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Within the use of this website we, as the data controller, collect and store the data you provided as long and so far this is necessary to fulfil the specified purposes and legal obligations. In the following we will inform you what data is involved, how the data is processed and what rights you have in this regard.
According to Article 4 no. 1 General Data Protection Regulation (GDPR) personal data means any information relating to an identified or identifiable natural person (in the following "data subject or user").
You can always reach out to our data protection officer directly if you have any questions about data protection law or about your rights as a data subject.
Data processing pursuant to numbers 1-6: The first sentence of Art. 6 Subs. 1 Sentence 1 lit. f GDPR (legitimate interests). Our legitimate interests in the processing of data are based on our desire to offer user-friendly optimised web pages.
After the set period of 30 days, our web server automatically deletes the above-mentioned data, unless we are obliged to longer storage under Art. 6 Subs. 1 Sentence 1 lit. c GDPR due to tax- and commercial-law retention and documentation duties, to comply with obligations following the Horizon 2020 agreement (e.g. a documentation obligation for 5 years following Art. 18 Grant Agreement Number 696140) or you have consented to a prolonged period under Art. 6 Subs. 1 Sentence 1 lit. a GDPR. Under no circumstances do we use the collected data for the purpose of drawing conclusions about your person.
In addition, to open a user account you have to enter a password of your choice. Together with your username this provides access to your user account.
Our website offers an automatic standardized evaluation of submitted energy efficiency or renewable energy proposals for a possible financing or re-financing in the future. The use of this service requires prior registration. Recording of data upon registration by a user is used to process and evaluate proposals for a possible financing or re-financing of the project in the future.
After your user account is deleted, your personal data are automatically deleted, unless we are obliged to longer storage under Art. 6 Subs. 1 Sentence 1 lit. c GDPR due to tax- and commercial-law retention and documentation duties, to comply with obligations following the Horizon 2020 agreement (e.g. a documentation obligation for 5 years following Art. 18 Grant Agreement Number 696140) or you have consented to a prolonged period under Art. 6 Subs. 1 Sentence 1 lit. a GDPR.
Your personal Data will not be transferred to third parties (i.e. to natural and legal persons other than you, the data subject, the controller or the service provider or its vicarious agents) for purposes other than those specified below.
(in the following: single "consortium member" and together "consortium"). The consortium members are joint controller according to Art. 26 Subs. 1 Sentence 1 GDPR.
The legal foundation for the data transfer is Art. 6 Subs. 1 Sentence 1 lit. f GDPR. Our legitimate interest follows from the expertise of the consortium and their help with the evaluation of the proposal. One of the consortium members will use the data to personally assess the proposal in the third stage and get in contact with you to validate your proposal, which happens in our legitimate interest. The consortium member may use the submitted data for own research purposes or research purposes of the consortium.
Following Art. 26 Subs 3 GDPR you may exercise your rights (see Section 6 and 7) under the GDPR in respect of and against each of the controllers. You may request to receive information about the essence of the joint controller arrangement to the controller (see Section 1).
After the assessment of the proposal and the conclusion of the final report your data will be transferred to potential financial partners in order to enable a potential investments in the submitted and evaluated proposal.
The legal foundation for the data transfer is Art. 6 Subs. 1 Sentence 1 lit. f GDPR. Our legitimate interest follows from our long term goal to support projects in the area of energy efficiency and renewable energy with their implementation and execution by finding financial partners for them.
The transferred data may be used by third parties only for the stated purposes. Personal data will not be transferred to government bodies or public authorities except in order to comply with mandatory national legislation or if the transfer of such data should be necessary in order to take legal action in cases of fraudulent access to our network infrastructure or to comply with our obligations following the Horizon 2020 agreement. Personal data will not be transferred for any other purpose.
The data obtained with the help of cookies help us pursue our legitimate interests as website owners and serve the legitimate interests of third parties pursuant to the first sentence of Art. 6Subs. 1 Sentence 1 lit. f GDPR.
The following tracking measures which we use are carried out on the basis of Art. 6 Subs. 1 Sentence 1 lit. f GDPR.
On our website, we use the Matomo open source service by InnoCraft Ltd in 150 Willis St., 6011 Wellington, New Zealand to analyse the activities of our website users and to optimise our website and its content based on this analysis. During this process, we do not receive any information that identifies our users.
To the extent that we collect IP addresses, these addresses are stripped of their last control number block upon collection to anonymise the IP addresses instantly. We delete further personal data stored in the cookie at the end of each session.
We process statistical data based on our legitimate interest pursuant to of Art. 6 Subs. 1 Sentence 1 lit. f GDPR in the optimisation of our online offering and our web presence.
In so far as your personal data are processed on the basis of legitimate interests pursuant to Art. 6 Subs. 1 Sentence 1 lit. e and Art. 6 Subs. 1 Sentence 1 lit. f GDPR, you have the right, pursuant to Art. 21 GDPR, to object to the processing of your personal data, in so far as there are grounds arising from your particular situation or it relates to objection to direct marketing. In the latter case, you have a general right to object which we shall heed without the stating of a particular situation; This also applies to profiling based on those provisions as defines in Art. 4 no 4 GDPR.
If you want to exercise your right to object, simply send an email to datenschutz(at)zv.fraunhofer.de.
We also use suitable technical and organisational security measures to protect your data against accidental or intentional manipulation, partial or complete loss, de-struction or against unauthorised access by third parties. Our security measures are continually monitored and improved to reflect technological developments.
This Data Protection Policy is the latest version and was last amended as of November 2018.

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25casbairdne, 11 § 16 .
every side, Críth Gabl. 219 . no sneded a bunsaig, TBC 892 .
slaitt i cend seta ┐ imthechta, 400 § 5 .
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? snídech adjIn name of a shield: in Sencholl Snídhech, Duan.
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ZCP vii 483.21 ( Enchirid. Aug. 80b ).
a s. ¤ , Cog. 174.22 .
snige vn. of snigid (see also 3 senad). Occas. spelt snaige.
snighe f., IGT Decl. § 3 (44.9) . Verbs § 74 .
┐ ag tebersain mar badh sruth, Fl. Earls 244.19 . tobair . . .
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80 shedding his blood for thee, IGT Decl. ex. 168 = DDána 41.32 .
(leg. snige?) | a toigh Rīgh nime gan mairg, ZCP xii 395.y .


As provided in these definitions, meetings of state government entities are subject to the open meetings law.
