this tension in the Circuit's decisions makes no difference. American Eagle has not presented any facts that would support use of the doctrine, even if it is available in some exceptional cases
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United States District Court, District of Montana, Billings Division
February 6, 2015
LEWIS PRICE III, Plaintiff,
CITY OF RED LODGE, MONTANA, et al., Defendants.
ORDER DENYING MOTION FOR EMERGENCY INJUNCTION AS MOOT
SUSAN P. WATTERS, United States District Judge
Pending is Plaintiff Lewis Price's "Motion for Emergency Injunctive Relief and Notice of Intent to Apply for Writ of Madamus." (Doc. 26.) Mr. Price alleges that a Temporary Order of Protection listing eleven names and two businesses was entered into the NCIC as a Permanent Order of Protection on or about April 14, 2005 or May 5, 2005 without affording him due process of law. He moves the Court to order the immediate removal of all thirteen entries that are "illegally entered" into NCIC. (Doc. 26 at 2, ¶ 7.)
Defendants have responded that Mr. Price's motion is moot because the names of the 11 individuals and the two businesses have been removed by the Carbon County Sheriffs Office. (Doc. 27, at 4.) Defendants have presented the Affidavit of Janet Maddox, a dispatcher with the Carbon County Sheriffs Office. Ms. Maddox testified that on August 13, 2014 she cleared Lewis Price Ill's information in the NCIC database. (Maddox Affidavit, Doc. 28-1 at ¶ 4.)
Mr. Price did not reply to Defendants' responses and has not disputed Ms. Maddox's claim that the information has been cleared.
Under Article III of the Constitution, the jurisdiction of a federal court depends on the existence of a "case or controversy"; without a case or controversy a claim is moot. Pub. Util Comm'n of State of Cat. v. FERC, 100 F.3d 1451, 1458 (9th Cir. 1996). A claim is considered moot if it is no longer a present and live controversy or if no effective relief can be granted. Mitchell v. Dupnik, 75 F.3d 517, 527-28 (9th Cir. 1996). Questions of mootness regarding injunctions are viewed "in light of the present circumstances." Mitchell, 75 F.3d at 528.
In light of Defendants' undisputed evidence that the permanent order of protection at issue has been cleared from the NCIC database, Mr. Price's request for an emergency injunction is moot.
IT IS ORDERED that Mr. Price's "Motion for Emergency Injunctive Relief and Notice of Intent to Apply for Writ of Madamus" (Doc. 26) is DENIED AS MOOT.
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December 4, 2012: Pediatric Oncology Subcommittee of the Oncologic Drugs Advisory Committee Meeting Announcement
|CDER||December 4, 2012||8:00 a.m. to 5:30 p.m.||FDA White Oak Campus|
The Great Room (Rm. 1503)
White Oak Conference Center
10903 New Hampshire Avenue
Silver Spring, Maryland
The subcommittee will receive a presentation on pediatric provisions mandated by the Food and Drug Administration Safety and Innovation Act. This will be an awareness presentation and there will not be a formal Committee discussion or recommendation. In addition, information will be presented regarding pediatric development plans for four products that are in development for an adult oncology indication. The subcommittee will consider and discuss issues relating to the development of each product for pediatric use and provide guidance to facilitate the formulation of written requests for pediatric studies, if appropriate. The four products under consideration are: (1) Trametinib, application submitted by GlaxoSmithKline, LLC; (2) TH-302, application submitted by Threshold Pharmaceuticals, Inc.; (3) volasertib (BI 6727), application submitted by Boehringer Ingelheim Pharmaceuticals, Inc.; and (4) blinatumomab (MT 103), application submitted by Amgen Inc.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA’s Web site after the meeting.
- Written submissions may be made to the contact person on or before November 19, 2012.
- Oral presentations from the public will be scheduled between approximately 9:15 a.m. to 9:30 a.m., 11:15 a.m. to 11:30 a.m., 2:05 p.m. to 2:20 p.m., and 4:10 p.m. to 4:25 p.m. Those desiring to make formal oral presentations should notify the contact person and submit a brief statement of the general nature of the evidence or arguments they wish to present, the names and addresses of proposed participants, and an indication of the approximate time requested to make their presentation on or before November 8, 2012.
Time allotted for each presentation may be limited. If the number of registrants requesting to speak is greater than can be reasonably accommodated during the scheduled open public hearing session, FDA may conduct a lottery to determine the speakers for the scheduled open public hearing session. The contact person will notify interested persons regarding their request to speak by November 9, 2012.
CDER plans to provide a free of charge, live webcast of the December 4, 2012 meeting of the Pediatric Oncology Subcommittee of the Oncologic Drugs Advisory Committee. While CDER is working to make webcasts available to the public for all advisory committee meetings held at the White Oak campus, there are instances where the webcast transmission is not successful; staff will work to re-establish the transmission as soon as possible. Further information regarding the webcast, including the web address for the webcast, will be made available at least 2 days in advance of the meeting at the following website: 2012 Meeting Materials, Oncologic Drugs Advisory Committee.
CDER plans to post archived webcasts after the meeting, however, in cases where transmission was not successful, archived webcasts will not be available
- Minh Doan, Pharm.D.
Center for Drug Evaluation and Research
Food and Drug Administration
10903 New Hampshire Avenue
Silver Spring, MD 20993-0002
- FDA Advisory Committee Information Line
(301-443-0572 in the Washington DC area)
Please call the Information Line for up-to-date information on this meeting.
A notice in the Federal Register about last minute modifications that impact a previously announced advisory committee meeting cannot always be published quickly enough to provide timely notice. Therefore, you should always check the agency’s Web site and call the FDA Advisory Committee Information Line to learn about possible modifications before coming to the meeting.
Persons attending FDA’s advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets. FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Minh Doan at (301) 796-9001 at least 7 days in advance of the meeting.
Information regarding special accommodations due to a disability, visitor parking and transportation may be accessed at: Public Meetings at the White Oak Campus.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at Public Conduct During FDA Advisory Committee Meetings for procedures on public conduct during advisory committee meetings.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app.2).
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COUNTY OF PLACER
BOARD OF SUPERVISORS
TUESDAY, DECEMBER 11, 2007
F.C. “Rocky” Rockholm, District 1 Thomas Miller, County Executive
Robert Weygandt, District 2 Anthony J. La Bouff, County Counsel
Jim Holmes, District 3, Vice Chairman Rich Colwell, Chief Assistant County Executive
Kirk Uhler, District 4 Mike Boyle, Assistant County Executive
Bruce Kranz, District 5, Chairman Holly Heinzen, Assistant County Executive
Ann Holman, Clerk of the Board
County Administrative Center, 175 Fulweiler Avenue, Auburn, CA 95603
FLAG SALUTE – Led by Supervisor Rockholm.
STATEMENT OF MEETING PROCEDURES - Read by Clerk.
PUBLIC COMMENT – Deborah Dahl, California Disability Network Advocacy Group, stated she will be sending a letter to the Board regarding the Department of Mental Health and mental health services. Major Ed Loomis, Salvation Army, thanked the Board and Placer County employees, for their financial generosity with the Auburn Thanksgiving Dinner. Jim Durfee, Facility Services Director, announced the Community Development Resource Center was selected as the best civic institutional building built in California last year by McGraw Hill Magazine and California Construction Magazine. Rick Ward, Commander, Auburn-Newcastle California Highway Patrol, provided an update on the Placer County Vehicle Theft Task Force.
SUPERVISOR’S COMMITTEE REPORTS – Supervisor Rockholm announced the Mental Health Drug & Alcohol Advisory Board has vacancies and interested parties should contact Maureen Bauman. Supervisor Uhler advised Nevada County announced its intention to withdraw from the Golden Sierra Job Training Agency, Joint Power Authority, and discussed potential impacts. Supervisor Weygandt spoke about the Sierra-Nevada Conservancy distributing its first block of money and that Placer County was the first county in the State to pass a resolution in support of creating the Agency.
1. BOARD OF SUPERVISORS - Presented recipients of the Commemorative Coin awards with their coin. Recipients were: District 1, Carol Garcia, Bill and Norma Santucci; District 2, Stacie Longmire (in memory of her son Michael); District 3, Ruth Alves and E.J. Ivaldi; District 5, George Lay and Sandra Poulson (Posthumous Award). The recipients were personally chosen by the Supervisor for their district in recognition for either their acts of heroism, longstanding community service, or exceptional acts that have dramatically improved or impacted people’s lives.
2. COUNTY EXECUTIVE/ECONOMIC DEVELOPMENT – Resolution 2007-394 adopted reorganizing the Economic Development Board. MOTION Holmes/Rockholm/Unanimous
3. COUNTY CLERK/RECORDER – Public hearing closed. Ordinance 5496-B adopted amending Chapter 2, Section 2.116.150, relating to various County Clerk-Recorder fees and fee changes.
4. PUBLIC WORKS – Public hearing to consider approving an Engineering and Traffic Survey Study and Ordinance 5497-B adopted amending Chapter 10, Vehicles and Traffic, Article 10.04, regarding setting speed limits on several County roads as amended.
MOTION Rockholm/Holmes/Unanimous to close the public hearing and Ordinance 5497-B, adopted amending Exhibit A, Item 31a, Vineyard Road, from Crowder Lane to Cook-Riolo Road, from the proposed 40 miles per hour speed limit, with no radar enforcement, to 45 miles per hour, with radar enforced.
5. COMMUNITY DEVELOPMENT RESOURCE AGENCY/PLANNING – Public hearing closed regarding agricultural preserves:
a. Liberty Ranch Big Hill Preserve (PAGP 20070687) - Resolution 2007-396 adopted approving an Open Space Agricultural Preserve Contract (Super Williamson Act), located in the Auburn area. MOTION Rockholm/Weygandt/Unanimous
b. Brenner Ranch Agricultural Preserve 133 (PAGP 20070619) - Resolution 2007-397 adopted approving an amendment to include an additional 30-acre parcel, located in the Lincoln area.
