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The Arab Charter on Human Rights (Revised) (2004) was adopted in 2004 by the League of Arab States, which as of mid-2008 included 22 states from the Middle East and North and Northeast Africa . The 2004 charter, which replaces the 1994 Arab Charter, entered into force in 2008. It defines and protects a broad range of civil and political rights, as well as economic, social, and cultural rights. It also creates an Arab Human Rights Committee competent to receive and examine reports submitted by states parties on measures adopted to ensure the implementation of the rights protected under the charter.
Article 14 of the Arab Charter protects the right to liberty and security of the person and determines that: Everyone has the right to liberty and security of person and no one shall be subjected to arbitrary arrest, search or detention without a legal warrant (Arab Charter on Human Rights (Revised) 2004, Art. 14.1); no one shall be deprived of his liberty except on such grounds and in such circumstances as are determined by law and in accordance with such procedure as is established thereby (Arab Charter on Human Rights (Revised) 2004, Art. 14.2); anyone who is arrested shall be informed, at the time of arrest, in a language that he understands, of the reasons for his arrest and shall be promptly informed of any charges against him and be entitled to contact his family members (Arab Charter on Human Rights (Revised) 2004, Art. 14.3); anyone who is deprived of his liberty by arrest or detention shall have the right to request a medical examination and must be informed of that right (Arab Charter on Human Rights (Revised) 2004, Art. 14.4); anyone who is deprived of his liberty by arrest or detention shall be entitled to petition a competent court in order that it may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful (Arab Charter on Human Rights (Revised) 2004, Art. 14.6).
The charter also determines that all persons deprived of their liberty are to be treated humanely (Arab Charter on Human Rights (Revised) 2004, Art. Art. 20). It stipulates that non-citizens lawfully in the territory of a state party may not be expelled “other than in pursuance of a decision reached in accordance with law and after that person has been allowed to submit a petition to the competent authority, unless compelling reasons of national security preclude it.” The charter prohibits the collective expulsions of aliens (Arab Charter on Human Rights (Revised) 2004, Art. Art. 26) and guarantees the right to seek asylum (Arab Charter on Human Rights (Revised) 2004, Art. Art.28).

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On November 22, the Fourth Circuit decided a case involving a Sixth Amendment ineffective assistance of counsel claim based on the failure of counsel to investigate the State’s forensic evidence. In Elmore v. Ozmint, the Court found Elmore was entitled to relief, reversing and remanding the state capital murder conviction and directing the district court to award a writ of habeas corpus unless the State of South Carolina prosecutes Elmore in a new trial within a reasonable time.
The forensic evidence presented by the State that was not challenged by Elmore’s attorneys included fingerprint evidence and evidence regarding scientific indicators of the time of death. Defense counsel also failed to expose the crime scene investigators’ failures to photograph, collect and package physical evidence at the crime scene and failed to question the misreporting of the contents of one item of evidence.
This decision highlights the importance of investigating forensic evidence, including investigating evidence that the State may be bypassing, and conducting independent analysis, where appropriate. Attorneys should be aware this case and should consider citing to it when arguing that investigating and challenging forensic evidence is part of a constitutionally effective representation.
I recently posted on the IDS Forensics website a list of the books that I have available for attorneys to use at the IDS Main Office in Durham. For attorneys who cannot travel to Durham, please call me (919-354-7217) if you need access to these texts. If you are a North Carolina public defender, assistant public defender or private appointed counsel, I am available to assist you with legal or scientific research on topics of forensic science.
John M. Butler, Forensic DNA Typing: Biology, Technology, and Genetics of STR Markers (2d ed. 2005).
Larry E. Daniel & Lars E. Daniel, Digital Forensics for Legal Professionals: Understanding Digital Evidence From the Warrant to the Courtroom (2012).
Vincent J.M. DiMaio, Gunshot Wounds: Practical Aspects of Firearms, Ballistics, and Forensic Techniques (2d ed. 1999).
David L. Faigman et al., Modern Scientific Evidence: Forensics (Student ed. 2008).
David L. Faigman et al., Modern Scientific Evidence: The Law and Science of Expert Testimony, Vol. 1: Statistics & Research Methods (2010-2011).
James C. Garriott, Ed., Garriott’s Medicolegal Aspects of Alcohol (5th ed. 2008).
Brian J. Heard, Firearms and Ballistics: Examining and Interpreting Forensic Evidence (2d ed. 2008).
National Fire Protection Association 921: Guide for Fire and Explosion Investigations (2008).
Richard Saferstein, Ed., Forensic Science Handbook: Volume I (2d ed. 2002).
Richard Saferstein, Ed., Forensic Science Handbook: Volume II (2d ed. 2005).
Richard Saferstein, Ed., Forensic Science Handbook: Volume III (2d ed. 2010).
James Shellow, Cross-Examination of the Analyst in Drug Prosecutions (2009).
William W. Shockley & Harold C. Pillsbury III, The Neck: Diagnosis and Surgery (1994).
Werner U. Spitz, Ed., Spitz and Fisher’s Medicolegal Investigation of Death: Guidelines for the Application of Pathology to Crime Investigation (4th ed. 2006).
On Tuesday, the Supreme Court considered the constitutional limits on police use of new forms of technology as it heard oral arguments in United States v. Jones. The Court examined how the Fourth Amendment applies to warrantless tracking of cars using GPS devices. The Justices considered the extent to which the police could use a GPS device placed on a suspect’s car and collect data from the device (in that case, for a month). The case is expected to be decided next year. For more coverage, click here or here.
If you have a case involving digital evidence, such as computer or network evidence, cell phone evidence, cell phone tower information being used to “track” a suspect, GPS devices, digital images or other types of electronic or digital evidence, take a look at the new Digital Evidence page of the IDS Forensics website. I’ve posted reference materials, articles, information about experts, and links to other online resources.
As always, if you have filed motions, subpoenaed records or researched a related topic, please email me if you’re willing to share what you’ve done with other attorneys.
The National Institute of Justice has awarded a $6 million grant to RTI International and its partners to form a new Forensic Science Technology Center of Excellence in Research Triangle Park.
RTI International states that it will work to increase the capabilities of state and local criminal justice agencies to effectively and professionally serve the public in matters involving forensic science technology. The University of North Texas Health Science Center, Duquesne University Center for Forensic Science and Law, and Virginia Commonwealth University Department of Forensic Science will work with RTI International as partners in this project.
The project will include training and outreach as well as testing, evaluation, technology assistance for use by crime laboratories. Click here for the announcement of the project. I will post additional information about how the Center of Excellence will improve capacities of state and local crime laboratories as specific projects are announced.
In State v. Jones, __ N.C. App. __ (November 1, 2011), the NC Court of Appeals issued an important decision regarding the admissibility of NarTest evidence. NarTest is a private company that produces the NarTest NTX 2000 machine which has been used by local law enforcement in several cities and counties in North Carolina to test samples of suspected controlled substances. The NarTest machine uses a technique that is different from techniques used in crime labs. NarTest also has a lab located in Morrisville that tests samples of suspected controlled substances using methods of analysis similar to those used in state crime labs.
State v. Jones involves the testing of substances by a sheriff’s detective using the NarTest machine as well as the testing of the same substances at the NarTest lab by retired SBI analyst Trot Raney. The defendant argued that the testing performed by the detective using the NarTest machine and the testing performed by Mr. Raney in the NarTest lab failed to satisfy the first prong of the Howerton test which requires that the “proffered method of proof [be] sufficiently reliable as an area for expert testimony[.]” Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458 (2004).
With respect to the substances that were tested by the detective, the Court held that the detective’s testimony regarding his use of the NarTest machine was erroneously admitted under the Howerton standard. Among the factors considered by the Court were that the detective “did not testify as to whether the NarTest had been recognized by experts in the field of chemical analysis as a reliable method of testing, nor did he compare the NarTest to other testing method currently used to identify controlled substances.” Jones at 8. Additionally, the detective “had been ‘trained to operate the NarTest, but he had no ‘professional background in the field of chemical analysis of controlled substances.'” Id. at 8-9. Finally, the detective “did not testify as to any independent research he had conducted, nor did he supplement his testimony with a visual aid.” Id. at 9.