The FOIA applies to the “governing bodies” of “all boards, bureaus, commissions, or organizations of the State of Arkansas.” Ark. Code Ann. § 25-19-106(a). See, e.g., Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975) (holding FOIA applied to board of trustees of state university). Generally, a group that has ultimate decision-making or policy-making authority is a governing body. Ark. Op. Att’y Gen. Nos. 2014-124, 2006-059, 2003-170. If decision-making authority has been delegated by the governing body to a committee or other group, the open meetings requirement goes along with the delegation. Baxter Cnty. Newspapers Inc. v. Med. Staff of Baxter Gen. Hosp., 273 Ark. 511, 622 S.W.2d 495 (1981); Ark. Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975); Ark. Op. Att’y Gen. Nos. 2002-092, 98-103.
(5) the California State Bar. Cal. Gov’t Code § 11121(e).
Colo. Rev. Stat. § 24-6-402(1)(d) defines a "state public body" subject to the Sunshine Law as any board, committee, commission, or other advisory, policy-making, rule-making, decision-making, or formally constituted body of any state agency or authority, as well as to the general assembly (legislature). Also included within this definition are the governing board of any state institution of higher education, specifically including the Regents of the University of Colorado, and any public or private entity to which the state, or an official thereof, has delegated a governmental decision-making function, but not persons on the administrative staff of the state public body.
State governmental bodies are covered by the Act. See Del. Op. Att'y Gen., No. 99-ib16 (Dec. 17, 1999) (addressing alleged violations of the Delaware Department of Transportation).
The Act applies to “every state department, agency, board, bureau, office, commission, public corporation and authority.” O.C.G.A. § 50-14-1(a)(1)(A).
Yes. The definition expressly includes state entities, id. § 92-2, to which the law applies. Id. § 92-71 (1996).
In Safe Air for Everyone v. Idaho State Dept. of Agriculture, et al, 145 Idaho 164, 177 P.3d 378 (2008), the Idaho Supreme Court was asked to consider whether the Open Meetings Act applied when Department of Agriculture employees attended an intergovernmental meeting to discuss issues related to crop residue burning. After noting that the crop residue disposal program was not a sub-agency of the Department of Agriculture, the court turned its attention to the definition of “governing body” under Idaho Code § 67-2341(5) [now Idaho Code § 74-202(5)]. The court held that since a “governing body” must have “the authority to make decisions for or recommendations to a public agency regarding any matter and because the employees at issue did not have “the authority” to make decisions for or recommendation to the Department of Agriculture, they did not constitute members of a “governing body” subject to the requirements of the Open Meetings Act. “The legislature has required that various bodies and commissions transact business at a meeting where a quorum is present. It has not imposed that requirement upon groups of public employees.” Safe Air for Everyone, 145 Idaho at 168 (internal citations omitted).
State agencies are included under the Act. Ind. Code § 5.14-1.5-2(a).
The statute applies. While state government is created, not by statute, but by constitutional provision (Iowa Const. Arts. III, IV and V), the state has never sought to argue that it is exempt from compliance.
See above. State governments are subject to the law. K.S.A. 75-4318(a).
The Open Meetings Act applies to the governing bodies of state agencies. See Ky. Rev. Stat. 61.810(1).
The State of Maine is subject to the Act. The bodies subject to the Act include the any board or commission of any state agency or authority. 1 M.R.S.A. § 402(2)(B). The bodies subject to the Act also include the Maine Legislature and its committees and subcommittees. Id. § 402(2)(A). Bodies created by the State that have only advisory functions are also subject to the Act, unless specifically exempted by the law or by the executive order creating the body. 1 M.R.S.A. § 402(2)(F).
Entities consisting of at least two persons and created by the Maryland Constitution, a state statute, ordinance, rule, resolution, bylaw or an executive order of the Governor are public bodies subject to the Act. § 3-101(h)(1). In addition, public bodies include all multimember boards, commissions or committees appointed by the Governor or chief executive authority of a political subdivision of the State, or appointed by an official who is subject to the policy direction of the Governor or chief executive authority, if the entity consists of two or more persons not employed by the state. § 3-101(h)(2)(i). Additionally, any multimember boards, commissions or committees appointed by an entity in the Executive Branch of the State government, with its members appointed by the Governor, or by an official who is subject to the policy direction of such entity, is also a public body, so long as its members include at least two individuals who are not members of the appointing entity or employed by the State. § 3-301(h)(2)(ii). Judicial nominating commissions, grand juries, the Appalachian States Low Level Radioactive Waste Commission, the Governor's cabinet, the Governor’s Executive Council or any committee of the Executive Council are specifically exempt from the Act. § 3-101(h)(3).
Any administrative, advisory, executive or legislative body of the State is covered by the OML. NRS 241.015(4)(a). However, the Legislature of the State of Nevada is excluded from the OML as are Legislative committees. NRS 241.016(2)(a).
State and local governments. Ohio Rev. Code § 121.22(B)(1) (public bodies subject to the law include "[a]ny board, commission, committee, council, or similar decision-making body of a state agency . . . and any . . . board, commission, committee, council, agency, authority, or similar decision-making body of any county, township, municipal corporation, school district, or other political subdivision").
However, where a local government has a home rule charter that does not provide for as much public access as the sunshine law, some lower appellate courts hold that the charter prevails over the sunshine law. Hills & Dales Inc. v. City of Wooster, 4 Ohio App. 3d 240, 448 N.E.2d 163 (Wayne 1982); City Comm'n of Piqua v. Piqua Daily Call, 64 Ohio App. 2d 222, 412 N.E.2d 1331 (Miami 1979).
The Ohio Supreme Court has not decided that issue, but has applied the sunshine law to local governments with home rule charters where there was no direct conflict between the charter and the sunshine law, such as where the charter provides for greater public access than the sunshine law. State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996); State ex rel. Inskeep v. Staten, 74 Ohio St. 3d 676, 660 N.E.2d 1207 (1996); State ex rel. Fenley v. Kyger, 72 Ohio St. 3d 164, 648 N.E.2d 493 (1995); State ex rel. Plain Dealer Publishing Co. v. Barnes, 38 Ohio St. 3d 165, 527 N.E.2d 807 (1988).
All boards, bureaus, commissions, agencies, etc. of the state except the state judiciary, state legislature and administrative staff of public bodies, when the administrative staff is not meeting with the public body, are covered. 25 O.S. § 304.1.
The state is subject to the Public Meetings Law. See supra.
The OML applies to meetings of all public bodies, which are defined as “any department, agency, commission, committee, board, council, bureau, or authority or any subdivision thereof of state or municipal government, and shall include all authorities defined in R.I. Gen. Laws § 42-35-1(2).” R.I. Gen. Laws § 42-46-2(3). However, any political party, organization, or unit thereof meeting or convening is not and should not be considered to be a public body. Id.