6. HEALTH & HUMAN SERVICES/ENVIRONMENTAL HEALTH/FEE INCREASES
a. Public hearing to consider revising the permit, annual facility monitoring and inspection fees, as well as one-time construction plan check and inspection fees, in order to cover the cost of services provided by the Environment Health Division of the Health & Human Services Department.
b. Approve two resolutions revising Environmental Health fees as contained therein.
c. Adopt an ordinance amending Chapter 2, Section 2.116.100 to remove references to current Environmental Health fees, which will be set by resolution.
Approved staff recommendation to withdraw and present at a meeting in February 2008.
7. COUNTY EXECUTIVE/EMERGENCY SERVICES – Received an update on Placer County’s fire response to Southern California/San Diego fires.
8. COUNTY EXECUTIVE/2008 LEGISLATIVE/REGULATORY PLATFORM:
a Adopted the 2008 Legislative/Regulatory Platform for Placer County, directed staff to pursue action items and support or oppose legislation in accordance with the Platform. Authorized staff to coordinate an advocacy program to support the goals and objectives of the 2008 platform.
b. Approved Federal Advocacy Contracts, in the amount of $186,000, with the firms of Holland & Knight, LLP ($144,000) and Van Scoyoc Associates ($42,000) for a 12-month period beginning January 1, 2008; approved State Advocacy Contracts, in the amount of $101.407, with the firms of Peterson Consulting, Inc., ($46,411) Conservation Strategy Group ($24,996) and Platinum Advisors, LLC ($30,000) for the same period of time. MOTION Rockholm/Weygandt/Unanimous
9. COMMUNITY DEVELOPMENT RESOURCE AGENCY/PLANNING – Received an update on Waddle Ranch.
10. BOARD OF SUPERVISORS/PLACER COUNTY CONSERVATION PLAN (PCCP) - Supervisor Weygandt and Supervisor Uhler updated the Board on the status of the PCCP Ad Hoc Committee, deliberations since the Board took action to form the Ad Hoc Committee and approve a map for discussions with the Resource Agencies on January 23, 2007.
11. ADMINISTRATIVE SERVICES/PROCUREMENT – Resolution 2007-395 adopted authorizing the award of contract to Foresthill Telephone Company, in the amount of $2,248,763, for construction of the Community of Iowa Hill Telecommunications Infrastructure, funded by State of California Assembly Bill 140 Grant Program and approved a budget revision, in the amount of $665,100.
12. COUNTY EXECUTIVE – Received a report regarding the June 30, 2007 Actuarial Retiree Healthcare Valuation; approved agreement and the Election of Placer County to Prefund Other Post Employment Benefits through CalPERS and authorized the Chairman to sign two originals and Resolution 2007-398 adopted for Delegation of Authority to Request Disbursements.
13. PUBLIC WORKS - Approved a budget revision to appropriate $159,068 from a Placer County Indian Gaming Local Community Benefit Committee grant for road repairs and resurfacing of Sunset Boulevard West and East Catlett Road in rural Lincoln.
MOTION Holmes/Weygandt VOTE 4:1 (Rockholm temporarily absent)
14. COUNTY COUNSEL/CLOSED SESSION REPORT:
(A) §54956.9 - CONFERENCE WITH LEGAL COUNSEL
(1) Existing Litigation:
(a) County of Placer vs. Michelle Burris, et al., Placer County Superior Court Case No.: SCV-22068 – The Board received a request for a tender of defense by defendant Michelle Burris which was rejected by the Board of Supervisors. Direction was given to the Risk Management Division to communicate that decision.
(2) Anticipated Litigation:
(a) Initiation of litigation pursuant to subdivision (c) of Government Code §54956.9: Potential foreclosure proceedings regarding various properties in the Dry Creek-West Placer Community Facilities District – The Board received a report from County Counsel and gave direction with regards to the Dry Creek-West Placer Community Facilities District defaults including the potential of retaining outside Counsel with the discretion of County Counsel to be confirmed by the next Board meting in January.
(B) §54957.6 - CONFERENCE WITH LABOR NEGOTIATOR – The Board received a report from its negotiators with regards to DSA and gave input.
(a) Agency negotiator: CEO/Personnel Director
Employee organization: PPEO/DSA/Management
CONSENT AGENDA (Items 15-29) – Consent Agenda approved with action as indicated. The Board adjourned as the Placer County Redevelopment Agency Board for Item #26.
15. ORDINANCE – Second Reading:
a. Emergency Services – Ordinance 5495-B adopted amending Chapter 2 §2.08.010 of the Placer County Code and adding Chapter 2 §2.26 which, combined, reflects creating a County Fire Warden as an unpaid County Officer; and provided the Board authority to appoint the Fire Warden, delineate duties and provide for administration and oversight. This item is a necessary companion action to the Board’s October 23, 2007 adoption of the Hazardous Vegetation Abatement Ordinance.
16. BOARD OF SUPERVISORS:
a. Agreement - Approved one-year District Aide Employment Agreement with Linda Brown, at a base annual salary of $62,504 plus benefits, for general administrative and technical assistance to the District 1 Supervisor.
b. Agreement - Approved one-year District Aide, Tahoe Area, Employment Agreement with Collier Cook, at a base annual salary of $68,931.20 plus benefits, for general administrative and technical assistance to the District 5 Supervisor.
c. Agreement - Approved one-year District Aide Employment Agreement with Brian Jagger, at a base annual salary of $62,504 plus benefits, for general administrative and technical assistance to the District 4 Supervisor.
d. Commendation – Approved commendation recognizing Arthur Anderson, #8584, California Highway Patrol Assistant Commissioner, upon his retirement for over 30 years of service to the State of California.
e. Commendation – Approved commendation congratulating Jeff Finn, Wildlife Biologist, California State Fish & Game Department, upon his retirement.
f. Contract - Approved six-month contract with Roger Canfield, in the amount of $10,221.56, for Services for District 5 Web Page maintenance and other general administrative assistance.
g. Contract - Approved six-month contract with Kathy Carroll, in the amount of $10,221.56, for Services for District 1 Web Page maintenance and other general administrative assistance.
h. Contract - Approved six-month contract with Lyndell Grey, in the amount of $10,221.56 for Services for District 2 Web Page maintenance and other general administrative assistance.
i. Minutes – Approved minutes of October 2, 22, 23, November 6, 7 and 27, 2007.
j. Resolution – Resolution 2007-388 adopted commending Steve Eubanks, Supervisor, Tahoe National Forest, upon his retirement and recognizing his exemplary service to the people of the Tahoe region.
17. CLAIMS AGAINST THE COUNTY - Rejected the following claims, as recommended by Counsel:
a. 07-115, Schallenberg, Frederick, Unstated, (Personal Injury).
b. 07-116, Denderuk, Viktor, $25,000+, (Personal Injury).
18. COMMITTEES & COMMISSIONS:
a. Auburn Veterans Memorial Hall Board – Accepted letter of resignation from Helen Kleckner, Seat 8 (VFW 1942 Aux.).
b. Foresthill Forum Municipal Advisory Council – Accepted letter of resignation from Brenda Dabovich, Seat 7.
c. Gold Run Cemetery – Approved reappointment of Al Baker to Seat 1, Karen Winter to Seat 2, Claudia Snyder to Seat 3, Daniel Ellison to Seat 4, Rosemary Frazelle to Seat 5, Richard Snyder to Seat 6 and Beverly Clark-Hunter to Seat 7.
d. Kings Beach Area Design Review – Approved appointment of Wyatt Ogilvy to Seat 6 and reappointment of Hugh McBride to Seat 1, Julie Wainscoat to Seat 2, Chris Oberle to Seat 3 and Andrew Ryan to Seat 4, as requested by Supervisor Kranz.
e. Mental Health, Alcohol, and Drug Advisory Board - Approved reappointment of Don Basham as a Public Interest Member for District 5; and appointment of Wesley Lamb as a Public Interest Member for District 2, and Kimberly Woodall as a Consumer Member for District 3.
f. North Auburn Municipal Advisory Council – Accepted letter of resignation from Georgia Emslie, Seat 1; and reappointment of Ken Gregory to Seat 2, Chuck Rydell to Seat 5 and David Keyes to Seat 7, as requested by Supervisor Holmes.
g. Older Adult Advisory Committee – Approved appointment of Julie Nencini to Seat 5 (District 5), as requested by Supervisor Kranz.
h. Penryn Municipal Advisory Council – Approved reappointment of Mike Bishop to Seat 2, Judy Bennett to Seat 3 and Gayle Russell to Seat 5, as requested by Supervisor Holmes.
i. Planning Commission - Approved reappointment of Larry Sevison to Seat 6 (At-Large).
j. Rural Lincoln Municipal Advisory Council – Approved reappointment of Deirdre Lefty to Seat 4 and Karla McAnally to Seat 5, as requested by Supervisor Weygandt.
k. Squaw Valley Design Review – Approved reappointment of Russell Poulsen to Seat 4 and Christine Horvath to Seat 5, as requested by Supervisor Kranz.
l. Tahoe Cemetery District – Approved reappointment of Robert Scoville to Seat 2 and Steve Glazer to Seat 4, as requested by Supervisor Kranz.
19. COMMUNITY DEVELOPMENT RESOURCE AGENCY:
a. Planning/Penryn Park Subdivision, Tract #947, Project #8381- The Department has inspected the construction of all improvements within the project, located adjacent to Boyington Road in Penryn, and find the work to be in accordance with the approved standards. The Board accepted the improvements as complete, authorized the Faithful Performance to be set at 25% immediately upon Board approval and Labor and Material at 50%, or the total of all claims, whichever is higher, for six months or longer if claims exist.
b. Planning/Refund Request - Approved Refund Request #PMLDT20070551 to Ron Baumgarten, in the amount of $1,200, for a Minor Land Division.
c. Planning/Request to Withdraw – Accepted a Request to Withdraw Appeal of the Premier Granite Bay Townhomes Project (PSUB-20070571).
20. COUNTY CLERK/ELECTIONS - Approved contract with Graebel Van Lines, Inc., in an amount not to exceed $175,411, for Election Drayage Services.
21. COUNTY COUNSEL - Approved a merit increase for Thomas Miller, County Executive Officer, from Grade 708, Step 3, to Grade 708, Step 4 at $101.02 per hour, retroactive to September 1, 2007.