Previously in State v. Meadows, 201 N.C. App. 707 (2010) the Court came to the same conclusion regarding this detective’s testimony, concluding that with respect to the detective’s testimony, the “expert’s proffered method of proof [is not] sufficiently reliable as an area for expert testimony” because the State failed to proffer evidence of indicia of reliability required by Howerton. Meadows at 712. Because the detective’s testimony in Jones was similar to his testimony in Meadows, the Court held his testimony was erroneously admitted. Jones at 9.
With respect to Mr. Raney’s testimony regarding the NarTest machine used by the detective, the Court also found that admission of that testimony was erroneous. In making this determination, the Court considered several factors: Mr. Raney’s testimony that the NarTest had not been licensed or certified by the Department of Health and Human Services or any other agency or department of the State; the fact that Mr. Raney had not conducted any independent research on the NarTest machine outside of his duties as a NarTest employee; that the State did not present any evidence that the NarTest machine had been recognized as a reliable method of testing by experts other than Mr. Raney; that the State did not point to any publications or research performed by anyone not associated with NarTest; and that the only visual aid used to support Mr. Raney’s testimony was a promotional video created by NarTest. Id. at 11-12.
Additionally, the Court found that admission of Mr. Raney’s testimony regarding the testing of the substances in the NarTest lab was erroneous. Recently in State v. McDonald, __ N.C. App. __ (Oct. 4, 2011) Mr. Raney testified while the NarTest lab was not independently accredited by any agency, the lab was licensed by the State of North Carolina and the DEA to perform analytical testing on controlled substances. Mr. Raney’s testimony regarding the testing in the NarTest lab was allowed. In Jones, there was no evidence introduced that Mr. Raney or the NarTest lab was licensed or accredited by any agency. Mr. Raney testified in Jones that in the NarTest lab he used chemical analysis protocols similar to those used by the SBI, and his testimony regarding chemical testing in the NarTest lab was not allowed. Id. at 13-14.
The Court additionally held that a visual identification of a substance as cocaine was inadmissible under State v. Ward, 364, N.C. 133, 147 (2010), but that the visual identification of a substance as marijuana was admissible.
In sum, the defendant’s convictions involving cocaine were overturned and a new trial was ordered. His convictions involving marijuana were upheld as the Court held that the testimony regarding visual identification of marijuana was sufficient to render the admission of the NarTest results harmless with respect to that evidence. Jones at 15-16.
In light of these holdings, defenders should be aware of the successful challenges to the admission of testimony regarding the NarTest machine. With respect to testing completed in the NarTest lab, defenders should determine whether the NarTest lab is licensed or accredited by any agency, and if it is licensed, whether testing was done before or after the lab became licensed.
Attorney Anne Bleyman argued Jones and Meadows before the Court of Appeals and is available to attorneys who would like additional information about confronting this type of evidence. Her email address is abtigerlaw@earthlink.com.

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Additional Prince Edward County Chancery Causes Added to CRI!
« Aaron Burr Tried for Treason Today in 1807. Court Documents Here At LVA.
Additional Prince Edward County chancery causes are now available on the Chancery Records Index. These additions span the years 1754 through 1883. Combined with the previously released images for Prince Edward County, the locality’s chancery causes have been digitized for the years 1754 through 1913.
Chancery cases are especially useful when researching local history, genealogical information, and land or estate divisions. They are a valuable source of local, state, social, and legal history and serve as a primary source for understanding a locality’s history. Chancery causes often contain correspondence; property lists, including slaves; lists of heirs; and vital statistics, along with many other records. Some of the more common types of chancery causes involve divisions of the estate of a person who died intestate (without a will); divorces; settlements of dissolved business partnerships; and resolutions of land disputes.
Here are a few of the cases you will find in the newly updated Prince Edward County chancery collection. To see more suits, go to the EAD guide and choose “Selected Suits of Interest” on the menu at the left.
1755-001- Bridget Braithwaite by etc. v. Edward Braithwaite. The wife sued for separate maintenance. Her husband abandoned her and was cohabiting with Joanna Sinclair, “a woman of ill fame and reputation” in the same parish and county. Bridget Braithwaite and her small children “are likely to be reduced to the utmost Distress of Indigence & poverty having nothing to support &* maintain her self & children but what she gets by her own labour which is very Little being upwards of 47 years of age and very infirm.” The court ordered an inventory of the husband’s estate.
1779-003 – Legts. Of Charles Rice v. Charles Chattrel, etc. The suit contains a detailed bill showing the cost of building a house.
1805-013 – Peter Fore v. Peter Kelso, Gdn., etc. The suit is about a dispute concerning the handling of two children of an enslaved woman who was sold. Two of her young enslaved children were to be given to another heir when they came of age.
1808-011 – Samuel Carter v. Exx. of Wadill Carter. The bill contains a description of the operation of a brandy still, inherited from the father.
1810-016 – Richard Burks v. Richard Keeling. The suit contains a detailed bill for blacksmith work.
1811-005 – George Davidson v. Exr. Of Richard Blanton. Concerns a dispute about a slave who tried to return to the place where she grew up.
1811-010 – John White & Wife v. Andrew Porter. The plaintiffs sue for the woman’s dower rights. The defendant says the wife is not entitled because she left her husband and went to live with a man in adultery and is doing the same with a second man. This case contains many depositions about the conduct of the woman.
1811-013 – Aaron~ v. Exr. of Andrew Baker. In this freedom suit the plaintiff alleges his owner freed him in exchange for wages he earned while hired out. Aaron wasn’t named in the owner’s will. The suit contains an interesting answer from Andrew Baker’s widow about his desire to emancipate his slaves and decision to wait to tell them for fear the slaves would find out that their freedom depended on his death.
1825-010 – Admr. of Samuel Dodson v. Francis Thackston. The case contains correspondence describing the battle at Craney Island in the War of 1812.
1837-034 – Adms. Of Alexander Legrand, etc. v. Josiah Legrand, Comt., vs. Sarah Legrand. This is a large suit that contains records of marriage and register of births for the Legrand family. There is also a record of enslaved African Americans born in the eighteenth century.
1843-012 – Zackariah Goodman v. Trsts. Of Appomattox Co. The case involves a proposal to construct locks to improve navigation of the Appomattox River.
1847-011 – Fanny Bowman v. Exr. Of Philip Bowman. A free African American was married to an enslaved woman owned by the Venable family. He tried to leave her property at his death. Philip Bowman was employed to manage a corn mill owned by the Venable family. When he died, his mother sued for the property, arguing the widow was a slave and could not inherit it. The Venable family tried to protect the widow’s interests by promising to care for her, but later they put her in the poor house to live out her days there.
To date, The Library of Virginia has posted over 5.6 million digital chancery images. Additional localities are presently being scanned and will be posted in the coming months. However, because of reductions to the Library of Virginia’s budget in recent years, the pace of the agency’s digital chancery projects will necessarily proceed more slowly. Please know these projects remain a very high priority for the agency and it is hoped that the initiative can be resumed in full when the economy and the agency’s budget situation improve. Please see the Chancery Records Index for a listing of the available locality chancery collections.

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D.C. Law Library - § 37–103. Enterprise Fund.
↪ Chapter 1. Eastern Market Management and Regulation.
↪ § 37–103. Enterprise Fund.
(a) There is established the Eastern Market Enterprise Fund (“Fund”) pursuant to § 47-373(2)(C). The Fund shall be operated by the CPMO in accordance with general accepted accounting principles.
(b) The CPMO shall deposit into the Fund all revenues, proceeds, and moneys from whatever source derived that are collected or received by the CPMO on behalf of Eastern Market.
(2) Up to $5,000 per fiscal year to fund the operating expenses of the Eastern Market Community Advisory Committee, including the creation and preservation of meeting records, printing, copying, and other direct expenses related to their duties.
(e) Money in the Fund may not be used to fund capital expenditures for Eastern Market and the Eastern Market Special Use Area.
(f)(1) The money deposited into the Fund shall not revert to the unrestricted fund balance of the General Fund of the District of Columbia at the end of a fiscal year, or at any other time.
This section is referenced in § 37-111.