State governing bodies are subject to the law. However, the Act does not apply to the Tennessee General Assembly. Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. Ct. App. 2001).
Section 551.001(3)(A) defines a state “governmental body” as “a board, commission, department, committee, or agency within the executive or legislative branch of state government that is directed by one or more elected or appointed members.” This definition has been interpreted broadly. For example, in Gulf Reg’l Educ. Television Affiliates v. Univ. of Houston, 746 S.W.2d 803, 809 (Tex. App.—Houston [14th Dist.] 1988, writ denied), the appellate court found that an auxiliary enterprise of a state university was a governmental body subject to the Act because its board of directors formulated policy, spent public funds, and operated with little control or supervision by the university. The court held that before the Act is applicable to a meeting of a statewide public body, five prerequisites must be met: “(1) The body must be an entity within the executive or legislative department of the state; (2) The entity must be under the control of one or more elected or appointed members; (3) The meeting must involve formal action or deliberation between a quorum of members[;] (4) The discussion or action must involve public business or public policy[; and] (5) The entity must have supervision or control over that public business or policy.” Id. The Act does not, however, extend to the judicial branch of state government, although the meetings of the State Bar of Texas board of directors and the Board of Law Examiners must comply with the Act pursuant to Tex. Gov’t Code. Sections 81.021 and 82.003.
State governments and their advisory committees are subject to the Open Meetings Act. See Utah Code § 52-4-103(9)(a).
State entities are subject to the Act.
Any "governing body" of a state agency, political subdivision or special district is covered. Wyo. Stat. § § 16-4-403 - 16-4-406 (1977, Rev. 1982); Wyo. Att'y Gen. Op. 73-17 (1973). "'Governing body'" means a "multimember" board, commission, committee, council or other policy or rulemaking body of an agency. Wyo. Att'y Gen. Op. 73-17 (1973). The legislature and the courts are expressly exempt.


Plaintiff’s Initial Interrogatories 19-20 and Initial Request for Production 41 all seek information and documents pertaining to the other passengers aboard the subject tender on the date of the Plaintiff’s incident.
Contrary to NCL’s argument, the Plaintiff has provided a sufficient foundation for seeking the names and contact information of passengers, as requested in Interrogatory No. 19. One of the biggest issues in contention in this case is whether the crewmembers assigned to the tender aboard the gangway were assisting, instructing and warning passengers (as required) on the date that the Plaintiff fell. Passengers on the same tender as the Plaintiff would have information on that issue.
As to Interrogatory No. 20, which requested information concerning incidents on the same tender as the Plaintiff, NCL does not even address it in its response. Therefore, Plaintiff’s motion to compel a response to such interrogatory should be granted.
Request 41 seeks documents concerning incidents on the same tender as the Plaintiff. Again, NCL does not directly address this request and instead focuses only on Plaintiff’s requests for prior incidents. To the extent that NCL’s sole argument is that it should be limited to “substantially similar” incidents, the Plaintiff refers to the argument below.
Interrogatories 21-22 and Requests for Production 42-44 all pertain to prior incidents involving passengers sustaining injuries while embarking and/or disembarking a tender from NCL’s cruise ships within the three year period of time prior to the Plaintiff’s incident.
NCL’s main objection to these requests is that they are not limited to “substantially similar” incidents, relying on Jones v. Otis Elevator Co., 861 F.2d 655, 661-62 (11th Cir. 1988). As Plaintiff explained in his response, however, the “substantial similarity” rule is not applicable to this maritime case and, even if applicable, it is only a rule of admissibility – not discovery. The Plaintiff should be afforded an opportunity to establish substantial similarity of conditions by examining to NCL’s prior incidents. Weeks v. Remington Arms Co., Inc., 733 F.2d 1485 (11th Cir. 1984); see also Dollar v. Long Mfg. N.C., Inc., 561 F.2d 613 (5th Cir. 1977).
Thus, contrary to NCL’s suggestion, these requests should not be limited to just “trip and falls with a passenger disembarking the GSC II tender while embarking the Norwegian Gem” [D.E. 46]. Such a narrow request does not take into account that NCL’s policies and procedures concerning tendering operations are fleetwide and not specific to the vessel, tender or type of gangway being used.
Further, NCL’s reliance on Anderson v. Lowe’s Home Centers, Inc., 3:07-cv-895-J-33TEM, 2008 WL 2446877 (M.D. Fla. 2008), is also misplaced because the defendant in that case submitted an affidavit explaining why the request at issue was burdensome. Id. at *1. NCL has not filed any such affidavit herein.
Lastly, Plaintiff’s Initial Requests for Production 11-12 and 16-17 seek photographs, incident reports and statements concerning the subject incident – all of which NCL claims are protected under the work product doctrine. NCL, however, fails to meet its burden to establish such protection.
“Th[e] burden is not, of course, discharged by mere conclusory or ipse dixit assertions, for any such rule would foreclose meaningful inquiry into the existence of the relationship, and any spurious claims could never be exposed.”…. “[S]ubmitting a batch of documents to the Court in camera [does not] provide an adequate or suitable substitute because the Court is often without information of what the document concerns or how it came into being or other relevant information which would enable it to determine whether the documents are privileged.” Id.
This burden, to sustain a claim of privilege, is heavy because privileges are “not lightly created nor expansively construed, for they are in derogation of the search for the truth.” United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)…. They must be strictly construed and accepted “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (quoting Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)).
Bridgewater, 286 F.R.D. at 639 (emphasis added).
Herein, NCL fails to meet its heavy burden to assert protection under the work product doctrine and instead relies solely on conclusory assertions which this Court deems insufficient.
As discussed in Plaintiff’s motion, a routine investigation and the reports, statements and photographs rendered therefrom which may be used to defend a lawsuit are not sufficient to invoke the work product protection. “The law is clear that if documents are prepared for a business purpose, or for some other non-litigation purpose, they fall outside the protection of the work product doctrine. Thus, ‘if a party prepares a document in the ordinary course of business, it will not be protected even if the party is aware that the document may also be useful in the event of litigation.’” Bridgewater, 286 F.R.D. at 641 (citations omitted). Therefore, the determinative factor is whether “the primary motivating purpose behind the creation of the document” was to aid in future litigation. United States v. Davis, 636 F.2d 1028, 1040 (5th Cir. 1981) (emphasis added).
[Defendant] would have this court simply accept [its] conclusory declaration of its “primary purpose,” find that [defendant] had thus met its burden of proof, and uphold the claim of privilege….