22. COUNTY EXECUTIVE - Resolution 2007-389 adopted granting a special four-hour holiday for County employees during 2007 in observance of the Christmas or the New Year's holiday.
23. FACILITY SERVICES:
a. Agreement - Approved a blanket purchase order agreement with Placer County Resource Conservation District, in an amount not to exceed $30,000 per year, renewable for up to four years (not to exceed $120,000 in total for four years), to provide vegetation management, water pollution prevention and grant writing consultation services; and authorized the Purchasing Manager to execute.
b. Agreement - Authorized the Chairman to sign agreement with SCS Engineers, in an amount not to exceed $160,819, for water quality monitoring services at the Meadow Vista, Loomis, Foresthill and Eastern Regional Landfills.
c. Sheriff’s Boat Barn Relocation, Project #4796 - Approved plans and specifications and authorized staff to solicit bids for the project, located in the Placer County Government Center, in Auburn.
24. PROCUREMENT SERVICES - Authorized the Purchasing Manager to sign the following:
a. Blanket Purchase Order #14302, Credit Card Aviation Fuel Purchases/Sheriff – Renewed based on Defense Department Contract with Multi Service Corporation, in the maximum amount of $70,000.
b. Blanket Purchase Order #14330, Road Sweeping Services/Public Works – Renewed as a result of Competitive Request for Quote #RQ041472 with Wells Sweeping LLC, in the maximum amount of $80,000.
c. Blanket Purchase Order #14352, Passenger Car, Truck & Heavy Equipment Tires/Public Works – Renewed from a competitively bid Public Agency Cooperative Contract, in the maximum amount of $205,000.
d. Competitive Bid #9753, Various Chemicals/Facility Services - Awarded to Sierra Chemical Company, in the maximum amount of $80,000.
e. Sole Source Blanket Purchase Order #14281, Bio-Zyme Lift Station Maintainer/Facility Services - Renewed with Brulin & Company, in the maximum amount of $85,800.
f. Sole Source Blanket Purchase Order, Rescue Equipment//Placer County Fire Department – Awarded to L.N. Curtis & Sons, in the maximum amount of $60,000.
25. PUBLIC WORKS:
a. Amendment - Resolution 2007-390 adopted authorizing the Chairman to sign and approve Cooperative Agreement #03-0231, Amendment #2, with Caltrans which outlines changes in County and Caltrans responsibilities and secures additional funding for the Kings Beach Commercial Core Improvement Project.
b. Blanket Purchase Order Contracts (BPO) - Resolution 2007-391 adopted approving BPO contracts with Andregg Geomatics, Inc., Carter-Burgess, Inc., David Evans and Associates, Inc., MHM-Sacramento, Mackay and Somps Civil Engineers, Inc., and Wood Rodgers, Inc., in an amount of $150,000 per contract, not to exceed a total combined amount of $900,000; for surveying services for various public works projects in Placer County west of Donner Summit and authorizing the Purchasing Manager to sign and execute and to transfer funds between BPO contracts as needed.
c. Tahoe City Transit Center - Resolution 2007-392 adopted committing matching funds, in an estimated amount of $40,000, to establish eligibility for Bicycle Transportation Account funding for the project.
26. REDEVELOPMENT AGENCY BOARD - Resolution 2007-393 adopted approving the 2007 Annual Report of the Redevelopment Agency.
27. REVENUE SHARING – In approving the following appropriations, the Placer County Board of Supervisors makes the finding that each and every approved contribution serves a public purpose by promoting the general welfare of the County and its inhabitants; therefore, the County benefits.
a. Approved appropriation in the amount of $250 in Revenue Sharing monies to the Roseville Christmas Tree Lighting Ceremony, as requested by Supervisor Rockholm.
b. Approved appropriation in the amount of $150 in Revenue Sharing monies to the Woodcreek High School, Safe and Sober Grad Night “Cruz’n into the Future”, as requested by Supervisor Rockholm.
c. Approved appropriation in the amount of $400 in Revenue Sharing monies to The People to People Student Ambassadors Program, as requested by Supervisor Rockholm ($150) and Supervisor Weygandt ($250).
d. Approved appropriation in the amount of $150 in Revenue Sharing monies to the Roseville Host Lions Club, Christmas Food Basket Program, as requested by Supervisor Rockholm.
e. Approved appropriation in the amount of $250 in Revenue Sharing monies to the Auburn Chamber of Commerce, Installation and Awards Dinner, as requested by Supervisor Holmes.
28. SHERIFF - Approved modification to the Master Fixed Asset List and approved a budget revision for the Cal-MMET Program, in the amount not-to-exceed $20,000, for an Advanced Generation Tracking System; approved the sole source purchase of the system from Coleman Technologies, Inc. and authorized the Purchasing Manager to execute related documents.
***End of Consent Agenda***
29. TREASURER/TAX COLLECTOR:
a. Placer Hills Fire Protection District - Approved the temporary borrowing of Treasury funds for FY 2007/08, in the estimated amount of $179,000, by the Placer Hills Fire Protection District.
b. South Placer Fire Protection District – Ratified the temporary borrowing of Treasury funds for FY 2007/08, for an additional amount estimated to be $850,000, by the South Placer Fire Protection District, Fund 531, Sub-fund 430.
ADJOURNMENT – The next regular meeting is scheduled for Tuesday, January 8, 2008.
BOARD OF SUPERVISORS MEETING SCHEDULE:
January 08, 2008
January 22, 2008
February 05, 2008
February 26, 2008
March 11, 2008
March 18, 2008 (Strategic Planning)
March 25, 2008
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House Banking letter to FDIC on Know Your Customer regs (Declan McCullagh) LONG!greenspun.com : LUSENET : TimeBomb 2000 (Y2000) : One Thread
# # # 19981231--House Banking letter to FDIC on Know Your Customer regs
These regs would put a real crimp in legitimate Y2K preparations.
LONG ... but worth the read ... Regards, Bob Mangus # # #
[Forwarded via Scan this News. I've also attached an analysis by Larry Becraft.My article from a few weeks ago:
December 18, 1998
Robert E. Feldman, Executive Secretary, Comments/OES Federal Deposit Insurance Corporation 550 17th Street, NW Washington, DC 20429
Dear Mr. Feldman,
While we are pleased to learn your agency has decided to delay implementation of this proposed "Know Your Customer" rule, and then apply it only to new accounts, we members on the House Committee on Banking and Financial Services still oppose the draft regulation. First, it is our desire to ensure that any new regulation accomplishes only legitimate and necessary law enforcement purposes without violating the privacy rights of customers. Secondly, we are opposed to any regulation that forces needless and expensive unfunded mandates on financial institutions.
In addition to consumer privacy concerns, the "Know Your Customer" draft rule would undermine the relationship between the financial institution and the client. The unofficial "profiling" of transactions that are not "regular and expected" may discriminate against the poor (who are more likely to be unbanked) as well as racial and ethnic minorities (some of whom use cash more for cultural reasons).
Because the financial institution is already held accountable for tracking and reporting any "suspicious" transactions to the regulators, any alleged benefits of this proposed rule would be outweighed by the additional cost. This rule essentially deputizes tellers not only as law enforcement agents but private investigators as well. We are concerned that the financial institution lacks an adequate safe harbor from liability and that the customer is presumed guilty of suspicious behavior until proven innocent.
The cost of these proposed financial regulations would be excessive. Financial institutions will attempt to impose the increase on their customers through higher rates and new or higher fees. According to the Financial Crime Enforcement Network (FinCEN), the compliance costs in 1996 amounted to over $83 million for just the Bank Secrecy Act. This act is part of the estimated, aggregate cost of financial institution regulation (noninterest expenses) on commercial financial institutions totalling $125.9 billion in 1991, according to an April 1998 Fed Staff Study. Moreover, the new regulations will impose a disproportionately large cost on smaller institutions because larger institutions have a comparative advantage in internalizing the cost of compliance of additional regulation. This inherent advantage for larger institutions would contribute to the further consolidation of assets in the financial system. Efforts must be made to reduce--not increase--the regulatory compliance costs, especially for smaller institutions.
It is our hope that the resolution of this matter will not require legislative action.
Ron Paul Bob Barr
Tom Campbell Frank Lucas
Bob Ehrlich Jim Ryun
Merrill Cook Vince Snowbarger
Bob Riley Pete Sessions
Walter Jones Bill Redmond
cc: Jennifer Johnson, Board of Governors of the Federal Reserve System; Communications Division (Docket No. 98-15), Office of Comptroller of the Currency; Manager Dissemination Branch (Docket No. 98-114), Office of Thrift Supervision.
Date: Tue, 29 Dec 1998 20:02:43 -0600 From: Larry Becraft
To: firstname.lastname@example.org Subject: KYC regs
Dear Declan, Saw a forwarded note you wrote about the KYC regs. The feds are full of crap when they claim that the objectors have made no substantive objections. Mine points out that the proposal simply lacks a statutory foundation and consequently is void. See attached letter. It is in WP but I can send in Word. Larry Becraft
December 8, 1998
Mrs. Jennifer J. Johnson, Secretary Board of Governors of the Federal Reserve System 20th and Constitution Avenue, N.W. Washington, D.C. 20551 Re: Comments to Docket No. R1019: Proposed rules to be codified at 12 C.F.R., Parts 208, 211 and 225.
Dear Mrs. Johnson,
On Monday, December 7, 1998, the Board of Governors proposed a group of new regulations collectively referred to as the 'Know Your Customer' program and requested comments thereto. Please consider this letter as my comments and suggestions for modification of these proposed rules.
A. Introduction to Comments.
Western civilizations, and particularly here in our country, have a tradition of liberty and freedom for the people. Western governments, and especially ours, protect these popular liberties by presuming the people to be law abiding and any given individual can only be criminally investigated when there is probable cause to do so; here in America, this procedure is constitutionally memorialized. This approach to law enforcement stands in sharp contrast with that of totalitarian societies, most of which are communist, where government inherently distrusts the people and subjects them to draconian measures. The society in which I and many others desire to live is this American one, which follows this governing philosophy: the greatest good for the greatest number of people is that they be free.