D.C. Law 15-205, in subsec. (c), substituted “biennially” for “annually”.
For temporary (90 days) amendment of this section, see § 1112 of Fiscal Year 2019 Budget Support Congressional Review Emergency Act of 2018 (D.C. Act 22-458, Oct. 3, 2018, 65 DCR 11212).
For temporary (90 days) amendment of this section, see § 1112 of Fiscal Year 2019 Budget Support Emergency Act of 2018 (D.C. Act 22-434, July 30, 2018, 65 DCR 8200).
For temporary (90 days) amendment of this section, see § 8 of Repeal of Outdated and Unnecessary Audit Mandates Emergency Amendment Act of 2016 (D.C. Act 21-403, May 21, 2016, 63 DCR 7925).
For temporary (90 day) amendment of section, see § 1192(d) of Fiscal Year 2005 Budget Support Emergency Act of 2004 (D.C. Act 15-486, August 2, 2004, 51 DCR 8236).
For temporary (90 day) amendment of section, see § 1192(d) of Fiscal Year 2005 Budget Support Congressional Review Emergency Act of 2004 (D.C. Act 15-594, October 26, 2004, 51 DCR 11725).


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Attorney Eric C. Morris, provides representation and legal counsel in matters pertaining to Civil Litigation, Civil Rights, Class Action, Bankruptcy, Criminal Defense, Family Law and Qui Tam False Claims Act. Prior to joining Southern California Lawyers Group, PC, Mr. Morris worked for law firms Stone, Rosenblatt & Cha, PLC; Koeller, Nebeker, Carlson, & Haluck, LLP; and Somach Simmons & Dunn, LLP. Mr. Morris has litigated disputes from inception through discovery, pre-trial proceedings, jury trial, arbitration and appeals. During his years of practice, Mr. Morris assisted in successful litigation resolution of multiple complex-litigation, multi-party disputes on behalf of national developers. Mr. Morris successfully argued and won a plaintiff judgment in the United States Federal Court, Eighth Circuit, against the Environmental Protection Agency, requiring the revision of the Lead NAAQS Emission Standard to protect public health. Mr. Morris is admitted to practice before all state courts in California; the Central, Southern and Eastern Districts of the U.S. District Court, California.
Eric C. Morris obtained his Juris Doctorate from Washington University School of Law, St. Louis, where he was Board Editor of the Washington University Law Review. Mr. Morris obtained his Bachelor of Arts in Business and Economics from the University of California, Santa Barbara.
Prior to pursuing his legal endeavors, Mr. Morris served as a Congressional Page for the Speaker of the House of the United States Congress and Mr. Morris worked as a financial compliance auditor for the State of California, Bureau of State Audits. He is an active member of the State Bar of California, Los Angeles County Bar Association, Habitat for Humanity, Volunteer Legal Services Program, and Walk Now. During his downtime, Mr. Morris enjoys distance running, hiking, sailing and travel.
Moladina v. Naimi (2018) 2018 WL 357436 (Cal.Rptr.3d) (Cal. Ct. App. 2018).
Simpson v. Zhang (2017) 2017 WL 1101750 (Cal.Rptr.3d) (Cal. Ct. App. 2017).
Graciela Herrera v. City of Los Angeles Police Dept. (2016) 2016 WL 10706717 (C.D. Cal.) (2:16-cv-02719-DSF).
Robert Duh v. City of Beaumont Police Dept. (2017) (C.D. Cal.) (5:17-cv-00831-JGB).
Keivon Young v. San Bernardino County Sheriff’s Dept. (2015) (C.D. Cal.) (5:15-cv-01102-JGB).
Merrill v. Action Educational Services, Inc. (2013) 2013 WL 5486733 (Cal.Rptr.3d.) (Cal. Ct. App. 2013).
United States of America v. B & H Education (2013) (C.D. Cal.) (2:13-cv-05256-RGK).
Sandoval v. B & H Education, Inc. (2012) 2012 WL 4097288 (Cal.Super.).
Marble v. American International Group, Inc. (2011) 2011 WL 6441738 (Cal. Super.).
Abigail Real v. Countrywide Home Loans (2009) 2009 WL 249800 (S.D. Cal.).
United Van Lines, LLC and Mayflower v. Edwards, (2008) 2008 WL 2817574 (E.D. Cal.).
United Van Lines, LLC v. Besch, (2008) 2008 WL 4066203 (N.D. Cal.).
Phillips v. Mayflower Transit LLC, (2008) 2008 WL 5043374 (Cal. Superior).
Missouri Environment v. Leavitt and E.P.A., (2004) 2004 WL 5608625 (E.D. Mo.) .
Relicensing Oroville Dam, 14 CAL. WATER L. & POL’Y RPTR 306 (2004).
Threats Loom to New Melones Water, 14 CAL. WATER L. & POL’Y RPTR 340 (2004).
Attorney John Graham provides legal representation and counsel in matters pertaining to complex business litigation, corporate securities, mergers & acquisitions, land use, CEQA, distressed assets and real estate law. Mr. Graham has over 18 years experience structuring multi-party, complex corporate transactions, single asset purchases, workouts, M&A transactions, due diligence review, blue sky, SEC, FINRA noticing, reporting, and compliance requirements.
Prior to joining the firm, Mr. Graham has held the positions of In House Counsel and senior management for several top private and publicly held companies including William Lyon Homes, Beazer Homes, Lennar, Rialto Capital, Greystone & Co., where he was responsible for the successful acquisition, financing, repositioning, development or stabilization of over $2 Billion in real estate and corporate assets nationally. Mr. Graham was successful in re-positioning several large AD&C portfolios for the Federal Deposit Insurance Corporation (FDIC), assisting in placing residential, commercial, and industrial real estate assets back into the marketplace as well as structuring and managing the successful workout of numerous lender/creditor agreements, trustee foreclosures, and bank failures.
Mr. Graham is uniquely qualified to act as an advocate and counselor for his clients. On behalf of a national developer, Mr. Graham negotiated and secured 2,200 surplus acres in Florida from Cargill, a multinational food company and successfully subdivided and re developed the surplus asset, into business parks and an active adult retirement community. His involvement secured a four times equity multiple and ROIs exceeding 52% for capital partners.
Mr. Graham obtained his Juris Doctorate from Pepperdine University School of Law and obtained his M.B.A. from the University of Southern California, Marshal School of Business. Mr. Graham is admitted to practice by the State of Washington and is registered in House Counsel by the State of California. Mr. Graham is also admitted to the United States Court of Appeals, Ninth Circuit.

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text: XIII. Closed Session: The Mountains Recreation and Conservation Authority may hold a closed session on the following items pursuant to Government Code §§ 54956.8 and 54956.9 Confidential memoranda related to these items may be considered during such closed session discussions. Conference with legal counsel. Number of cases: six (6). (1) Mountains Recreation and Conservation Authority v. Berggruen Institute et al,; (2) Sycamore Park Private Community Group, et al. v. Mountains Recreation and Conservation Authority and Santa Monica Mountains Conservancy; (3) Fishback v. Santa Monica Mountains Conservancy and Mountains Recreation and Conservation Authority; (4) Mountains Recreation and Conservation Authority v. GSV Sustainability Partners, Inc.; (5) Mountains Recreation and Conservation Authority v. Sycamore Park Beach and Tennis Club, et al., and (6) City of Malibu v. Santa Monica Mountains Conservancy, et al.

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California law gives the directors and officers of a corporation principal authority over the corporation’s ordinary affairs. It also identifies certain fiduciary duties that the directors and officers owe to the shareholders and to the corporation itself. Under the “duty of loyalty,” directors and officers must always act in the best interests of the corporation and its shareholders. Breaches of this duty may result in civil liability to the shareholders. An ongoing scandal involving a major media company offers a demonstration, of sorts, of the duty of loyalty, based on allegations against the former chairman and chief executive officer. These allegations also demonstrate how a director might be able to avoid liability by showing a good-faith belief that their actions benefited the corporation.
A director of a corporation operating in California has a duty to act “in good faith…in the best interests of the corporation and its shareholders,” with a level of care that “an ordinarily prudent person in a like position would use.” Cal. Corp. Code § 309(a). This is considered a fiduciary duty to the corporation’s shareholders. Small v. Fritz Companies, Inc., 132 Cal.Rptr.2d 490, 499 (2003).