I find that [defendant] and Carnival have not met their burden to prove that the primary motivating purpose behind Mr. Chung and Mr. Clark writing the incident reports was to aid in possible litigation. To find otherwise would render meaningless the oft-repeated requirement that parties asserting a privilege justify that privilege with more than conclusory assertions. Accordingly, I find that [defendant’s] two incident reports are not protected from disclosure by the work product doctrine.
Furthermore, assuming, arguendo, that the accident report, witness statements and photographs are afforded protection under the work product doctrine, NCL should still be compelled to produce them based on Plaintiff’s substantial need and inability to obtain the substantial equivalent through other means without undue hardship. See Fed. R. Civ. P. 26(b)(3)(A). Upon information and belief, the records merely contain a routine recording of objective facts, such as the circumstances of the accident and the remedial response thereto. Jones v. Carnival Corporation, No. 04-20407-CIV-Jordan (S.D. Fla. September 28, 2005) [D.E. 136]. Considering that discovery is now closed in this case and it has been over a year since the subject incident, the information contained in the reports, statements and photographs will likely be more accurate than any statements or photographs that Plaintiff may later obtain.
Plaintiff therefore has a substantial need for the report, statements and photographs to properly prosecute her claims against NCL. Moreover, Plaintiff will likely be unable to obtain the substantial equivalent through other means because 1) discovery in this case is closed; 2) the photographs were taken on the same day as the incident; 3) the report and statements were all taken from crewmembers who are presumably now either out at sea or in their native countries; and 4) the witnesses’ recollections may not be as clear and/or accurate as they were when the incident occurred.
Accordingly, because the work product doctrine does not apply to the accident report, statements and photographs, NCL should be compelled to produce such documents.
WHEREFORE, for the foregoing reasons, the Plaintiff respectfully requests that this Honorable Court enter an Order granting Plaintiff’s Motion to Compel Better Reponses to Plaintiff’s Initial Interrogatories [D.E. 25].
 NCL also references 5 U.S.C. § 552(b)(4). However, none of the materials at issue herein include trade secrets, commercial, financial, confidential or privileged information, and NCL fails to prove otherwise.
 The incident occurred on September 3, 2013.


The exemption of the United States from payment of interest on claim in the absence of authorized engagement to pay it does not extend to subordinate governmental agencies.
While no rule is now laid down for all governmental agencies, this Court holds that the National Home organized under statute now § 4825, Rev.Stat., is not exempt from payment of interest.
.	The facts, which involve the liability of governmental agencies for payment of interest, are stated in the opinion.
This appeal brings under review a decree allowing interest on the amount found due a contractor upon two contracts for the construction of buildings for the Mountain Branch of the National Home for Disabled Volunteer Soldiers.
of the United States Army." The erection of the buildings was undertaken by the Home in pursuance of express congressional authority, and after an appropriation for that purpose had been made from the national treasury. 31 Stat. 745, c. 184. The contracts called for the completion of the work by the contractor on or before designated dates, which were extended. At the expiration of the last extension, the contractor was in default, although the work was largely performed, and the Home, under power reserved in the contracts, proceeded with the completion of the buildings.
In a bill exhibited by the Home against the contractor, in the Circuit Court of the United States for the Eastern District of Tennessee, and in a cross-bill by the contractor, the parties presented for judicial determination various matters of difference arising out of the contracts and what was done under them. A hearing resulted in a decree awarding the contractor, upon the contracts, the sum of $21,139.12, to which interest was added from the date when the buildings were fully completed and occupied by the Home. From so much of the decree as allowed interest, the Home appealed to the circuit court of appeals, which rendered a decision of affirmance, 194 F. 940, and then the Home appealed here. The sole error assigned challenges the allowance of interest. It is not insisted, nor could it reasonably be, that this allowance was inequitable or an abuse of discretion in the particular circumstances, so the only question is whether, in law, there was an insuperable obstacle to allowing interest.
"have perpetual succession, with powers to take, hold, and convey real and personal property, establish a common seal, and to sue and be sued in courts of law and equity, and to make bylaws, rules, and regulations, not inconsistent with law, for carrying on the business and government of the home, and to affix penalties thereto"
(§ 4825); also "to procure . . . sites, . . . and to have the necessary buildings erected" (§ 4830).
It is not questioned that the Home was empowered to make the contracts upon which the recovery was had, or that it was suable thereon; but it is urged that interest is not recoverable against the United States in the absence of some statutory provision or authorized stipulation, and that, as the Home is a governmental agency, a like exemption applies to it.
It is quite true that the United States cannot be subjected to the payment of interest unless there be an authorized engagement to pay it or a statute permitting its recovery. Angarica v. Bayard, 127 U. S. 251, 127 U. S. 260; United States v. North Carolina, 136 U. S. 211, 136 U. S. 216. But this exemption has never as yet been applied to subordinate governmental agencies. On the contrary, in suits against collectors to recover moneys illegally exacted as taxes and paid under protest, the settled rule is that interest is recoverable without any statute to that effect, and this although the judgment is not to be paid by the collector, but directly from the treasury. Erskine v. Van Arsdale, 15 Wall. 75; Redfield v. Bartels, 139 U. S. 694.
and be subjected to liability to be sued. Although under the ultimate supervision of Congress, it has a board of managers which exercises a general control over its affairs, and has a corps of other officers of its own who are in immediate charge of its activities. It makes contracts and incurs contractual liabilities in its own name, expends and disburses the moneys available for its support and maintenance, and in general occupies a position which takes it without the reasons underlying the government's exemption from interest. It is significant that the statute permitting suits in the Court of Claims against the government contains a provision expressly restricting the allowance of interest (Rev.Stat. § 1091), while the statute authorizing suits against the Home contains no such restriction. And it is also significant that the latter authorization is not confined to any particular court, but extends generally to "courts of law and equity." It may be, as has been held elsewhere, that such authorization does not embrace suits for tortious acts of the officers of the Home (see Overholser v. National Home, 68 Ohio St. 236; Lyle v. National Home, 170 F. 842), but, if so, this does not prove or indicate that in suits to enforce contractual obligations the amount of the recovery is not to be determined by the standards applicable to other litigants.


1 change the name of the 3rd section "Benefits of the Fund" on "Post grants of the Fund" and the type of section 16 by "Post grants" for "Grants to statutory social security contributions". in the table of contents.
Advisory Board for the granting of the aid"
3. in paragraph 1 is inserted after the phrase "Artists" the phrase "and of other aid to artists".
4. in article 2, paragraph 2 accounts for and in paragraph 1 the phrase "on the basis of their / his artistic ability".