Powerful forces in the world today seek to unify the nations of the earth in a world government, and clearly those leading this effort are confronted with these polar opposites in governing philosophies between free and totalitarian states. The natural question which arises for outsiders such as myself is which governing philosophy will be adopted by the architects of world government. Since we who are outside the pinnacles of power are not involved in this decision making process, we can only observe and draw conclusions based upon concrete facts.
Recent history reveals two tyrannical forms of government which mankind must be Mrs. Jennifer J. Johnson December 8, 1998
ever vigilant to resist: Hitler's Nazi Germany and Stalin's Communist Russia. In Germany prior to and during WWII, Hitler's Brown Shirts and his Gestapo built their base of power by first spying upon the people and developing profiles of every individual. Through these dossiers of everyone, the Nazis identified all the Jews and eventually rounded most of them up for that final trip to the death camps. Little known is the fact that many who were not Jews but only opponents of the prevailing form of government suffered the same fate. A similar occurrence happened in the Stalinist Soviet Union. The Bolsheviks spied upon the people and likewise developed profiles for the express purpose of determining who was friend or foe. During Stalin's great purges of the early thirties, he liquidated even his friends, which indicates that even profiles can be wrong.
These two governments brought untold misery not only to the peoples they ruled but also the rest of humanity. They ultimately challenged the entire world, caused war and consigned to death literally hundreds of millions of people. I do not need to express here the consequences of such forms of government as Prof. Ruddy Rummel's fine work, Death by Government, gruesomely does so. If you are on the Internet, I strongly encourage you to read his webpage located at:
But please remember: the first indicator of a tyrant is his desire to profile the people. It is anti-human for government to build personal dossiers.
It appears to me that those who seek world government are listening, either wittingly or unknowingly, to modern day Nazis and Communists. In 1989 at a G-7 summit meeting in Paris, the Financial Action Task Force ('FATF') was created for the purpose of establishing programs to combat international drug running and money laundering. On April 28, 1998, at the Organisation for Economic Development and Cooperation meeting in Paris, FATF proposed that '[e]ach country should take immediate steps to ratify and to implement fully the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (the Vienna Convention).' With ratification of this treaty, FATF suggested that states adopt an 'effective money laundering enforcement program,' the American version of which is the 'Know Your Customer' program.
Surely, fighting drug trafficking is a laudable goal, but such a battle must be focused upon the real criminals instead of the law abiding populace at large. Indeed, this is the manner in which we traditionally fight crime here in America, and this method protects the liberties of the people. But in the East where the Nazis and Communists were born, law enforcement methods are the opposite in nature, and they are antithetical to our form of government. These types of government as noted earlier distrust the people and they Mrs. Jennifer J. Johnson December 8, 1998
consequently spy upon them. The 'Know Your Customer' program not only represents a fundamental shift in the emphasis of law enforcement toward the form prevalent in dictatorships, but it is also the first step (and a major one at that) in the erection of an American spy network. Although couched in the terms of an unalarming name, the 'Know Your Customer' program is first and foremost a dossier building program, and the introduction for the proposed rules states as much ('Effective 'Know Your Customer' programs will necessarily require that banking organizations develop 'customer profiles,''63 Fed. Reg. at 67517). The design of these profiles is to monitor ' the legitimate activities of [banking] customers' (63 Fed. Reg. at 67516).
Worldwide, the wishes of FATF are being heeded by government heads, presidents of central banks and the leaders of domestic and international banking institutions. Pursuant to FATF suggestions, a global project is now underway to implement surveillance of the financial transactions of every living person on earth; soon a wide variety of other personal information kept in computerized systems of records will be combined with the financial to produce the perfect profile of any particular individual. History proves that nations have fallen and suffered tremendous ruin by the implementation of such a spy network. However in this instance, the consequences are slightly different because this is not a national spy network but a global one. This worldwide system will have global consequences and if history means anything, the predictable tragedy will be global.
Please pardon me, but I have a moral obligation to strenuously object to this national 'Know Your Customer' program which is a part of a global spy network.
B. The Proposed Rules Lack a Statutory Foundation.
It is an established principle of law that one may not be required to supply information unless the applicable statute requires that the information be supplied. For example, in Viereck v. United States, 318 U.S. 236, 242, 63 S.Ct. 561, 563-64 (1943), a foreign agent who omitted certain information from his foreign agent's registration statement was prosecuted because the government believed he should have disclosed some information which he did not. In reversing that conviction, the Supreme Court held: "Unless the statute, fairly read, demands the disclosure of the information which petitioner failed to give, he cannot be subjected to the statutory penalties."
See also United States v. Irwin, 654 F.2d 671, 679 (10th Cir. 1981)("And, of course, there can be no criminal conviction for the failure to disclose when no duty to disclose is demonstrated"); United States v. Anzalone, 766 F.2d 676, 683 (1st Cir. 1985); United States v. Larson, 796 F.2d 244, 246 (8th Cir. 1986); and United States v. Dorey, 711 F.2d 125, 128 Mrs. Jennifer J. Johnson December 8, 1998
(9th Cir. 1983). Agency regulations which have no statutory foundation are void; see City of Tucson v. C.I.R., 820 F.2d 1283 (D.C.Cir. 1987). Agencies do not have unbridled authority to adopt whatever regulations they wish; see Gutknecht v. United States, 396 U.S. 295, 306, 90 S.Ct. 506 (1970) ("The power under the regulations to declare a registrant 'delinquent' has no statutory standard or even guidelines. The power is exercised entirely at the discretion of the local board. It is a broad, roving authority, a type of administrative absolutism not congenial to our law-making traditions").
The Federal Reserve Board's proposed 'Know Your Customer' program seeks to amend 12 C.F.R., parts 208, 211 and 225 by adding several new sections. For part 208, the preface to the proposed rules declares that the statutory authorities for them are as follows: 12 U.S.C., ''24, 36, 92a, 93a, 248(a), 248(c), 321338a, 371d, 461, 481486, 601, 611, 1814, 1816, 1818, 1823(j), 1828(o), 1831o, 1831p1, 3105, 3310, 33313351, and 39063909; 15 U.S.C., ''78b, 78l(b), 78l(g), 78l(i), 78o4(c)(5), 78o5, 78q, 78q1, and 78w; 31 U.S.C., '5318; and also 42 U.S.C., ''4012a, 4104a, 4104b, 4106, and 4128. For part 211, the statutory authorities are asserted to be 12 U.S.C., ''221, et seq.; ''1818, 1835a, 1841, et seq.; ''3101 et seq.; and ''3901 et seq. For part 225, the statutory foundation for the new rules are claimed to be 12 U.S.C., ''1817(j)(13), 1818, 1828(o), 1831i, 1831p1, 1843(c)(8), 1844(b), 1972(l), 3106, 3108, 3310, 33313351, 3907, and 3909. I will not summarize each of these sections, but I will inform you that I have examined each one. These statutes (excluding 31 U.S.C., '5318) have nothing within them which could in any way support the program which is the subject of the proposed rules. Consequently, all of the above mentioned statutes cited by these proposed regulations simply do not provide the statutory foundation for this program.
But, the preface does mentions one specific section of the currency transaction reporting laws codified at 31 U.S.C., ''5311, et seq., as statutory support for these proposed new rules. These CTR laws deal almost exclusively with currency deposits and withdrawals, and the reporting of such transactions by banks; but they simply do not provide a legislative command that bank customers should be profiled and monitored for normal and abnormal transactions, even by checks. The only statute which might arguably support this program is 31 U.S.C., '5318(g), which is indeed mentioned in the preface. It provides as follows: '(g) Reporting of Suspicious Transactions. '(1) In general. The Secretary may require any financial institution, and any director, officer, employee, or agent of any financial institution, to report any suspicious transaction relevant to a possible violation of law or regulation.'
Clearly, the operative word in '5318(g) is 'suspicious,' which is the very heart of this scheme. However, this word is extremely vague, making this statute potentially void; see Mrs. Jennifer J. Johnson December 8, 1998
City of Columbus v. Thompson, 25 Ohio St.2d 26, 266 N.E.2d 571 (1971); and Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855 (1983).
Courts have determined the meaning of 'suspicious' and 'suspicion' and found these words unlawfully vague. For example, in Leonardo v. State, 728 P.2d 1252, 1256 (Colo. 1986), that court noted that '[s]uspicion does not rise to the level of belief or knowledge... It encompasses the apprehension of something without proof or upon little evidence.' In Lachs v. State, 366 So.2d 1223, 1226 (Fla.App. 1979), that court noted that '[m]ere suspicion is no better than random selection, sheer guesswork, or hunch, and has no objective justification.' Being vague and having no definite parameters, '5318(g) appears not only unconstitutional, but it also allows agencies such as yours to engage in unauthorized legislation by rulemaking.
An example of legislation by rulemaking is found in a current rule which implements '5318(g). The 'suspicious transactions' regulation codified at 12 C.F.R. '353.3, requires financial institutions to report some transactions of $5000, and all transactions of $25,000, apparently because these completely arbitrary numbers are 'suspicious.' Because of the vagueness of the word 'suspicious' and its lack of a statutory definition, this word apparently means anything a federal agency such as yours wants it to mean. Perhaps I am just a dense country lawyer, but how the requirements of '353.3 assist in the reporting of potential violations of the law or regulations simply defy logic. Why is a $24,990 transaction not suspicious, but one only $11 more is? But then again, a $5001 transaction might be suspicious but a $24,990 is not. Simply stated, '353.3 is completely arbitrary and that arbitrariness arises from the vagueness of the word 'suspicious.' Because this word is unconstitutionally vague, the demands of '353.3 have absolutely nothing to do with transactions which might be illegal; and it clearly appears that the sole purpose of '353.3 is to assist government spying upon legitimate financial transactions of the American people. I mention this problem because I wish to preserve a constitutional challenge to 31 U.S.C., '5318(g), and any new regulations based thereon.