Self-dealing, such as when an officer or director has a conflict of interest with the corporation and acts both in their own interest and against the corporation’s interests, is a common example of a breach of the duty of loyalty. California law states that an “interested” director can avoid liability if they disclose to the other directors the “material facts” of any transaction in which they have a conflict of interest, and a majority of the non-conflicted directors approve the transaction. Cal. Corp. Code § 310. A breach of the duty of loyalty occurs when a conflicted director fails to disclose or actively conceals material information from the corporation.
The “business judgment rule” provides an important form of protection for directors and officers. Courts generally will not intervene in corporate decisions if the decision-makers acted in good faith and with the reasonable belief that their actions were in the corporation’s best interest. Id. at § 309(c). California law applies “a presumption that directors’ decisions are based on sound business judgment.” Gaillard v. Natomas Company, 208 Cal.App.3d 1250, 1263 (1989). See also Aronson v. Lewis, 473 A.2d 805 (Del. 1984). A shareholder claiming a breach of the duty of loyalty has the burden of overcoming this presumption.
A series of lawsuits are currently alleging sexual harassment against the company that owns and operates Fox News. The former Chairman and CEO is at the center of these claims, and allegations of other possible misconduct have surfaced. One claim alleges that he misappropriated corporate funds and property to run “negative PR campaigns against [his] personal and political enemies.” The source making this claim argues that this “was more about advancing his own agenda than Fox’s,” which would suggest a violation of the duty of loyalty.
These allegations, it is important to note, remain largely unexamined. They raise an interesting question, however, about the business judgment rule. Could the former CEO justify these alleged acts on the grounds that he believed that they were in the corporation’s best interest, or that they actually did benefit the corporation? We might never know the answers, but they present an interesting scenario.
Since 1976, Bay Area business litigation attorney James G. Schwartz has represented the interests of businesses and business owners. To schedule a free and confidential consultation with a knowledgeable and skilled business advocate, contact us today online or at (925) 463-1073.


All qui tam complaints are filed under seal and forwarded to the district’s U.S. Attorney’s Office to provide an opportunity (60 days, which can be extended) for the government to decide whether to intervene. If the government does intervene, the qui tam plaintiff is eligible to receive from 15% to 25% of any recovery; if the government does not intervene, the qui tam plaintiff can receive from 25% to 30% of it. And, either way, the defendant might have to pay a civil penalty of between $10,957 and $21,916 for each false claim and up to treble the amount of the government’s damages — and these amounts are increasing each year. All told, this can add up to a quite a pretty penny.
One key component of a case under the FCA is that the government paid a claim that was false or that was paid under false pretenses based on a false statement. But what is the standard that determines whether the payment was made because of the false statement?
In this article, we canvass a few key opinions from throughout the country that discuss Escobar’s impact. And with that brief introduction, we’re off to the Northeast Region.
This past May, the U.S. Court of Appeals for the Third Circuit “join[ed] the many other federal courts that have recognized the heightened materiality standard after [Escobar].” United States ex rel. Petratos, et al. v. Genentech Inc., 855 F. 3d 481, 492 (3d Cir. 2017). The Third Circuit noted that since last year in Escobar, “[a] misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be actionable under the False Claims Act.” Id. at 488. (internal citations omitted).
Genentech is a pharmaceutical company that sold an FDA-approved cancer drug, which accounted for $1.13 billion a year in Medicare reimbursements. Relator Gerasimo Petratos, former global head of health care data analytics for Genentech, claimed that the company concealed health risks associated with side-effects of the drug, and therefore violated the FCA. Id. at 485.
This case turned on the relator’s ability to establish materiality, which the Third Circuit determined had not been met. The FCA defines materiality as “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money.” 31 U.S.C. § 3729(b)(4). Id. at 488. Escobar and its progeny require the heightened materiality element if one is to successfully allege a violation of the FCA, noting that the material misrepresentation must go to “the very essence of the bargain.” Id. The heightened requirement prevents the FCA from becoming “an all-purpose antifraud statute or a vehicle for punishing garden-variety breaches of contract.” Id. at 89 (citation and internal quotation marks omitted).
The U.S. Court of Appeals for the Second Circuit recently found that the particularity requirement of Federal Rule of Civil Procedure 9(b) applies to allegations of fraud in a qui tam complaint. Chorches v. American Medical Response, Inc., 2017 U.S. App. LEXIS 13585 (2d Cir. July 27, 2017). The district court in that case held that the plaintiff did not satisfy “Rule 9(b) because it provides neither details, such as invoice numbers, invoice dates, and amounts billed or reimbursed, regarding actual requests for payment made to the government, nor a factual basis for its allegations that AMR submitted false claims.” Id. at *17.
The Second Circuit disagreed, noting that “[d]espite the generally rigid requirement [of Rule 9(b)], allegations may be based on information and belief when facts are peculiarly within the opposing party’s know- ledge.” Id. at *18 (internal citations omitted). The court noted that the plaintiff did not have access to the billing or accounting departments at AMR, and without the benefit of discovery, “lacked the ability to identify specific documents containing false claims that AMR submitted to the government.” Id. at *22. The court found that the relator was justified and the Federal Rules of Civil Procedure permitted bringing a claim based upon information and belief that a fraud was committed. So, despite the heightened pleading standards of Escobar and Rule 9(b), the plaintiff’s complaint withstood a motion to dismiss.
We now turn to a closely watched Fourth Circuit case, United States ex rel Badr v. Triple Canopy, Inc., 857 F.3d 174 (4th Cir. 2017), in which the court “readily concluded” that its pre-Escobar decision that the government had properly alleged an FCA claim should stand. On remand from the Supreme Court, the U.S. Court of Appeals for the Fourth Circuit was asked to reconsider whether the government stated a claim against Triple Canopy under the FCA in light of the high court’s ruling in Escobar. In short, the United States had awarded Triple Canopy a contract to provide security services at an airbase in Iraq.
According to the Fourth Circuit’s synopsis of the facts in its May 2017 decision, as part of that contract, Triple Canopy was required to meet certain responsibilities, including ensuring that all employees were qualified on a U.S. Army qualification marksmanship course. Triple Canopy brought in guards from Uganda who were not qualified marksmen. It was further alleged that Triple Canopy falsified its records on this point and submitted invoices to the government for payment on a monthly basis for the unqualified guards. In doing so, Triple Canopy was alleged to have submitted false claims to the government based on the implied certification theory.
After remand, the court rejected Triple Canopy’s argument that the case should be dismissed because it was not required to certify that the guard services complied with contractual responsibilities regarding marksmanship qualifications. Simply, the court held that the Escobar rule “is not as crabbed as Triple Canopy posits.” It continued that “the Court made clear that it was targeting omissions that ‘fall squarely within the rule that half-truths — representations that state the truth only so far as it goes, while omitting critical qualifying information — can be actionable misrepresentations.’ That ‘half-truth’ is exactly what we have here: Although Triple Canopy knew its ‘guards’ had failed to meet a responsibility in the contract, it nonetheless requested payment each month from the Government for those ‘guards.’” Id. at 178 (internal citations omitted).
Further, the Fourth Circuit concluded that, far from undermining its earlier conclusion that Triple Canopy’s falsity was material, Escobar compelled the same result. The panel emphasized that both common sense and Triple Canopy’s own actions in covering up its noncompliance were key factors in its conclusion that the omissions were material. Moreover, the court critically noted that the government did not renew its contract with Triple Canopy and immediately intervened in the FCA lawsuit and held: “Both of these actions are evidence that Triple Canopy’s falsehood affected the Government’s decision to pay. As we explained, the ‘Government’s decision to pay a contractor for providing base security in an active combat zone would be influenced by knowledge that the guards could not, for lack of a better term, shoot straight.’” Id. at 179.
It appears Triple Canopy is a case we should continue to watch, as on August 14, 2017, Triple Canopy filed another petition for a writ of certiorari with the United States Supreme Court. Triple Canopy cites a Circuit split among the Third, Fourth, and Ninth Circuits’ decisions post-Escobar and asks the Supreme Court to address whether merely submitting a request for payment that does not contain specific misrepresentations can give rise to implied certification FCA liability. Time will tell whether the Supreme Court takes up this case again.