5. in article 3, paragraph 1, the phrase "and other social support for artists" is inserted after the word "Social".
4. the application of funds for the tasks of the Fund."
7. in article 7, paragraph 1 Nos. 1, para. 2, 5 and 6, article 8, paragraph 1, 2, 5 to 7, article 10, paragraph 1 and 2, article 11 par. 3 and 4, section 12 paragraph 2, article 15, paragraph 1, 3 to 5, § 18 para 2, § 26 para 2 and § 31 replace the term "Federal Minister for education, art and culture" in the respective grammatical form the term "Chancellor" in the correct grammatical form. In § 15 para 4, the designation does not apply "her /".
8. in article 11, paragraph 3, the phrase "of the Federal Ministry for education, arts and culture" is replaced by the phrase "the Federal Chancellor's Office".
"7 information on custody and maintenance obligations, assets and expenses."
10. in article 14, paragraph 3, the phrase "and other services of the Fund under this Federal Act" is inserted after the word "Post grants".
"5. the approval of the guidelines for the granting of aid to artists in particularly worthy of consideration emergencies in accordance with § 25 b."
12. in the name of the 3rd section, the word "Services" is replaced by the word "Post grants".
"Grants to contributions in the legal social security"
14. in article 17, paragraph 1, inserted in no. 2 after the word "Income" the phrase "or revenue", in Z 3 the quote "No. 2" the word "Sixty" "65-fache" replaced by the quote "§ 2 para 1" and no. 4 by the word.
15. in article 17, paragraph 3, the word "Qualification" is replaced by the word 'Activity'.
16. in article 17, paragraph 4, the quote "according to § 19 para 3" is inserted after the word "Elimination".
"3. revenue from independent artistic activities (such as preparation and activities which serve to carry artistic work, distribute or make available to) in the field of art, for which pursuant to § 20 para 1 entitlement to post grant was found basically up to half of the amount referred to in paragraph 1 Z 2."
"(7) that paragraph 1 is Z 2 requirement in accordance with also meets, if - beginning with the calendar year, for the first time had the grant - on average in three consecutive calendar years the minimum income (minimum income) have been achieved. After the expiry of such three-year period of calculation starts with the next following calendar year in which the grant goes to the new three-year calculation period.
(8) in the first five calendar years, where the minimum income (minimum income) referred to in paragraph 1 not have been achieved Z 2 in connection with para 5 and 7 is eliminated. the eligibility requirement of minimum income (minimum income)"
"(3) the entitlement to post grant:"
"2. otherwise only for those periods where the minimum income (minimum income) in accordance with article 17, paragraph 1 were achieved not No. 2 or the upper limit of the income (§ 17 par. 1 Z 4) has been exceeded."
"(5) was the upper limit of the income (article 17, paragraph 1 Z 4 in connection with paragraph 6) or lower limit of income or income from artistic activity (§ 17 para 1 No. 2 in conjunction with paragraph 5, 7 and 9) each in five calendar years for which the grant was granted, exceeded or not reached, the grant from the determining next following calendar years is so each only after proof of income or income from artistic activity (minimum) or the total income (upper limit) in hindsight" to grant for the calendar year in question. The calendar year in accordance with article 17, paragraph 8 are to be."
22. in article 22 be inserted in paragraph 2, after the word "Income", the phrase "as well as revenue" and in paragraph 4 the word "Post grant" the quote "according to § 19 para 3"; in paragraph 5, the quote "in accordance with paragraph 4" is omitted.
"23 (1) post subsidies, which are over eligibility, or for periods after discontinuation of the claim from the Fund to the social insurance institution were made, by the party concerned the Fund within one month after the prompt re zuzahlen. The same applies for provisional post grants that were made on the basis of the provisional contribution basis pursuant to section 25a of the GSVG. Is the entitlement to post grant expired, because the upper limit of the income (article 17, paragraph 1 Z 4 in connection with paragraph 6) exceeded or the lower limit of income or revenue (article 17, paragraph 1 Z 2 in conjunction with paragraph 5, 7 and 9) falling below, so is the repayment obligation only in the amount, which was exceeded the upper limit or below the lower limit. The repayment obligation has to determine the funds each for a calendar year."
"(4) the Fund must waive / the party concerned wholly or partly on request recovery, if recovery of the amount receivable for the affected / interested parties would be unreasonable according to the situation of the case, in particular, taking into account their / his economic circumstances. Is the repayment obligation due to not reaching the lower limit of income or income from artistic activity (§ 17 para 1 No. 2 in conjunction with paragraph 5, 7 and 9), is also to consider whether in the calendar year concerned the artist / the artist by him not to be reasons not able to exert the artistic activity over a longer period. "The existence of the conditions for a waiver depends on the artist / to prove by the artist."
"(7) the entitlement is limited to five years from its finding by the Fund. The Statute of limitations is suspended. as long as proceedings before the Federal Administrative Court or the courts of public law of the existence of the repayment obligation is pending"
4. for medical necessary stays in Spa, convalescent - or rest homes.
5. procedures for the granting of the aid a. application (type, content, facilities of the documents, seizures), b. payout mode, c. reporting (final cut), settlement, final review, d. adjustment and recovery of the aid.
section 25c. (1) the aid is granted by the Fund in accordance with the guidelines and existing resources. No legal claim on the granting of aid. The Fund may at any time check the dedication intended of the aid and obtain information about the use of the aid.
(2) aid granted can be has neither by assignment, statement or pledge still in a different way.
(3) in a calendar year, aid may be granted total up to EUR 500 000 if the grant of the contribution funding is not endangered.
(4) the Managing Director of the Fund has the curatorship on request, in any case, with the presentation of the annual financial statements for decision, to report on the granting of aid.
§ 25 d. (1) to advise on the granting of aid an Advisory Board is from the Fund set up, consisting of four members. Is a member of the Federal Chancellor, to appoint a member of the Managing Director of the Fund and a member of the Culture Council of Austria. The fourth member is to send each of the representative artists representations in accordance with section 11 paragraph 4 in alphabetical order to the individual meetings of the Advisory Board. The Managing Director of the Fund has to urge the upcoming series artist representation in time before the meeting to the posting of the Member. The prompted artist representation of the right does not exercise the Advisory Council at the meeting without this member is part composed.
(2) the Presidency of the Council is the Member appointed by the Managing Director of the Fund. For the members of the Advisory Board appointed by the Federal Chancellor, the Fund and the Austrian Cultural Council, article 7, par. 3 and 4 shall apply. § 11 paragraph 7 and 8 with the proviso that he/the right to vote is Chairman of the Advisory Board and vote their vote is crucial is for the meetings of the Advisory Board.