But the argument that '5318(g) does not support the Board's 'Know Your Customer' program is no invention on my part. At the same time that the Board's proposed rules were published in the Federal Register, similar proposed rules were also published by the FDIC. In the introductory comments for the FDIC's proposed 'Know Your Customer' program, it described the program as requiring nonmember banks 'to identify their customers, determine their customers' normal and expected transactions, determine their customers' sources of funds, monitor transactions to find those that are not normal and expected, and, for transactions that are not normal and expected, identify which are suspicious,' 63 Fed.Reg. 67534. Requiring financial institutions to perform these various acts should be the subject of legislation and not agency rulemaking. But, the FDIC admitted in its publication that Mrs. Jennifer J. Johnson December 8, 1998
'[u]nder current law, financial institutions are required to report suspicious activities to law enforcement authorities, but are not required to specifically search for suspicious activities. As a result, suspicious activities may go unreported, and illegal activity may go undetected,' 63 Fed.Reg. 67533. I consider this statement by another federal supervisory agency to be an admission; see United States v. Van Griffin, 874 F.2d 634, 638 (9th Cir. 1989)(government manuals admissible as party admissions under Fed.R.Evid. 801(d)(2)(D)); and United States v. GAF Corp., 928 F.2d 1253 (2nd Cir. 1991). Clearly, these requirements to specifically search for 'suspicious activities' is without any legal foundation.
I would suggest that you study the development of the CTR regulations and how the courts responded to them. Initially, there was no legal support for the requirement of not structuring cash transactions; see United States v. Anzalone, 766 F.2d 676, 681, 682 (1st Cir. 1985); United States v. Denemark, 779 F.2d 1559 (11th Cir. 1986); United States v. Varbel, 780 F.2d 758, 762 (9th Cir. 1986), United States v. Dela Espriella, 781 F.2d 1432 (9th Cir. 1986), and United States v. Larson, 796 F.2d 244 (8th Cir. 1986). Because the courts determined that structuring was not illegal, Congress was required to adopt anti-structuring laws. Similarly, imposing new demands upon financial institutions to look for ill defined 'suspicious transactions' can only be achieved through congressional action, not agency 'legislation.' I suggest that you withdraw these proposed regulations and seek legislative approval from Congress.
C. The Proposed Rules Violate Other Federal Law.
The Board's introductory remarks to the proposed rules state their purpose: 'This paragraph (d) requires that member banks establish and regularly maintain procedures reasonably designed to determine the identity of their customers, as well as their customers' normal and expected transactions and sources of funds involving the bank' (63 Fed. Reg. 67523). Abnormal transactions are those which are not normal; abnormal transactions are apparently suspicious, which means that they are reported to law enforcement and the records of such transactions must be made available within 48 hours of request. These rules envision that financial institutions will detect abnormal, 'suspicious' transactions which in the words of the Leonardo court will simply be 'apprehension[s] of something without proof or upon little evidence,' and these apprehensions are to be reported to law enforcement. The carrot is thus being dangled out in front of law enforcement, and it is only natural to expect it to take the bait.
In United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 1623 (1976), the Supreme Court held that individuals have no Fourth Amendment expectation of privacy in their financial records while those records are in the hands of third parties. In response to this decision, Congress adopted the financial privacy provisions codified in 12 U.S.C., ''3401, Mrs. Jennifer J. Johnson December 8, 1998
et seq., which limit access to financial records held by a bank. Under these laws, federal agencies may obtain banks records only via subpoena or judicial process.
The proposed rules ignore the mandates of 12 U.S.C., ''3401, et seq. My experience with law enforcement leads me to the conclusion that unless the new rules contain some provision noting the limits Congress has placed upon the ability to obtain records such as these, those limits will be ignored. Under these rules, it is easy to expect that some federal law enforcement agents will believe that compliance with the privacy laws is no longer needed and that the requirements of 'probable cause' may be discounted. There are lawyers here in America waiting for such opportunities to sue banks in situations like this; see Lopez v. First Union National Bank of Florida, 129 F.3d 1186 (11th Cir. 1997). If your agency really has an interest in protecting banks from suits like this, I strongly suggest that you remind federal law enforcement about the privacy laws in the body of the new regulations.
D. The Proposed Regulations Are UnAmerican.
As noted previously, programs like 'Know Your Customer' were developed at the suggestion of the FATF. But FATF is not a legislative body for any part of the United States, and only Congress may adopt federal laws. But Congress has not enacted any law that mandates banks to spy upon their customers legitimate banking transactions and to build financial dossiers which are available to law enforcement.
In recent years, it has been apparent that a number of federal agencies have been listening to the desires of the international community and not that of Congress. Agency officials attend these international meetings and return with their heads full of these international ideas, many of which are alien to American society. Using their rulemaking powers, these agencies then circumvent Congress and adopt rules to implement these international schemes. It must be noted, however, that such a process is not only illegal, but also unconstitutional.
Under the United States Constitution, the Senate possesses the treaty ratifying power. Once a treaty is ratified, Congress as a whole adopts laws to implement those treaties. For example, our country has ratified a wide variety of treaties covering such matters as drugs, endangered species, wetlands, fishing, wildlife, communications, air traffic and a number of other matters. When the Senate approves any given treaty, Congress itself decides the precise legislative scheme which will be used to implement the treaty. This power is possessed only by Congress and not its creatures such as the Board. However in this instance, your 'Know Your Customer' program lacks a statutory foundation, which means that Congress has yet to decide how it plans to implement the 1988 Vienna Convention. The absence of a statutory foundation for this program obviously means that the Board is taking its orders from the Mrs. Jennifer J. Johnson December 8, 1998
FATF and directly implementing an international program without Congressional approval, which is illegal and unAmerican.
But further, the American people are accustomed to financial privacy and this tradition is protected by a number of federal and state laws. Of course, drug trafficking is a problem, but the entire American populace is not involved with either this activity or anything else illegal. The 'Know Your Customer' program seeks to examine financial records of law abiding citizens for no other reason than that your agency is just curious. Businessmen of all types have business receipts which fluctuate from month to month and year to year. Ordinary citizens frequently purchase and sell property such as cars and homes. Yet under this proposed program, a businessman who buys a new facility or a wage earner who sells a car or buys a home will likely be visited by law enforcement asking lots of curious and stupid questions. Frankly, the American people have every right to complain about this unwarranted spying which has nothing to do with finding drug dealers, and everything essential to building a police state.
Perhaps Justice Douglas' observations in Laird v. Tatum, 408 U.S. 1, 28-29, 92 S.Ct. 2318, 2333 (1972), are particularly appropriate here: "This case involves a cancer in our body politic. It is a measure of the disease which afflicts us. Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance. When an intelligence officer looks over every nonconformist's shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is cast in the image which Jefferson and Madison designed, but more in the Russian image..."
By striking the phrase 'Army surveillance' from Justice Douglas' profound comments and inserting the phrase 'banking surveillance' the correct image emerges. The 'Know Your Customer' program seems to have been concocted after some bureaucrat finished reading his favorite books, Marx's Das Kapital or Hitler's Mein Kampf. Mrs. Jennifer J. Johnson December 8, 1998
The international banking and law enforcement communities clearly desire that everyone's finances be readily available for inspection and visible for everyone to see. If this is such a good idea, I suggest that the 'Know Your Customer' program be tested first on a smaller scale to see if it will really work. Just last week, the media reported that Citibank engaged in a very large money laundering transaction with parties in Mexico. Since money laundering always involves some bank or other financial institution, supervisory federal agencies such as the Board should require that every financial institution post on the Internet the details of all their daily financial transactions. With such availability, millions of ordinary Americans can watch the operations of these institutions and billions of eyes are far better than a vastly smaller number of federal agents attempting to ferret out crime. Clearly, doing this would 'make a dent in crime.'
In addition to posting such banking information on the Internet, supervisory agencies such as the Board should also require all public officials and employees, state and federal, to weekly post on the Internet all of their financial information. You must admit that public officials have been convicted of crimes and some even facilitate drug running and money laundering with their banker friends. You must also acknowledge that crooked DEA, FBI, and Customs agents provide assistance to drug runners. Putting the banking and other financial records of these types on the Internet would allow millions of ordinary Americans to become involved with law enforcement and their assistance might be so great that Congress could actually decrease the size of some of these agencies. Not only would allowing citizen participation in law enforcement assist federal agencies, the result just might reduce the budget deficit.
In summary, if the 'Know Your Customer' program is so fantastic, it should first be implemented in the most crime prone areas noted above. If implementation there is a success, then perhaps imposing it upon innocent, law abiding Americans might thereafter be required. However, there is the very distinct possibility that implementing the program where it would be most effective may very well eliminate crime, in which event it will not be necessary to subject the average citizen to it. Mrs. Jennifer J. Johnson December 8, 1998 Page 10
Because there is no statutory foundation for this 'Know Your Customer' program, I demand that the proposed rules be withdrawn. But if they are not withdrawn, I suggest making additions to the rules requiring observance by federal law enforcement of other federal privacy laws. Finally, I recommend that this program first be tested against more crime ridden groups such as bankers and public officials before it is imposed on the American people.
Lowell H. Becraft, Jr. -------------------------------------------------------------------------- POLITECH -- the moderated mailing list of politics and technology To subscribe: send a message to email@example.com with this text: subscribe politech More information is at http://www.well.com/~declan/politech/ -------------------------------------------------------------------------- # # #
-- Robert Mangus (firstname.lastname@example.org), December 31, 1998
Thank you Robert for this update!
-- Mitchell Barnes (email@example.com), December 31, 1998.
Lowell Becraft is a noted constitutional lawyer. One of his main areas of concentration is taxation issues. He has defended a lot of people on "failure to file" income tax charges. (Most of us are not subject to or liable for federal or state income taxes -- but most file anyway because of brainwashing or FEAR).
Otto Skinner has excellent information on his web site about the income tax. If you are considering not allowing withholding or not filing, whether because of Y2K or constitutional reasons, check out
-- Mr D. (firstname.lastname@example.org), January 01, 1999.
Thanks Robert Mangus! This very topic came up on Gary North's site today ;-).
A Lawyer Responds to the Know Your Customer Proposal
xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx
-- Leska (email@example.com), January 05, 1999.
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Tax Avoidance Transactions and Reporting Requirements in New York
The New York State Department of Taxation and Finance (the “Department”) recently adopted a new regulation regarding various tax avoidance transactions. The New York State Legislature amended the Tax Law in 2005 to impose reporting requirements on taxpayers engaged in potential tax avoidance schemes (See N.Y. Tax Law § 25). Most of these reporting requirements piggyback off of federal reporting requirements (i.e., if a taxpayer must report a transaction to the IRS, then they must also report it to the Department). However, the Tax Law also imposes reporting requirements that are specific to New York. If a taxpayer participates in a targeted tax avoidance transaction, the regulation requires the taxpayer to file a disclosure form highlighting such participation.