Adding to the progeny of Escobar in the Western region, on July 7, 2017, the the U.S. Court of Appeals for the Ninth Circuit resurrected an FCA case that previously had been twice dismissed by the district court. This offspring, however, was different than its siblings discussed above — Petratos from the Third Circuit and Chorches from the Second Circuit — in that the court found the plaintiffs did adequately plead materiality under Escobar, but the case was sent back to the lower court to determine whether the heightened pleading requirements of Federal Rule of Civil Procedure 9(b) were satisfied as well.
The case of United States ex rel. Campie v. Gilead Sciences, Inc., 862 F.3d 890, 2017 U.S. App. LEXIS 12163 (9th Cir. 2017), arose out of a qui tam complaint filed by two plaintiffs who alleged that Gilead misrepresented the efficacy of three of its drugs in seeking approval from the Food & Drug Administration (FDA).
Additionally, Gilead allegedly concealed its use of illegitimate ingredients in these drugs and the efforts the company made to import those ingredients into the United States. One of the relators also asserted a retaliation claim for having been terminated after complaining of Gilead’s improper practices and threatening to disclose the practices to the government. The district court dismissed the complaint twice in 2015 for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), and the plaintiffs appealed. Notably, the United States declined to intervene at the outset of the case, but did request the appellate court to reverse the dismissal.
On appeal, the plaintiffs asserted that their claims should be sustained under the theories of factually false certification, implied false certification, and promissory fraud or fraud-in-the-inducement. The court analyzed each of the theories under the “essential elements of [FCA] liability,” which it explained as: “(1) a false statement of fraudulent course of conduct, (2) made with scienter, (3) that was material, causing (4) the government to pay out money or forfeit moneys due.” 862 F.3d 890, 2017 U.S. App. LEXIS 12163, *21–22 (citing Escobar, 136 S. Ct. at 2000–02; United States v. Nat’l Wholesalers, 236 F.2d 944, 950 (9th Cir. 1956); United States ex rel. Hendow v. Univ. of Phx., 461 F.3d 1166, 1174 (9th Cir. 2006)). For its materiality analysis, the court acknowledged that “the Supreme Court clarified that ‘[t]he materiality standard is demanding.’” Id. at *29 (citing Escobar, 136 S. Ct. at 2003).
Indeed, following its recitation of the guidance provided in Escobar, the court noted that plaintiffs “thus face an uphill battle in alleging materiality sufficient to maintain their claims.” Id. at *30. Despite this high hurdle, the court found the plaintiffs alleged “more than the mere possibility that the government would be entitled to refuse payment if it were aware of [Gilead's] violations” and so sufficiently pleaded “materiality at this stage of the case.” Id. at *34.
In making this finding, the court contrasted the facts of the case before it with those before the court in Petratos, where the Third Circuit found the materiality standard was not met. In Petratos, the relator conceded that CMS would have paid the claims even it knew of the alleged violations and the plaintiff there “did not allege regulatory or statutory violations[.]” Id. at *33 (citing Petratos, 855 F.3d 490). The plaintiffs’ assertions that the government would not have reimbursed the claims had it known of Gilead’s concealment and that Gilead had committed both regulatory and statutory violations were critical to the Ninth Circuit’s finding that the relators had adequately overcome the demanding materiality requirement.
Not all was lost for Gilead, however, with the revival of this matter.
The court made clear that it was declining to determine whether the allegations satisfy the heightened pleading requirements of Federal Rule of Civil Procedure 9(b) because they had not yet been assessed by the district court. Id. at *39. As a result, we will have to wait to see whether Gilead challenges the complaint again on remand. Cf. United States ex rel. Kelly v. Serco, Inc., 846 F.3d 325, 337 (9th Cir. 2017) (affirming grant of summary judgment against relator for failing to “satisfy the ‘rigorous’ and ‘demanding’ standard for materiality set forth in Escobar“).
So, where does this leave us? Different circuits have started to take different tacks with claims based on the Supreme Court’s opinion in Escobar. The opinion is relatively recent, so there will undoubtedly be more to come. But for now, qui tam litigants should be mindful of the changes to the pleading rules in their particular jurisdiction because of Escobar’s lineage. They should also watch other circuits in the country to see whether other courts’ rulings create opportunities in their litigation.
Danielle Corcione and Daniel Wenner are attorneys with Day Pitney. Robert Marasco, a former federal prosecutor, is a partner with the Litigation Department of Dinsmore. Jennifer Mitchell is a partner in Dinsmore’s Health Care Practice Group.


Interest rates: underpayments and overpayments. The rates for interest determined under Section 6621 of the code for the calendar quarter beginning October 1, 2017, will be 4 percent of overpayments (3 percent in the case of a corporation), 4 percent for underpayments, and 6 percent for large corporate underpayments. The rate of interest paid on the portion of a corporate overpayment exceeding $10,000 will be 1.5 percent.
This notice provides that the IRS will not assert that cash payments an employer makes to § 170(c) organizations (in exchange for vacation, sick, or personal leave that its employees elect to forgo) constitute gross income or wages of the employees under certain circumstances relating to Hurricane Harvey or Tropical Storm Harvey.
Announcement 2017–11 provides relief to victims of Hurricane Harvey, which caused damage to Texas. It permits easier access to victims’ funds held in workplace retirement plans and in IRAs, for the period beginning August 23, 2017, and ending January 31, 2018. The relief provided in the announcement is in addition to the relief already provided by the IRS pursuant to News Release IR–2017–135.
See section 6621(c) and section 301.6621–3 of the Regulations on Procedure and Administration for the definition of a large corporate underpayment and for the rules for determining the applicable date. Section 6621(c) and section 301.6621–3 are generally effective for periods after December 31, 1990.
The federal short-term rate determined in accordance with section 1274(d) during July 2017 is the rate published in Revenue Ruling 2017–15, 2017–32 IRB 176, to take effect beginning August 1, 2017. The federal short-term rate, rounded to the nearest full percent, based on daily compounding determined during the month of July 2017 is 1 percent. Accordingly, an overpayment rate of 4 percent (3 percent in the case of a corporation) and an underpayment rate of 4 percent are established for the calendar quarter beginning October 1, 2017. The overpayment rate for the portion of a corporate overpayment exceeding $10,000 for the calendar quarter beginning October 1, 2017 is 1.5 percent. The underpayment rate for large corporate underpayments for the calendar quarter beginning October 1, 2017, is 6 percent. These rates apply to amounts bearing interest during that calendar quarter.
Sections 6654(a)(1) and 6655(a)(1) provide that the underpayment rate established under section 6621 applies in determining the addition to tax under sections 6654 and 6655 for failure to pay estimated tax for any taxable year. Thus, the 4 percent rate also applies to estimated tax underpayments for the fourth calendar quarter beginning October 1, 2017 In addition, pursuant to section 6603(d)(4), the rate of interest on section 6603 deposits is 1 percent for the fourth calendar quarter in 2017.
Interest factors for daily compound interest for annual rates of 1.5 percent, 3 percent, 4 percent and 6 percent are published in Tables 8, 11, 13 and 17 of Rev. Proc. 95–17, 1995–1 C.B. 562, 565, 567 and 571.
The principal author of this revenue ruling is Richard Duenas of the Office of the Associate Chief Counsel (Procedure and Administration). For further information regarding this revenue ruling, contact Mr. Duenas at (202) 317-6877 (not a toll-free number).
This notice provides guidance on the treatment of leave-based donation programs to aid victims of Hurricane Harvey and Tropical Storm Harvey.
In response to the extreme need for charitable relief for victims of Hurricane Harvey and Tropical Storm Harvey, employers may have adopted or may be considering adopting leave-based donation programs. Under leave-based donation programs, employees can elect to forgo vacation, sick, or personal leave in exchange for cash payments that the employer makes to charitable organizations described in § 170(c) of the Internal Revenue Code (§ 170(c) organizations). This notice provides guidance for income and employment tax purposes on the treatment of cash payments made by employers under leave-based donation programs for the relief of victims of Hurricane Harvey and Tropical Storm Harvey.