"(3) the Advisory Board shall in the course of its activities to determine whether and to what extent are the conditions for the granting of the aid."
"(8) section 17 in the version of Federal Law Gazette I 15/2015 is no. 1 January 2014 into force and applies for the calendar years from 2014th to derogation applies section 17 para 8 in this version for periods before 1 January 2014, where were the minimum income pursuant to § 17 para 1 achieved no. 2 as amended to 31 December 2013 and not yet repaid the funds for that purpose received grants , where to apply Z 2 as amended by 31 December 2013 for these cases is section 23 paragraph 4. These periods and the periods for which the Fund has waived repayment of the grant because of failure to meet of the minimum income, shall be at the five calendar years in accordance with article 17, paragraph 8."
1. in article 1, para. 3, § 2 para 1 to 3, § 3 para 1, § 5 Z 1 are in the respective grammatical form the designation "Federal Minister for education, art and culture" by the designation "Federal Chancellor" in the correct grammatical form replaced.
"An evaluation of the impact of the amendment and the spending structure of the artist Social Fund has to be carried out up to 31 December 2017."


text:
Michael V. Smith is a writer, comedian, filmmaker, performance artist and occasional clown teaching creative writing in the interdisciplinary program of the Faculty of Creative and Critical Studies at UBC's Okanagan campus in BC's Interior. He is the author of the novels Progress (Cormorant Books 2011) and Cumberland (Cormorant Books, 2002) which was nominated for the Amazon/Books in Canada First Novel Award.
In recent years, Smith won Vancouver's Community Hero of the Year Award and the inaugural Dayne Ogilvie Award for Emerging Gay Writers. He's also won a Western Magazine Award for Fiction, scooped two short film prize categories at Toronto's Inside Out festival, and was nominated for the Journey Prize.
His videos have played around the world, in cities such as Milan, Dublin, Turin, London, New York, Toronto, Paris, Geneva, Berlin, Glasgow, Lisbon, Beirut, Amsterdam, Copenhagen, Buenos Aires, SF, LA and Bombay. Smith is an MFA grad from UBC’s Creative Writing program.
His first book of poetry is What You Can’t Have (Signature Editions, 2006), short-listed for the ReLit Prize. In 2008, he published a hybrid book of concrete poems/photographs, Body of Text (BookThug), created with David Ellingsen.
Kathryn Mockler: What keeps you going as a writer?
Michael V. Smith: I’ve always loved a puzzle. My novels have felt like long complicated puzzles that I tried to figure out. Really, every book is a mystery novel, right? You read to the end to find out the whodunnit, in whatever shape that takes. How is this book going to end? Even, how is the poem going to end? How does it work? So writing is the best way to enjoy making puzzles (long ones like novels, short ones like a poem) and still get paid.
Okay, I use teaching to get paid.
What keeps me going is a fine alchemy of things. There are many pleasures in creating: simple ego-stroking, the thrill of feeling like I’m discovering something, a satisfaction in accomplishment, being generous with myself, the feeling that I’m creating a conversation with someone about a collection of ideas (or characters) I’m very fond of, and the pleasure that comes from being engaged with the world. I’ve never thought of writing as a solitary act. I don’t know where that idea comes from. Writing is a very long one-sided conversation, but I’m always aware that eventually an audience will hear it, and listen, and join in.
Kathryn Mockler: What is the revision process like for you?
Michael V. Smith: With novels, after I have a first draft, I take out all the parts of the flab that aren’t plot. Just cut it all away. If there are bits of information I particularly like, or can’t do without, then I find somewhere to slip that back in. Usually, that first draft, cleaned up, is a solid skeleton.
Then I do drafts that look at fixing specific things: I go through the whole manuscript, for example, and look at tying the events more closely together, so that one event is the cause of what comes next, or I do an edit to ‘psychologize’ the characters, meaning I add in some of the unwritten emotional life of the character, or flush out a bit of background, to fill out our sense of character. It’s a great way to edit for me, because it gives me focus on a particular skill.
I always do other work at the same time, of course. One type of change triggers five others. But if I’m just approaching the novel as a whole, it’s overwhelming, and hard to see it clearly, so I love going in there with a tool in hand and digging around, which makes the whole process more manageable.
Kathryn Mockler: How did you deal with rejection when you first started out?
Michael V. Smith: Rejection is all part of the business, so if you aren’t rejected, you aren’t in the business. I take rejections as a good sign—I’m being a writer.
Kathryn Mockler: What are you working on now?
Michael V. Smith: I'm working on two projects: a series of tribute videos to friends and family who are ill, and a collection of essays titled Men.
Since her fiancé’s death at eighteen, Helen Massey has spent her life avoiding it. Change comes when her town is only months away from being thirty feet under water. A government agency, The Power Authority, is relocating the entirety of her hometown to make way for a power dam project. What can’t be moved will be torn down. Even the cemetery is to be dug up and reinterred nearby.
When Robert discovers his parents kept the reasons for his departure a secret—too little has changed—he confesses, hoping his sister might bury the past. So begins their transformations. The siblings must negotiate their shared history, and their differences, if they are to find themselves a future.
In his essay, "A Memoir of Progress," Matthew Rader offers a brief memoir about his experiences with Michael V. Smith's latest novel Progress. This essay is published by AngelHousePress.
Read an excerpt of Cumberland.
For more information about Michael V. Smith go to his website.

matches: V. V. V. V. V. V. V.


The 2010 amendments to the Delaware LLC Act have been signed into law by the Governor. The amendments have an effective date of August 2, 2010. HB 372. This legislation was the product of a years’ work by the Delaware Bar Association’s Alternative Entity Sub Committee of the Corporation Council. I am a member of the Committee, though the comments expressed herein are mine and not necessarily those of the Committee. The Committee’s work is reviewed by the Corporation Council and the Bar Association’s Executive Committee, it is then recommended to the General Assembly.
I previously made a post on a Chancery Court decision on the application of the statute of frauds to an oral Delaware LLC Agreement. Section 1 of the Bill confirms that notwithstanding the decision of the Court of Chancery, the statute of frauds does not apply to an oral LLC Agreement.
Sections 2, 26 & 27 of the Bill were included at the request of the Secretary of State and permit service of process upon the Secretary of State by means of “electronic transmission” in accordance with rules to be adopted by the Secretary.