New York Reportable Transactions
The regulation defines the term “New York Reportable Transaction” (“NYRT”) as a transaction that has the potential to be a tax avoidance transaction under Articles 9, 9-A, 22, 32 and 33 of the Tax Law. Taxpayers who engage in NYRTs must report the transaction to the Department for its review. The new regulation requires a taxpayer to disclose its participation in an NYRT with its tax return for the taxable year it has participated in such NYRT. This rule is designed to help the Department curtail the use of allegedly abusive tax shelters.
The regulation establishes three broad categories of NYRTs:
- New York Listed Transactions;
- New York Confidential Transactions;
- New York Transactions with Contractual Protection.
New York Listed Transactions
A “New York Listed Transaction” is a transaction that is the same or substantially similar to one of the transactions that the Commissioner of Taxation and Finance (the “Commissioner”) has determined to be a tax avoidance transaction and identified by notice or other form of published guidance as a New York Listed Transaction. When determining whether a transaction is a tax avoidance transaction, the Commissioner is required to find that one of the following conditions are met:
- the transaction is not done for a valid business purpose; or
- the transaction does not have economic substance apart from its tax benefits; or
- the tax treatment of the transaction is based upon an elevation of form over substance.
It does not appear that the Commissioner has designated any transactions as New York Listed Transactions yet. In fact, the Tax Law requires that regulations be established regarding NYRTs prior to the designation of any specific transactions as tax avoidance transactions (See N.Y. Tax Law § 25(a)(4); TSB-M-05(4)I). The regulation became effective on December 27, 2006. It is likely that the Commissioner will soon designate specific transactions as New York Listed Transactions.
New York Confidential Transactions
A “New York Confidential Transaction” is a transaction that is offered to a taxpayer under conditions of confidentiality and for which the taxpayer has paid an advisor a fee. A transaction is “under conditions of confidentiality” if the advisor, who is paid the fee, places a “limitation on disclosure by the taxpayer of the tax treatment or tax structure of the transaction and the limitation on disclosure protects the confidentiality of that advisor’s tax strategies.” It is important to note that a transaction can be treated as confidential even if the conditions of confidentiality are not legally binding on the taxpayer.
The regulation also clarifies the fee requirement. The term “fee” includes consideration, in whatever form, for services to analyze the transaction, for services to implement the transaction, for services to document the transaction, and for services to prepare tax returns to the extent that the fees exceed the fees customary for return preparation. Finally, a taxpayer is treated as paying fees to an advisor if the taxpayer knows or should know that the amount it pays will be paid indirectly to the advisor, such as through a referral fee or fee-sharing arrangement.
New York Transactions with Contractual Protection
A “New York Transaction with Contractual Protection” is a transaction for which the taxpayer or a related party has the right to a full or partial refund of fees if all or part of the intended tax consequences from the transaction are not sustained. Moreover, a Transaction with Contractual Protection is a transaction for which fees are contingent on the taxpayer’s realization of the tax benefits from the transaction. A transaction is not considered to have contractual protection solely because a party to the transaction has the right to terminate the transaction upon the happening of an event affecting the taxation of one or more parties to the transaction.
The regulation’s reporting requirement applies to any person/entity that is required to file a return or report under articles 9, 9-A, 22, 32 or 33 of the Tax Law. This includes individuals, sole proprietorships, corporations, partnerships, limited liability companies, estates and trusts, partners, shareholders of an S corporation, beneficiaries of an estate or trust, banking corporations, insurance corporations and captive insurance companies and each member of a combined group.
A taxpayer is deemed to have participated in an NYRT if its tax return reflects a tax benefit deriving from one of the three transaction categories detailed above. The term “tax benefit” is defined to include:
deductions, exclusions, and modifications included in gross receipts, gross earnings, income (including entire net income, gross income, New York source income, New York adjusted gross income), gain, loss, assets, liabilities, total capital, capital stock, tax credits, nonrecognition of gain, status as an entity exempt from New York State taxation, and any other tax consequences that may reduce a taxpayer's New York State tax liability by affecting the amount, timing, character, or source of any such item, amount or activity.
This regulation is applicable to taxable years beginning on or after January 1, 2006. Thus, the first possible disclosure of an NYRT would be by a 2006 calendar year taxpayer with their 2006 tax return due on March 15, 2007. The regulation allows the Commissioner to prescribe the forms and manner in which a taxpayer must disclose an NYRT. The NYRT requirements largely conform to the federal provisions relating to reportable transactions. The structure and content of the regulation is analogous to Treasury Regulation § 1.6011-4. According to the Department, taxpayers will benefit from this parallel design since they are already familiar with the requirements of the federal provisions. The Tax Law imposes potentially significant penalties for nondisclosure (See N.Y. Tax Law § 25(f)(1)).
For the text of the regulation, visit the Department’s website at:
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State of Indiana, Appellant-Plaintiff, v. Nathan C. Flack, Appellee-Plaintiff.
In the course of its prosecution of Nathan Flack, commenced in March of 2022, the State received adverse rulings upon an evidentiary issue, a procedural issue, and a motion to continue. Asserting that it was unprepared to go to trial in January of 2023, the State moved to dismiss all counts of the indictment against Flack without prejudice. The trial court dismissed the counts with prejudice, concluding that, if the State was allowed to retry Flack notwithstanding the totality of the adverse rulings, Flack's substantial rights would be prejudiced. The State appeals, presenting the sole issue of whether the trial court erred by foreclosing the State's opportunity to refile the charges.1 We reverse and remand for entry of an order of dismissal without prejudice.
Facts and Procedural History
On March 16, 2022, Flack was indicted 2 upon five counts of Child Molesting, three as Level 1 felonies and two as Level 4 felonies,3 and two counts of Neglect of a Dependent, as Level 6 felonies.4 The alleged victims, A.S. and Av.S., participated in videotaped interviews aggregating to four hours and fifty-five minutes and six hours and fifty-three minutes, respectively. The State gave notice of its intention to introduce into evidence all of the recordings under Indiana Code Section 35-37-4-6, the Protected Persons Statute (“PPS”).5 The trial court conducted hearings on the matter on June 27, July 22, September 6, and November 18, 2022.
At the final hearing, A.S. and Av.S. testified and were questioned about a “privacy game” or “private game” allegedly “played” with three adults, including their mother, Flack, and another man. (Tr. Vol. III, pg. 100.) A.S. denied that Flack had played such a game. He was unable to describe the game. There was testimony that A.S. suffered from a sex abuse disorder and had perpetrated sex acts upon Av.S. A.S. had reportedly made unfounded accusations that two of his teachers and four students at his school had molested him. He had also reportedly vacillated in his accusation against Flack.6 Av.S.’s therapist testified that Av.S. had “gone back and forth multiple times” as to whether anyone other than A.S. had engaged her in sexual activity.7 (Id. at 101.)
With that background, on November 23, 2022, the trial court ruled the recordings inadmissible. The trial court's order stated that the court had reviewed the statements in their entirety, after having heard the children's incourt testimony. In relevant part, the trial court concluded:
[T]he State has presented no evidence as to when these events are said to have occurred. The children gave no answers which would allow a person to even estimate an approximate time frame as to when these allegations are said to have been perpetrated by Defendant. ․
There is a distinct concern the children were discussing these matters with many adults prior to going into the interview room to be recorded.
Questions put before the children are often suggestive of the answer.
The children never spoke with spontaneity or in the narrative fashion about the allegations made by the State.
The children were often disengaged, often unresponsive to the questions put to them, and throughout gave contradictory answers.
(Appellant's App. Vol. II, pgs. 217-18.) Ultimately, the trial court determined: “The time, content and circumstances of the statements and/or videotape DO NOT provide sufficient indications of reliability.” (Id. at 218.) (emphasis in original.)
Flack moved to have the charges against him dismissed due to lack of evidence; the trial court denied that motion.8 The State filed a motion for clarification, contending that, notwithstanding the finding of unreliability, the out-of-court statements could still be admitted in lieu of trial testimony if the trial court declared A.S. and Av.S. to be unavailable as witnesses. The trial court denied the State's request for clarification.
The trial court also conducted pre-trial hearings addressed to the State's representation at trial. Stephanie Smith had been the DuBois County Deputy Prosecutor most familiar with the evidence in Flack's case. But Smith accepted a full-time position as a Clinton County deputy prosecutor, effective January 2023. She communicated her intention to continue as the attorney of record at Flack's trial set for January 2023 while she served as a deputy prosecutor in another county; Flack objected to the dual representation.
In January of 2023, newly elected prosecutor Beth Sermersheim presented a motion for appointment of a special prosecutor – identified as Stephanie Smith – to the investigator employed by her office, Rick Chambers.9 Chambers signed and filed the motion. Sermersheim then electronically notified the trial court that she agreed with Chambers's request for the appointment of Smith as a special prosecutor. At a January 10 hearing, Chambers testified to the foregoing events. The State produced no evidence of conflict of interest or criminality for discretionary appointment of a special prosecutor, as contemplated by Indiana Code Section 33-39-10-2(b)(2).10 The trial court took the motion under advisement and, on January 12, Sermersheim and Chambers filed a joint motion to withdraw the request for appointment of a special prosecutor.
On January 17, Sermersheim attended a meeting of the DuBois County Commissioners and requested the creation of a special deputy prosecutor position in the DuBois County Prosecutor's Office, to be filled by Smith. The Commissioners purportedly created the unpaid position for Smith,11 who then filed an amended appearance in the DuBois Circuit Court to represent the State in its prosecution of Flack. At the conclusion of a hearing conducted on January 19, the trial court took the matter of the State's representation under advisement. On January 23, the trial court entered an order sustaining Flack's objection to Smith's representation of the State at Flack's trial.