The Internal Revenue Service (the Service) will not assert that cash payments an employer makes to § 170(c) organizations in exchange for vacation, sick, or personal leave that its employees elect to forgo constitute gross income or wages of the employees if the payments are: (1) made to the § 170(c) organizations for the relief of victims of Hurricane Harvey and Tropical Storm Harvey; and (2) paid to the § 170(c) organizations before January 1, 2019.
Similarly, the Service will not assert that the opportunity to make such an election results in constructive receipt of gross income or wages for employees. Electing employees may not claim a charitable contribution deduction under § 170 with respect to the value of forgone leave excluded from compensation and wages.
The Service will not assert that an employer is permitted to deduct these cash payments exclusively under the rules of § 170 rather than the rules of § 162. Cash payments to which this guidance applies need not be included in Box 1, 3 (if applicable), or 5 of the Form W–2.
For further information, please contact Michael J. Montemurro of the Office of Associate Chief Counsel (Income Tax and Accounting) at (202) 317-4718 (not a toll-free number).
As described below, a qualified employer plan will not be treated as failing to satisfy any requirement under the Code or regulations merely because the plan makes a loan, or a hardship distribution for a need arising from Hurricane Harvey, to an employee or former employee whose principal residence on August 23, 2017, was located in one of the Texas counties identified for individual assistance by the Federal Emergency Management Agency (“FEMA”) because of the devastation caused by Hurricane Harvey or whose place of employment was located in one of these counties on that applicable date or whose lineal ascendant or descendant, dependent, or spouse had a principal residence or place of employment in one of these counties on that date. The counties identified for individual assistance by FEMA can be found on FEMA’s website at https://www.fema.gov/disasters. If additional areas in Texas or other states are identified by FEMA for individual assistance because of damage related to Hurricane Harvey, the relief provided in this announcement will also apply, from the date specified by FEMA as the beginning of the incident period, and that date should be substituted for references to August 23, 2017, in this announcement. Plan administrators may rely upon representations from the employee or former employee as to the need for and amount of a hardship distribution, unless the plan administrator has actual knowledge to the contrary, and the distribution is treated as a hardship distribution for all purposes under the Code and regulations.
For purposes of this announcement, a “qualified employer plan” means a plan or contract meeting the requirements of § 401(a), 403(a) or 403(b), and, for purposes of the hardship relief, that could, if it contained enabling language, make hardship distributions. For purposes of this paragraph, a “qualified employer plan” also means a plan described in § 457(b) maintained by an eligible employer described in § 457(e)(1)(A), and any hardship arising from Hurricane Harvey is treated as an “unforeseeable emergency” for purposes of distributions from such plans. For example, a profit-sharing or stock bonus plan that currently does not provide for hardship or other in-service distributions may nevertheless make hardship distributions related to Hurricane Harvey pursuant to this announcement, except from QNEC or QMAC accounts or from earnings on elective contributions (see below for plan amendment requirements). A defined benefit or money purchase plan, which generally cannot make in-service hardship distributions, may not make hardship distributions pursuant to this announcement, other than from a separate account, if any, within the plan containing either employee contributions or rollover amounts.
To make a loan or hardship distribution pursuant to the relief provided in this announcement, a qualified employer plan that does not provide for them must be amended to provide for loans or hardship distributions no later than the end of the first plan year beginning after December 31, 2017. To qualify for the relief under this announcement, a hardship distribution must be made on account of a hardship resulting from Hurricane Harvey and be made on or after August 23, 2017, and no later than January 31, 2018. Plan loans made pursuant to this announcement must satisfy the requirements of § 72(p).
In addition, a retirement plan will not be treated as failing to follow procedural requirements for plan loans (in the case of retirement plans other than IRAs) or distributions (in the case of all retirement plans, including IRAs) imposed by the terms of the plan merely because those requirements are disregarded for any period beginning on or after August 23, 2017, and continuing through January 31, 2018, with respect to loans or distributions to individuals described in the first paragraph under “Relief”, above, provided the plan administrator (or financial institution in the case of distributions from IRAs) makes a good-faith diligent effort under the circumstances to comply with those requirements. However, as soon as practicable, the plan administrator (or financial institution in the case of IRAs) must make a reasonable attempt to assemble any forgone documentation. For example, if spousal consent is required for a plan loan or distribution and the plan terms require production of a death certificate if the employee claims his or her spouse is deceased, the plan will not be disqualified for failure to operate in accordance with its terms if it makes a loan or distribution to an individual described in the first paragraph under “Relief” in the absence of a death certificate if it is reasonable to believe, under the circumstances, that the spouse is deceased, the loan or distribution is made no later than January 31, 2018, and the plan administrator makes reasonable efforts to obtain the death certificate as soon as practicable. For purposes of this announcement, “retirement plan” has the same meaning as “eligible retirement plan” under § 402(c)(8)(B).


text:
The Respondent is Whois Privacy Protection Service / Sprout Ltd., mamoru shiga of Kanagawa, Japan and Fukuoka, Japan, respectively.
The disputed domain name <swarovski-shop.net> is registered with GMO Internet, Inc. d/b/a Discount-Domain.com and Onamae.com (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 24, 2012. On July 24, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 25, 2012, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 26, 2012, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on July 26, 2012.
The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”). On July 26, 2012, the Center issued a Language of Proceeding notification in both English and Japanese, inviting comment from the parties. In the same notification, the Center advised the Respondent of that if the Center did not hear from the Respondent by the due date of July 31, 2012, the Center would proceed on the basis that the Respondent had no objection to the Complainant’s request that English be the language of proceedings. On July 26, 2012, the Complainant submitted a request that English be the language of the proceeding. The Respondent did not submit any objection to the Complainant’s request by the due date of July 31, 2012.
The Center appointed Ho-Hyun Nahm as the sole panelist in this matter on September 17, 2012. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The disputed domain name was registered on October 31, 2005.
(iv) The Complainant requests the transfer of the disputed domain name.
The Registrar of the disputed domain name has informed the Center that the language of the relevant registration agreement was Japanese. On July 26, 2012, the Center issued in English and Japanese a Language of Proceeding Notification. On July 26, 2012, the Complainant submitted a request that English be the language of the proceeding, as originally requested in the Complaint, on the grounds that it is presumable that the Respondent is able to communicate in English from the following facts: i) the Respondent knows English at least, as proven by the content of the website at the disputed domain name (even though the Panel notes that at the date of this decision the website is in Japanese); ii) the Respondent appears to operate internationally in multiple languages; and iii) that Swarovski is an international brand with registered marks in multiple jurisdictions whose international business primarily operates in English.
The Respondent did not submit any objection to the Complainant’s request that English be the language of the proceeding, notwithstanding the Center’s notifying the Respondent (in both English and Japanese) that the Center would proceed on the basis that the Respondent has no objection to the Complainant’s request that English be the language of proceedings if the Respondent did not submit an objection by July 31, 2012.
In any event, the Respondent failed to submit a Response in either language and declined to participate in the proceeding. On the other hand, the Complainant is not able to communicate in Japanese, and therefore, if the Complainant were to submit all documents in Japanese, the administrative proceeding would be unduly delayed and the Complainant would have to incur substantial expenses for translation.
The Center gave the Respondent the opportunity to file the Response in either language. The Center did this by notifying the Complainant of the Center’s preliminary decision to accept a Response in either Japanese or English and appoint a panel familiar with both languages. Notwithstanding the Center’s notification, the Respondent did not submit any response by the due date, and thus it is in default.
The Complainant owns trademark registrations for the word mark SWAROVSKI around the world, including in Japan as seen in Section 4 (“Factual Grounds”) above. The word “shop” in the disputed domain name is generic and descriptive in relation to the retail shops regardless of online or offline. The Panel finds that the addition of the term “shop” as a suffix to the SWAROVSKI mark does not lessen the confusing similarity between the disputed domain name and the Complainant’s mark. (See Swarovski Aktiengesellschaft v. blue crystal, WIPO Case No. D2012-0630; and Swarovski Aktiengesellschaft v.Bingbing Chen, WIPO Case No. D2010-1736).