Section 3 is a confirmation that unless otherwise provided in a LLC Agreement, the LLC has the power and authority to grant, hold or exercise a power of attorney, including an irrevocable power of attorney. Section 5 provides that powers of attorney granted regarding to the organization, internal affairs or termination of a LLC granted by a member, a person seeking to become a member or an assignee of a member shall be irrevocable if it states that it it is irrevocable and is coupled with an interest sufficient in law to support an irrevocable power. The section states that a power is coupled with an interest if it is granted regarding to the organization, internal affairs or termination of a LLC granted by a member, a person seeking to become a member or an assignee of a member of the LLC and the power is granted to the company, a manager, member or certain other designated persons. Much of the discussion regarding powers of attorney resulted from unfortunate legislation adopted in New York which brought into question may powers routinely granted in commercial transactions.
In tender offers, the offeror will generally structure the tender using a Delaware LLC as the offeror and following the close of the transaction will enter into a merger with the target. Delaware does not have a short form merger provision which would permit a parent LLC to merge with a 90% owned subsidiary corporation. (In a short form merger the parent owning not less than 90% of the subsidiary may cause a merger between the parent and subsidiary without the approval of the remaining 10% stockholders or members.) On the corporate side a new Section 267 of the DGCL provides the mechanism for short form mergers. Sections 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 20 and 30 facilitate the short form merger.
Sections 12, 18 & 19 permit service upon the Secretary of State under 18-209(c)(8), 213(b)(7) and 216(e)(7) by electronic transmission in accordance with rules adopted by the Secretary.
Section 21 amends 18-305(f) which grants the Court of Chancery the power to enforce a demand for information under Section 19-305. As currently drafted the Section only permitted the Court to order the disclosure of a current list of members and their last know address. The Amendment grants authority to the Court to order disclosure of all of the information set out in subsection (a). The amendment allows the parties to shorten or extend the 5 day response period in the Company Agreement, but not beyond 30 days.
Section 22 is a technical amendment to 18-305(g) to clarify that the right to obtain information may be restricted in an amendment to a Company agreement and that the restriction are not intended to limit any other restrictions provided under the Chapter.
Sections 23 and 24 confirm the circumstances under which an assignee may be admitted as a member. Section 18-702 is amended by providing that in addition to an assignee being admitted “except a provided in a limited liability company agreement” that an assignee may be admitted upon the affirmative vote or written consent of all of the members, deleting the phrase “other than the member assigning the limited liability company interest; or (2) Compliance with any procedure provided for in the limited liability company agreement”. Section 18-704(a) is also amended to make it clear that the assignee is admitted as a member “as provided in the limited liability company agreement” and “Unless otherwise provided in the limited liability company agreement, upon the affirmative vote or written consent of all of the members of the limited liability company” and deleting, inter alia, the phrase “other than the member assigning…”.
Section 25 requires that in order for a foreign LLC to register in Delaware under 18-902 it must supply a good standing certificate and if the certificate is in a foreign language, a translation.
Section 29 adds to 18-1101 a new subsection (i) that reads “A limited liability company agreement that provides for the application of Delaware Law shall be governed by and construed under the laws of the State of Delaware in accordance with its terms.” This may seem obvious that if the parties form a LLC under the Delaware Act that it should be construed under the laws of Delaware and in most cases it is, in particular regarding its organization, dissolution and internal affairs. It is not entirely clear what constitutes “internal affairs” however the term is often found in decisions and law review articles dealing with LLC’s as well as corporations. One area where the issue arises is when the agreement address issues that are not within those categories such as employment, redemption and other similar business deal issues. Delaware Courts have upheld that a LLC agreement may be governed by the laws of other states and in one case permitted it to be governed by the DGCL.
The issues addressed in these amandments should not create substantial debate. The only issue which may cause some discussion is Section1 and its relationship to the Olson case.
The Institute for Legal Reform, an arm of the U.S Chamber of Commerce, has again ranked the legal environment in Delaware number 1 in the nation. The survey has been conducted by the Institute since 2002 and in each year Delaware has been ranked number 1. In the ten categories Delaware ranked number 1 in 8 of the categories.
The report is based upon interview with 1,482 general counsel and senior management of companies with revenue of at least $100 million. The report states that two-thirds, or 67%, of the 1,482 corporate lawyers contacted for the survey say a state’s lawsuit environment is likely to impact important business decisions at their company, such as where to locate or expand their business—up 10% from just three years ago.
Other states ranking near the top were #2 North Dakota, #3 Nebraska, #4 Indiana, and #5 Iowa. States often selected by large companies for business formations Colorado was #8, New York was #23, Nevada was #28, New Jersey was #32, Florida was #42, California was #46 and bringing up the bottom was West Virginia at #50.
Companies do not intend to be sued when they are considering a state in which to form, however as pointed out in the Illinois article, companies consider the legal environment in a state as an important factor in case they are sued. It is interesting to note that when a company is formed by a large law firm, the firms will generally select Delaware while small firms select their own jurisdiction.
If a company is to be formed in a state other than the local jurisdiction, it makes no sense to form in a state which ranks 23 or below for fairness in its legal climate.
I have an active Delaware business practice as well as a practice in Delaware’s State and Federal courts. If you or your client have a business matter or a matter which you wish to litigate in Delaware or have a matter pending in Delaware, we would appreciate the opportunity to consult with you regarding our representation. Please remember that we do not accept representation without a written engagement letter.
Section 18-101(7) of the Delaware LLC Act provides that the LLC agreement means “any agreement (whether referred to as a limited liability company agreement, operating agreement or otherwise) written, oral or implied, of the member or members as to the affairs of a limited liability company and the conduct of its business.” If an agreement may be “oral or implied” one could reasonably assume that such an agreement has been taken out of the Statute of Frauds.
Delaware’s Statute of Frauds, 6 Del. C. §2714(a) bars the enforcement of an agreement “that is not to be performed within the space of one year from the making thereof,” unless it is (1) written and (2) signed by the party against whom the agreement is to be enforced. Only if the parties cannot possibly perform the agreement within one year does the statute of frauds apply and require a writing, signed by the charged party.
The Delaware Supreme decided the case of Olson v. Viking Global on December 15, 2009. Olson v Viking Global The case in part involved the enforcement of an unsigned LLC Company Agreement which was drafted for a hedge fund. Olson sought to enforce an earn out provision of the unsigned agreement on the basis that it represented an “oral” Company Agreement as permitted under the Act. The Company and the remaining members defended on the basis that an agreement had not been formed and even if there was an agreement a provided in the unsigned agreement, the provision in question was unenforceable under the Delaware Statute of Frauds as the earn out could not possibly be performed within one year of the date the agreement was allegedly made.