On January 24, the trial court conducted a pretrial hearing at which the State was represented by deputy prosecutor Dan Wilkinson. Asserting that he personally had insufficient time to prepare for trial, Wilkinson moved for a continuance of the trial date that had been set for January 30. The trial court verbally indicated an unwillingness to continue the jury trial, the setting of which had been confirmed on multiple occasions. According to the trial court, there had been ample time “for a warm hand off” and it was “crystal clear” that a continuance would not be granted. (Tr. Vol. IV, pg. 32.)
On January 26, the State moved to dismiss all counts of Flack's indictment without prejudice and vacate the January 30 trial date; Flack objected. At a hearing conducted on the same day, the trial court and counsel discussed the prospects of granting dismissal without prejudice and with prejudice. The State conceded that two deputy prosecutors then employed by DuBois County had been employed throughout Flack's prosecution. However, the State rejected the trial court's offer of proceeding to trial as scheduled to avoid the possibility of having the counts dismissed with prejudice. Also, the State declined to accept the trial court's invitation that the State “guarantee” that the admissibility of the out-of-court statements under the Protected Person Statute would not be re-litigated. (Id. at 62.)
On January 27, the trial court issued its order of dismissal, providing in relevant part:
[T]he Court has previously ruled aversely [sic] to the State on an evidentiary issue, a procedural issue with respect to a special prosecutor, and the State's motion to continue the jury trial set on January 30, 2023.
Any one of the adverse rulings standing alone may not necessarily bar future prosecution. However, the Court views this matter in its totality. In doing so, the Court finds that in the interest of justice and a sense [of] fundamental fairness, the Defendant's substantial rights would be prejudiced by a subsequent attempt to prosecute.
(Appealed Order at 1.) The State now appeals.
Discussion and Decision
The State contends that it is empowered to file charges, obtain dismissal of charges, and refile the same charges without any discretionary act on the part of a trial court, so long as the substantial rights of a defendant are not prejudiced. The State argues that, in this particular case, there has been no prejudice and any such claim is premature because charges have not been refiled. The State asserts that, in the event of refiling, no prejudice would flow from its singular request for a continuance.12 Flack responds that the State abused its power by multiple acts intended to circumvent the rulings of the trial court, and the trial court acted to prevent forum shopping and rightfully dismissed all counts against him with prejudice because he could not obtain a fair trial on refiled charges.
Indiana Code Section 35-34-1-13 authorizes a prosecuting attorney to move for the dismissal of an indictment at any time prior to sentencing:
(a) Upon motion of the prosecuting attorney, the court shall order the dismissal of the indictment or information. The motion may be made at any time before sentencing and may be made on the record or in writing. The motion shall state the reason for dismissal.
(b) In any case where an order sustaining a motion to dismiss would otherwise constitute a bar to further prosecution of the crime charged, unless the defendant objects to dismissal, the granting of the motion does not bar a subsequent trial of the defendant on the offense charged.
A trial court is required to grant a prosecutor's motion to dismiss. Willoughby v. State, 660 N.E.2d 570, 577 (Ind. 1996). The governing statute does not incorporate the terminology of “with or without prejudice.” Simply, the dismissal is “not necessarily a bar to refiling” of charges. Davenport v. State, 689 N.E.2d 1226, 1229 (Ind. 1997), corrected in part on reh'g, 696 N.E.2d 870 (Ind. 1998). In general, the State may refile charges for the same offense so long as jeopardy has not attached, and the State has not used its power “to evade the defendant's speedy trial rights.” Id.
However, refiling the charges will not be permitted “if doing so will prejudice the substantial rights of the defendant.” Id. Dismissal due to the State's lack of preparation and refiling of the original charges does not necessarily prejudice a defendant's substantial rights. Id. Likewise, the dismissal in avoidance of an adverse evidentiary ruling and refiling of the original charges does not necessarily cause substantial prejudice to the defendant. Id. Finally, refiling of the original charge, with an amendment, does not necessarily cause substantial prejudice. Id. Substantial prejudice is not present when “the defendant can receive a fair trial on the same facts and employ the same defense in the second trial as in the first.” Id. Although “public policy favors the prosecution of persons accused of criminal offenses when a fair trial is available,” and “courts have allowed the State significant latitude in filing a second information,” the State “cannot go so far as to abuse its power” if this results in prejudice to a defendant's “substantial rights.” Id. at 1230.
Here, “jeopardy had not attached,”13 and there was no imminent Criminal Rule 4 concern upon dismissal.14 And, crucially, the State had not refiled any charge against Flack when the trial court ruled that Flack “would be” prejudiced by a subsequent attempt to prosecute. (Appealed Order at 1.) We agree with the State that the order is premature at this juncture and, accordingly, it must be reversed.15
The trial court properly dismissed the indictment against Flack upon the State's request. However, the order improperly included language prospectively barring the State from any refiling any of the dismissed charges; in doing so, the court was in error thus, this portion of the order must be reversed.
Reversed and remanded with instructions.
1. Indiana Code section 35-38-4-2(1) confers upon the State a right of review, providing that the State has a right to seek review of “an order granting a motion to dismiss one or more counts of an indictment or information.” Here, the State sought dismissal and challenges only the decision to dismiss with prejudice.
2. Two co-defendants were also indicted on like charges.
3. Ind. Code § 35-42-4-3.
4. I.C. § 35-46-1-4.
5. A statement or videotape of a “protected person” may be admitted into evidence if the court finds in a hearing “that the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability” and the protected person testifies at trial or is found unavailable as a witness and was available for cross-examination at the hearing or when the statement or videotape was made. I.C. § 35-37-4-6(e)-(f).
6. Flack asserted that a deputy prosecutor and prosecutor's office investigator responded to one recantation made by A.S. by showing A.S. his prior videotaped statement. The State did not attempt to challenge this allegation.
7. A Department of Child Services investigation was opened when A.S. and Av.S.’s mother reported having found her children engaged in sexual conduct with each other on six occasions. The investigation was closed as unsubstantiated, and a criminal investigation was commenced.
8. Flack has not challenged this ruling, nor would he prevail. A trial court's discretion does not extend to usurping the function of the jury; accordingly, a pretrial motion to dismiss directed to the insufficiency of the evidence is improper. State v. Smith, 179 N.E.3d 516, 519 (Ind. Ct. App. 2021), trans. denied.
9. Because he had participated in the investigation, Chambers was also an anticipated witness for the State at Flack's trial.
10. Indiana Code Section 33-39-10-2(b)(1) provides that a court “shall” appoint a special prosecutor if a verified petition is filed by a person other than the prosecutor or deputy prosecutor and the prosecutor agrees. Here, however, the petition was actually initiated by the prosecutor, and thus the provision was found inapplicable. The trial court considered the petition under subsection (b)(2), which provides that a court “may” appoint a special prosecutor if it “finds by clear and convincing evidence that the appointment is necessary to avoid an actual conflict of interest or there is probable cause to believe that the prosecuting attorney has committed a crime.”
11. Although Smith was offered no salary, it was anticipated that she would be reimbursed for travel and related expenses.
12. The State also points out that the dismissal of the indictments against both co-defendants was without prejudice. According to the State, “both cases dealt with the same evidence and witnesses, PPS ruling, and motion to dismiss for lack of preparedness.” Appellant's Brief at 17. Notably, however, the State's anticipated evidence greatly differs with respect to Flack and co-defendant Colton. At the PPS hearing, A.S. denied that Flack participated in a private game but maintained that Colton did so.
13. In a jury trial, jeopardy attaches after the jury is empaneled and sworn. Willoughby, 660 N.E.2d at 577-78.
14. The State advises that Flack was released on home detention and calculates the time remaining under Criminal Rule 4 at approximately eighty days. Flack has not contended otherwise.
15. It appears that the trial court was concerned that the State would escape the rulings of the original court and take a second bite at the apple in another proceeding in another forum. A panel of this Court was previously asked to consider whether a trial court has inherent power to order dismissal with prejudice as a sanction against the State. In Gregor v. State, 646 N.E.2d 52, 53 (Ind. Ct. App. Ct. 1994), the appellant argued that the trial court had inherent power to order that a dismissal be “with prejudice.” There, the State had twice sought continuances due to lack of preparation and unavailability of witnesses, whereupon the trial court dismissed the case “with prejudice.” Id. Upon the State's motion to correct error, the trial court amended its order such that the dismissal would be “without prejudice.” Id. The State refiled the charge against the defendant, and he pursued an interlocutory appeal. The Gregor Court acknowledged the general rule on availability of refiling charges:The general rule in criminal prosecutions is that a dismissal of the charge will not bar a renewal of proceedings unless the substantial rights of the accused have been prejudiced, as where speedy trial is found to have been denied or jeopardy has attached in the first prosecution.Id. (quoting Dennis v. State, 412 N.E.2d 303, 304 (Ind. Ct. App. 1980)). The Court then stated that appellant Gregor:asks that we recognize an exception to the general rule which would allow for dismissal of Gregor's case with prejudice. The exception Gregor suggests focuses upon the actions of the State, rather than the prejudicial effect of the dismissal on the accused. Gregor contends that the trial court has the inherent power to dismiss with prejudice to deter the State from encroaching upon the court's authority.Id. at 54. Also, the Court recited language appearing in dicta in State v. Lynn:A very forceful argument can be made that the prior court's dismissal with prejudice was within the inherent power of the trial court as a means for the court to deter the State from usurping the court's administrative power when the State attempts to dismiss a cause rather than to comply with the statutory requirements for a continuance found at IC 35-36-7-2 (1988).Gregor, 646 N.E.2d at 54 (quoting Lynn, 625 N.E.2d 499, 500 n.2 (Ind. Ct. App. 1993)). Ultimately, however, the Gregor Court concluded that it “need not resolve the issue of whether the trial court has the inherent authority to dismiss a criminal case with prejudice upon finding that the State has acted to encroach upon the court's authority.” Id. This was so because “the State did not act in such a manner as to warrant such a sanction.” Id.The Court “recognize[d] Gregor's dissatisfaction with the State's ability to refile charges that have been dismissed due to the State's lack of preparation” but concluded that “[her] discontent must be subordinated to the public policy favoring the prosecution of persons accused of committing criminal offenses when a fair trial is available.” Id. Finally, the Court observed that Gregor had pointed to no evidence that her substantial rights had been prejudiced; she had not claimed denial of her right to a speedy trial; jeopardy had not attached; and she “point[ed] to no conduct by the State that would warrant a dismissal with prejudice under her proposed exception.” Id.Here, the record is replete with indications of evasive tactics on the part of the State. Critically, however, no refiling of charges had occurred. The Gregor Court need not have decided the propriety of a dismissal with prejudice as a sanction where there was no sanctionable conduct. Here, even in the face of sanctionable conduct, we need not reach this question because – unlike the circumstances in Gregor – there has been no refiling of charges.