The prominent portion, “swarovski,” of the disputed domain name is identical with the Complainant’s trademark SWAROVSKI, and thus the Panel has found that the disputed domain name is confusingly similar to the Complainant’s trademark, and the first element of the Policy has been established.
The Panel has found that the Respondent has no connection or affiliation with the Complainant or its marks and has not received any license or consent, express or implied, to use the SWAROVSKI mark in a domain name or in any other manner. The Panel further finds that on the record, it has been established that the Respondent has never been known by the disputed domain name.
The Panel has recognized that Swarovski is the world’s leading producer of cut crystal, genuine gemstones and created stones from the facts that it has production facilities in 18 countries, distribution to 42 countries and a presence in more than 120 countries with its products sold in 1218 of its own boutiques with a revenue in 2011 of EUR 2.87 billion. The Complainant has spent substantial time, effort and money advertising and promoting the SWAROVSKI marks in Japan and worldwide as evidenced by Annex D through G to the Complaint. The Complainant’s rights in the SWAROVSKI marks have been recognized by previous UDRP panels (Swarovski Aktiengesellschaft v. Lybing Fei, WIPO Case No. D2012-0187; and Swarovski Aktiengesellschaft v. liu ji, WIPO Case No. D2011-0353). In consideration of the circumstances above, the Panel has found that the Complainant’s SWAROVSKI marks have become famous and well known in Japan and worldwide.
In light of the well-known status of the Complainant’s SWAROVSKI marks, well before the registration date of the disputed domain name, it is presumed by the Panel that the Respondent registered the disputed domain name with the knowledge of the Complainant’s rights in the SWAROVSKI marks. The Panel finds that it is inconceivable that the Respondent was unaware of the Complainant’s rights in the SWAROVSKI marks, in that it is unlikely that the Respondent would have registered the disputed domain name unless it was aware of the existence of the trademark SWAROVSKI or that the disputed domain name might be of some type of economic advantage to the Respondent. (See The Gap, Inc. v. Deng Youqian, WIPO Case No. D2009-0113; Caesars World, Inc. v. Forum LLC, WIPO Case No. D2005-0517; Swarovski Aktiengesellschaft v. James Johnson, WIPO Case No. D2012-0080; Swarovski Aktiengesellschaft v. Liu Ji, WIPO Case No. D2011-0445; and Swarovski Aktiengesellschaft v. Christine Jil, WIPO Case No. D2011-0981).
Registration of the disputed domain name incorporating famous Complainant’s mark SWAROVSKI by an entity that has no legitimate relationship with the Complainant itself demonstrates bad faith (Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003).
The Respondent has done nothing to identify itself as being independent from the Complainant. On the contrary, the Respondent has incorporated SWAROVSKI mark in the disputed domain name and used the Complainant’s mark, throughout the website resolved by the disputed domain name, in the “title bar” and purports to sell SWAROVSKI products. The Panel views such a behavior to be considered as constituting bad faith use of the disputed domain name even if the products the Respondent offer for sale were genuine goods because the Internet users are highly likely to conceive the website resolved to the disputed domain name to be operated by the Complainant or its authorized agents. This is one of the typical methods to attract and redirect Internet users to the website resolved to by disputed domain names for commercial gain. The Panel further finds that the Respondent’s registration and use of the disputed domain name creates “initial interest confusion”, which attracts Internet users to the website at the disputed domain name because of its purported affiliation with the Complainant’s mark SWAROVSKI. Furthermore, the Respondent failed to prove good faith use of the disputed domain name because it did not submit any Response to the Complaint.
As such, the Panel concludes that the Respondent registered and used the disputed domain name in bad faith, and the third element of Policy has been established.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <swarovski-shop.net> be transferred to the Complainant.

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In condemnation proceedings, the Government obtained a judgment of "immediate possession" of a pipeline right of way across a tract of land, and it entered into physical possession in 1943 and laid the pipeline through the tract. In 1945, the owners conveyed the tract of land to respondent by a deed which was construed by the trial court as intended to convey "all their right, title and interest" in the tract "or in the award to be made for the same." In 1946, the Government, acting under the Declaration of Taking Act, filed a declaration covering the pipeline right of way, deposited compensation in court, and obtained a judgment on the declaration of taking.
Held: the "taking" occurred in 1943, when the Government entered into physical possession of the land; the assignment of the claim for compensation was invalid under the Assignment of Claims Act; and the respondent was not entitled to receive the compensation award. Pp. 357 U. S. 18-27.
(a) In view of the trial court's express finding that the grantors intended to convey their right to the compensation award, the transfer of the claim was a voluntary assignment, rather than an assignment taking effect by operation of law, and, therefore, it was prohibited by the Assignment of Claims Act. P. 357 U. S. 20.
(b) Since compensation is due at the time of taking, the owner at that time, not the owner at an earlier or later date, is entitled to receive the compensation award. Pp. 357 U. S. 20-21.
(c) When the Government enters into possession of property prior to the acquisition of title, it is the former event which constitutes the act of taking and gives rise to the claim for compensation. Pp. 357 U. S. 21-22.
(d) A different result is not required by the fact that, after the conveyance, the Government filed a declaration of taking and obtained title under the Declaration of Taking Act. Pp. 357 U. S. 22-26.
(e) In cases like this, the total compensation should not be divided between the first and second owners of the property, the former taking that portion of the award attributable to the Government's use of the property until the passage of title and the latter receiving the balance. Pp. 357 U. S. 26-27.
(f) Equitable considerations do not require that respondent receive part or all of the compensation award in the circumstances of this case. P. 357 U. S. 27.
The issue in this case arises out of a condemnation proceeding in which the United States acquired an easement pursuant to its power of eminent domain. The principal question presented is whether the claim to "just compensation" vested in the owners of the land at the time the United States entered into possession of the easement pursuant to court order in 1943 or whether such claim vested in the respondent, Dow, who acquired the land in 1945 at the time the United States filed a declaration of taking in 1946, under the Declaration of Taking Act of February 26, 1931, 46 Stat. 1421, 40 U.S.C. §§ 258a-258e.
March 27, 1942, 56 Stat. 176, 177. As requested in the petition, the District Court ordered the United States into the "immediate possession" of this strip. Within the next ten days, the United States entered into physical possession and began laying the pipeline through the tract. The line was completed in 1943, and has been in continuous use since that time.
In November, 1945, the 617-acre tract was conveyed to Dow by a general warranty deed which specifically excepted the pipeline right of way as being subject to the condemnation proceedings. In May, 1946, the Government filed a declaration of taking, under the Declaration of Taking Act, covering this pipeline strip. Estimated compensation was deposited in court and judgment on the declaration of taking was entered. A few months later, the Government amended its petition to name additional parties, including Dow, who were alleged to be asserting an interest in the land. The question of compensation was referred to commissioners under the Texas practice, which at that time was applicable to federal condemnation proceedings. See United States v. Miller, 317 U. S. 369, 317 U. S. 379-380. After a hearing at which Dow appeared, the commissioners, in 1948, awarded $4,450 for imposition of the pipeline easement.
of Appeals reversed, holding that no assignment was involved because no claim to compensation against the United States "arose and vested" until the filing of the declaration of taking in 1946, and that, because Dow, by that time, had become owner of the land, he was entitled to the award. 238 F.2d 898. Because the question presented bears importantly on rights resulting from federal condemnation proceedings, we granted the Government's petition for certiorari. 353 U.S. 972.
earlier or later date, receives the payment."
Danforth v. United States, 308 U. S. 271, 308 U. S. 284; cf. United States v. Dickinson, 331 U. S. 745. We hold, contrary to the Court of Appeals, that the "taking" did not occur in 1946, when the Government filed its declaration of taking, but rather when the United States entered into possession of the land in 1943. It follows that the landowners in 1943 were entitled to receive the compensation award, and that Dow is not entitled to recover in this action.
Broadly speaking, the United States may take property pursuant to its power of eminent domain in one of two ways: it can enter into physical possession of property without authority of a court order or it can institute condemnation proceedings under various Acts of Congress providing authority for such takings. Under the first method -- physical seizure -- no condemnation proceedings are instituted, and the property owner is provided a remedy under the Tucker Act, 28 U.S.C. §§ 1346(a)(2) and 1491, to recover just compensation. See Hurley v. Kincaid, 285 U. S. 95, 285 U. S. 104. Under the second procedure, the Government may either employ statutes which require it to pay over the judicially determined compensation before it can enter upon the land, Act of August 1, 1888, 25 Stat. 357, 40 U.S.C. § 257; Act of August 18, 1890, 26 Stat. 316, 50 U.S.C. § 171, or proceed under other statutes which enable it to take immediate possession upon order of court before the amount of just compensation has been ascertained. Act of July 18, 1918, 40 Stat. 904, 911, 33 U.S.C. § 594; Title II of the Second War Powers Act of March 27, 1942, 56 Stat. 176, 177 (employed by the Government in the present case).
into court pursuant to the Taking Act, see infra, the passage of title does not necessarily determine the date of "taking." The usual rule is that, if the United States has entered into possession of the property prior to the acquisition of title, it is the former event which constitutes the act of taking. It is that event which gives rise to the claim for compensation and fixes the date as of which the land is to be valued and the Government's obligation to pay interest accrues. See United States v. Lynah, 188 U. S. 445, 188 U. S. 470-471; United States v. Rogers, 255 U. S. 163; Seaboard Air Line R. Co. v. United States, 261 U. S. 299. The owner at the time the Government takes possession "rather than the owner at an earlier or later date, is the one who has the claim and is to receive payment." 23 Tracts of Land v. United States, supra, 177 F.2d at 970.
Had the Government not subsequently filed a declaration of taking in this case, there is no reason to believe that these ordinary rules would not have been applicable; the owners of the parcel when the Government entered into possession in 1943 would then have been entitled to compensation. No suggestion to the contrary has been made by Dow. Instead, Dow contends that, although there was an entry into possession in 1943 which was an appropriation of the property sufficient to amount to a "taking," the subsequent filing of a declaration of taking vitiated the effect of the earlier entry, and rendered the filing date the time of the taking. We think that this contention is founded on a mistaken view of the Declaration of Taking Act and must be rejected.
use of the United States, and the right to just compensation . . . shall vest in the persons entitled thereto. . . ."
Although it has been recognized that the "exact effect of these provisions is not entirely clear," Catlin v. United States, 324 U. S. 229, 324 U. S. 240, past cases in this Court have established certain unchallenged principles pertinent to the present controversy. The Taking Act does not bestow independent authority to condemn lands for public use. On the contrary, it provides a proceeding "ancillary or incidental to suits brought under other statutes," Catlin v. United States, supra, at 324 U. S. 240. Such a proceeding can be instituted either at the commencement of the condemnation suit under the "other statutes" or, as in this case, after such a suit has been commenced and either before or after the Government has taken possession. In both situations, the Taking Act enables the United States to acquire title simply by depositing funds "for or on account" of the just compensation to be awarded the owners, rather than by making payment pursuant to a court order. In those cases where the Government has not yet entered into possession, the filing of the declaration enables it to enter immediately and relieves it of the burden of interest from the time of filing to the date of judgment in the eminent domain proceedings. See United States v. Miller, supra, at 317 U. S. 380-381.
The scheme of the Taking Act makes it plain that, when the Government files a declaration before it has entered into possession of the property, the filing constitutes the "taking." But neither the language nor the history of the Act provides a reliable indication as to the intention of Congress in cases, such as the one before us, where a declaration is filed after the Government has taken possession. Nevertheless, a number of considerations have led us to the view that, in such cases, the date of "taking" is the date on which the Government entered and appropriated the property to public use.
"If a pie-powder court could be called on the instant and on the spot, the true rule of justice for the public would be to pay the compensation with one hand whilst they apply the axe with the other."
Parks v. Boston, 15 Pick., Mass., 198, 208. See also Anderson v. United States, 179 F.2d 281. Similarly, because interest for delay in payment would not begin to accrue until payment of compensation is due, the Government would be absolved of interest until it chose to file a declaration of taking, even though it had already been in possession, to the exclusion of the property owner, for some time. Cf. Seaboard Air Line R. Co. v. United States, supra.
There is another reason why we cannot regard the time of filing as the time of the "taking" in cases where the Government has already entered into possession. Because of the uncertainty when, if ever, a declaration would be filed after the Government's entry, manipulations might be encouraged which could operate to the disadvantage of either the landowner or the United States. The Government tells us that the declaration of taking procedure may be invoked "solely in the discretion of the administrative officer." It would thus lie within the power of such an officer to reduce the "just" compensation due the property owner by staying his hand until a market situation favorable to the Government had developed. Conversely, landowners might be in a position to increase unduly the Government's liability. For instance, if a single tract of land were worth more than the sum of its component parcels, cf. United States v. Runner, 174 F.2d 651, owners of adjacent condemned properties could consolidate their holdings after the Government's entry solely for the purpose of obtaining a larger award.
We cannot attribute to Congress the intention to promulgate a rule which would open the door to such obvious incongruities and undesirable possibilities.
We are not persuaded by any of the countervailing considerations put forward by Dow. It is claimed that much needed certainty would ensue in condemnation matters were the Court to hold that the Government's filing under the Taking Act invariably established the date of the "taking" of this property. But certainty is not lacking under the rule advocated by the Government, which fixes the "taking" at the time of the entry into physical possession -- a fact readily ascertainable whether or not the Government makes use of condemnation proceedings and whether or not it ever files a declaration of taking.
It is also argued that a property owner might be prejudiced under the Government's view because the project could be abandoned and the condemnation proceedings discontinued before title passed to the Government. But the possibility of such an abandonment exists whenever the Government enters into possession of property without filing a declaration of taking and without otherwise providing compensation for acquisition of the title. In any event, such an abandonment does not prejudice the property owner. It merely results in an alteration in the property interest taken -- from full ownership to one of temporary use and occupation. O'Connor v. United States, 155 F.2d 425; Moody v. Wickard, 78 U.S.App.D.C. 80, 136 F.2d 801; cf. Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641, 135 U. S. 660. In such cases, compensation would be measured by the principles normally governing the taking of a right to use property temporarily. See Kimball Laundry Co. v. United States, 338 U. S. 1; United States v. Petty Motor Co., 327 U. S. 372; United States v. General Motors Corp., 323 U. S. 373.
Nor can we accept the suggestion that, in cases like the present one, the total compensation should be divided between the first and second owners of the property, the former taking that portion of the award attributable to the Government's use of the property until the passage of title and the latter receiving the balance. Cf. United States v. 40,379 Square Feet of Land, 58 F.Supp. 246. To require the Government to deal with more than one party, particularly when division of the condemnation award would entail a complex apportionment, might severely impede the orderly progress of condemnation proceedings, and would conflict with the policies underlying the Anti-Assignment Act. See Hobbs v. McLean, 117 U. S. 567, 117 U. S. 576; United States v. Aetna Casualty & Surety Co., supra.
Dow relies on Danforth v. United States, supra, and United States v. Dickinson, supra, but neither case is in point on the issue before us. In Danforth, the Court rejected the landowner's claim for interest on the ground, inter alia, that the construction of a set-back levee near his land did not amount to a "taking" because the Government, by such action, had not yet appropriated the property to its use. The expressly limited holding in Dickinson was that the statute of limitations did not bar an action under the Tucker Act for a taking by flooding when it was uncertain at what stage in the flooding operation the land had become appropriated to public use. In the present case, there is no dispute over the fact that the United States appropriated Parcel 1 on the date that it entered into physical possession under order of the District Court.
Finally, we see no merit in the suggestion that it is inequitable to deny Dow recovery in this action. Dow took his deed with full notice of the condemnation proceeding brought by the United States. There were readily available contractual means by which he could have protected himself vis-a-vis his grantors against the contingency that his claim against the United States would be subsequently invalidated by the Anti-Assignment Act. And whatever may be the equities between the former owners and Dow, or between the Government and the former owners, whose claim to compensation Dow asserts may be barred by the statute of limitations, such equities cannot serve to prevent the application of the correct rule of law as between the Government and Dow in this case. Cf. McKenzie v. Irving Trust Co., 323 U. S. 365, 323 U. S. 369.
"they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. . . ."