Memorandum Decision by Judge Bailey
Judges Tavitas and Kenworthy concur. Tavitas, J., and Kenworthy, J., concur.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: Court of Appeals Case No. 23A-CR-402
Decided: September 18, 2023
Court: Court of Appeals of Indiana.
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https://caselaw.findlaw.com/court/in-court-of-appeals/115093700.html
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<urn:uuid:5a55247c-de15-4180-91f8-81a68e332418>
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B-400340.8, Transportation Security Administration--Costs, May 20, 2010
Request that GAO recommend reimbursement of attorneys' fees at a rate higher than the statutory cap of $150 per hour based on increase in cost of living is granted where claim filed with agency presents reasonable basis for adjustment, and agency does not object to request.
The Transportation Security Administration (TSA), with the concurrence of General Dynamics One Source, requests that we recommend that General Dynamics be reimbursed attorneys' fees at a rate higher than the $150 per hour statutory rate cap in connection with a bid protest in which General Dynamics prevailed.
General Dynamics, a large business (along with a second protester, Unisys Corporation), protested the award of a contract to Computer Sciences Corporation under request for proposals (RFP) No. HSTS03-08-R-CIO903, issued by TSA for computer support services. We sustained the protests and, in addition to corrective action, recommended that the agency reimburse the protesters' costs associated with filing and pursuing their protests, including reasonable attorneys' fees. General Dynamics One Source, LLC; Unisys Corp., B-400340.5, B-400340.6, Jan. 20, 2010, 2010 CPD para. 45.
General Dynamics subsequently filed a claim for protest costs with the agency, which included a request for reimbursement of attorneys' fees at a rate higher than the statutory maximum rate of $150 per hour. The agency advises our Office that the request is fully substantiated and explained, and that it has no objection. TSA Letter, Apr. 21, 2010. TSA therefore requests that we recommend reimbursement at the higher rate.
Under the Competition in Contracting Act of 1984, as amended, where the Comptroller General recommends that a successful protester's costs, including reasonable attorneys' fees, be reimbursed, those fees are capped at $150 per hour, except where the protester is a small business concern. However, this hourly rate may be increased where "the agency determines, based on the recommendation of the Comptroller General on a case by case basis, that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee." 31 U.S.C. sect. 3554(c)(2)(B) (2006).
We have found that the justification for an upward departure from the $150 cap is self-evident if the claimant asserts that the cost of living has increased, as measured by the Department of Labor's (DOL) Consumer Price Index (CPI). Sodexho Mgmt., Inc.--Costs, B-289605.3, Aug. 6, 2003, 2003 CPD para. 136 at 37-43; see also Department of the Army; ITT Fed. Servs. Int'l Corp.--Costs, B-296783.4, B‑296783.5, Apr. 26, 2006, 2006 CPD para. 72 at 2. EBSCO Publishing, Inc.‑‑Costs, B‑298918.4, May 7, 2007, 2007 CPD para. 90 at 2-3; Department of State--Costs, B‑295352.5, Aug. 18, 2005, 2005 CPD para. 145 at 2; Department of the Army; ITT Fed. Servs. Int'l Corp.--Costs, supra, at 2-3. Thus, where such a claim is asserted, and the contracting agency does not object, we will grant a request for a recommendation in favor of a cost-of-living adjustment to the fee cap. Department of State--Costs, supra, at 2.
Here, General Dynamics has provided TSA a detailed explanation of its calculation of the enhanced attorney fee rate of $210.77 to $211.12 per hour (depending on the month of billing) using DOL's CPI‑‑All Urban Consumers; if applied, the parties have agreed upon reimbursement in the amount of $103,871.72. Use of DOL's CPI--All Urban Consumers for a specific area is consistent with our prior decisions. Since TSA does not object, we recommend reimbursement at the claimed higher rate. See Core Tech Int'l. Corp.--Costs, B-400047.3, June 2, 2009, 2009 CPD para. 59 at 2-3.
The request is granted.
Lynn H. Gibson
Acting General Counsel
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http://www.gao.gov/decisions/bidpro/4003408.htm
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<urn:uuid:b0ce02ab-304e-4738-9c66-864d7a23f384>
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Stephen Stamboulieh acted as co-counsel litigating the Young v. Hawaii case that in 2018 was brought before the 9th Circuit Court that overturned the complete ban on open carry in the State of Hawaii.
Stephen is a native of Houston, Texas, and a practicing attorney in Madison, MS. He concentrates his work on firearms law and representing those whose rights have been infringed by the government. In one of his cases, he represents Kent Terry, brother of slain border patrol agent Bryan Terry, in an ongoing lawsuit against the Dept of State in his constant attempt to get information on the Fast & Furious ATF Gunrunning fiasco.
In the Young v. Hawaii case, Mr. Young was a pro se individual (meaning he didn’t have a lawyer when he filed his case) and he was dismissed. Alan Beck, who became lead-council in the case, appealed that decision to the 9th Circuit because he believed Mr. Young deserved his day in court.
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https://gunfreedomradio.com/guests/stephen-stamboulieh/
| 3.889571
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in Data Studio
⚖️ FineWeb-Legal-Pilot
66.8M words of the finest legal domain data the 🌐 web has to offer.
Repo: GitHub | Report: Technical Report
What is it?
FineWeb-Legal-Pilot is a pilot dataset consiting of 52k high-quality legal documents filtered from the 10-billion-token sample of 🍷 FineWeb.
To enhance FineWeb's utility for legal AI domain adaptation, we draw inspiration from the FineWeb-Edu methodology: creating a legal quality classifier using annotations generated by Mistral-Medium. We then used this classifier to score and retain only the most legally significant web pages (case law, statutes, filings).
This pilot release serves as a validation step before scaling the pipeline to the full 44TB FineWeb corpus.
What is being released?
Along with the dataset, we are releasing the legal classifier model used for filtering, as well as the training code and annotation pipeline:
- Dataset (Filtered): This repo (
fineweb-legal-pilot) - Dataset (Annotations): NoeFlandre/fineweb-legal-annotations
- Classifier: HuggingFaceFW/fineweb-legal-classifier
- Code: GitHub Repository
How to load the dataset
You can load the full dataset (default) or one of the specialized high-quality subsets.
Configurations
| Config | Min Score | Train (docs) | Test (docs) | Total Docs | Total Words | Avg Score |
|---|---|---|---|---|---|---|
default |
≥ 3.0 | 46,918 | 5,214 | 52,132 | 66.9M | 4.21 |
high_quality |
≥ 4.0 | 29,101 | 3,234 | 32,335 | 46.9M | 4.60 |
supreme |
≥ 4.8 | 14,971 | 1,664 | 16,635 | 29.4M | 4.98 |
default: All identified legal documents. Broadest coverage.high_quality: Strong legal content. Case law, statutes, contracts.supreme: Gold Standard. Supreme Court opinions, primary legislation.
Using datasets
from datasets import load_dataset
# Load the "Supreme" Gold Standard configuration
ds = load_dataset("NoeFlandre/fineweb-legal-pilot", "supreme", split="train")
# Load the default configuration
ds_default = load_dataset("NoeFlandre/fineweb-legal-pilot", "default")
Dataset Curation
We adopted the synthetic data annotation approach pioneered by FineWeb-Edu.
Annotation
We used Mistral-Medium to score 6,500 FineWeb samples on a scale of 0 to 5, based on their legal value.
| Score | Label | Description | Examples |
|---|---|---|---|
| 0 | Noise/Spam | Navigation, ads, gibberish | Cookie notices, site menus |
| 1 | General/Marketing | Law firm ads, generic news | "Call our lawyers today!" |
| 2 | Basic Info | Wikipedia summaries, Reddit questions | ELI5 legal questions |
| 3 | Useful | Detailed legal news, government guides | IRS guidelines, legal blogs |
| 4 | High Value | Case text, statutes, contracts | Court filings, legislation |
| 5 | Gold Standard | Supreme Court opinions, law journals | Academic legal research |
Classifier Training
We fine-tuned a Gemma-Embedding-300m model using LoRA adapters on these annotations. The model achieves:
- Binary F1@3: 97.99%
- Validation Accuracy: 88.8%
The training process took ~2 hours on a single RTX 3090.
Filtering Results
We filtered the FineWeb 10BT sample (approx 143k candidates pre-filtered by heuristics) using this classifier.
- Input: 143,379 documents (extracted by heuristics from the original FineWeb 10BT subset)
- Output: 52,132 documents (Score ≥ 3.0)
- Top domains include
openjurist.org,findacase.com, andfederalregister.gov.
Considerations for Using the Data
Social Impact
Access to high-quality legal training data is currently restricted to proprietary databases (Westlaw, LexisNexis). By releasing FineWeb-Legal, we aim to democratize access to legal AI research, enabling the community to train open legal LLMs.
Biases
The dataset reflects the bias of the web and Common Crawl. While heavily filtered for legal content, it may still contain historical legal documents with outdated or offensive terminology typical of their era.
Limitations
This is a Pilot release derived from only 10 billion tokens. It is not yet large enough for full pre-training but is ideal for:
- Domain adaptation (fine-tuning)
- Evaluation benchmarks
- Training retrieval (RAG) embeddings
Additional Information
Licensing
The dataset is released under the MIT License and adheres to the Open Data Commons Attribution License (ODC-By) v1.0 of the parent FineWeb dataset.
Citation
@misc{fineweb-legal-2026,
author = { Noé Flandre },
title = { FineWeb-Legal-Pilot: High-Quality Legal Text from the Web },
year = 2026,
url = { https://github.com/NoeFlandre/fineweb-legal },
publisher = { Hugging Face }
}
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