The Court’s holding in this case may come as a suprise to many practitioners who reasonably interpreted 18-101(7) as an implied repeal of the Statute of Frauds. While most agreements do not contain complicated earn out provision that last over a series of years, some agreements do contain provisions that implicate the Statute of Frauds. The use of oral or implied Company Agreements has always been a difficult practice issue. While permitted by the Act, the use of oral agreements has always been frowned upon by practitioners. This decision gives one more reason why the practioner will press his or her clients to reduce their agreements to writing and to follow through with clients to assure that agreements sent out for signature are actually signed.
I have an active Delaware business practice as well as a practice in Delaware’s State and Federal courts. If you or your client have a business matter or a matter which you wish to litigate in Delaware or has a matter pending in Delaware, we would appreciate the opportunity to consult with you regarding our representation. Please remember that we do not accept representation without a written engagement letter.
The Delaware General Corporation Law and the Delaware Limited Liability Company Act have become the de-facto national corporation and LLC laws. As such the State of Delaware is and has been the favored jurisdiction to form business entities. As the favored jurisdiction it also the jurisdiction where many companies choose to litigate as a company’s jurisdiction of formation or incorporation is one of the jurisdictions where personal service may be had against a company without having to rely on a “long arm” statute.
The Judges of the United States District Court for the District of Delaware, the Delaware Superior Court and the Delaware Court of Chancery have an enviable national reputation for fairness and thoughtful jurisprudence which has caused an arm of the US Chamber of Commerce to rank Delaware number 1 in the nation as the best jurisdiction to litigate business disputes. Sometimes, however, one of the parties to such litigation seeks to transfer the litigation to another jurisdiction, often referred to as a montion Forum Non Conveniens. They seek transfer for a variety of reasons, the convenience of the parties, a witness may not be available in Delaware, a similar case is pending in the other jurisdiction or the interests of justice. Recently the USDC handed down a decision in the case of Ethicon Endo-Surgery, Inc., v. Hologic, Inc., and Suros Surgical Systems, Inc., CA 09-580-JJF. Ethicon v Hologic Both corporations are incorporated in Delaware.
In October, 2007, Hologic had commenced a patent infringement action against Ethicon in the USDC ED Ohio. That matter was scheduled for trial on November 16, 2009. On April 30, 2009, Ethicon commenced the Delaware Action which is scheduled for trial in September 2010. The Delaware Action involved additional patents and an affiliated party. Hologic filed a motion to transfer the action to Ohio where it contends that related patents are being litigated, that the parties to the actions are the same and that the “public interest factors” weigh in favor of transfer.
The Court began its analysis under 28 U.S.C. § 1404(a) “for the convenience of the parties and witnesses, in the interest of justice, a district court may transfer a civil action to any other district of division where it might have been brought.” The leading case in the 3rd Circuit is Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995) where in the court set out 6 tests to consider the private interests of the litigants: “(1) the plaintiff’s choice of forum; (2) the defendant’s preferred forum; (3) where the claim arose; (4) the convenience of the parties; (5) the convenience of the witnesses, but only to the extent that the witnesses may be unavailable for trial in one of the fora; and (6) the location of books and records, again, only to the extent that they may not be available in one of the fora.” Id. at 879. In addition the Jumara court laid out 6 additional test when considering the “public” interests of the litigants; “(1) the enforcability of the judgment; (2) practical considerations that could make the trial easier, quicker or less expensive; (3) court congestion; (4) local interest in the controversy; (5) public policies of the fora; and (6) the trial judge’s familiarity with the applicable state law.” Id. at 879-80.
“Although the Court recognizes that the deference given to Ethicon’s choice of forum is somewhat lessened by virtue of the fact that Ethicon has not filed in its home turf, the public and private interest factors do not weigh strongly enough in favor of transfer”.
This is a well reasoned opinion by a well respected jurist. Transfer decisions never are black and white, they often turn on the facts and circumstances of the case and often how interested the judge himself or herself is in the subject matter of the case.
Must a Delaware LLC have a manager?
Recently I have noticed a number of searches reaching this site asking whether a Delaware LLC must have a manager. In previous posts I have written about the duties of the manager of a Delaware LLC and that the LLC must have a company agreement, however I have not explored the question of whether it must have a manager.
The short and direct answer is NO.
Section 18-101(10) defines the manager as : (10) “Manager” means a person who is named as a manager of a limited liability company in, or designated as a manager of a limited liability company pursuant to, a limited liability company agreement or similar instrument under which the limited liability company is formed. The definition is somewhat of a tautology, it does not explain either the necessity or function of the manager.
§ 18-402. Management of limited liability company.
Unless otherwise provided in a limited liability company agreement, the management of a limited liability company shall be vested in its members in proportion to the then current percentage or other interest of members in the profits of the limited liability company owned by all of the members, the decision of members owning more than 50 percent of the said percentage or other interest in the profits controlling; provided however, that if a limited liability company agreement provides for the management, in whole or in part, of a limited liability company by a manager, the management of the limited liability company, to the extent so provided, shall be vested in the manager who shall be chosen in the manner provided in the limited liability company agreement. The manager shall also hold the offices and have the responsibilities accorded to the manager by or in the manner provided in a limited liability company agreement. Subject to § 18-602 of this title, a manager shall cease to be a manager as provided in a limited liability company agreement. A limited liability company may have more than 1 manager. Unless otherwise provided in a limited liability company agreement, each member and manager has the authority to bind the limited liability company.
A company managed it members is referred to as a member managed company. In a member managed company it is often the case that the company agreement will provide that less than all of the members will have the day to day authority to manage and bind the company. Some agreements will provide for a board of directors or board of managers who will set policy. Some agreements will designate one of the members to serve as the “managing member”. The term managing member is not found in the Act. It is often the case that the managing member is not designated as a manager as such person does not, under the agreement, have the full power and authority of a manager under 18-402 and 404.
If the agrement provides for the managment of the company by one or more managers, the agreement may give the manager or managers absolute authority to manage the company without any participation of the members, similar to a limited partnership. In other situations the authority of the manager may limitd such that he may not take specified actions without the prior consent of a stated percentage of the interests approving such actions. These specified actions are often referred to a “major decisions.” If the agreement call for more than one manager, it must also provide for rules to govern their actions and to provide a remedy if the managers deadlock.
A manager (as well as a member) need not be a natural person, but may be another LLC, corporation or other business entity. A single member LLC may also have a manager. The manager of any LLC, single member or multi-member need not be a member. Under Section 18-403, a manager may make a capital contribution to the company and share in the profits and distributions as a member. A person who serves both as a manager and member is subject to the rights and restrictions of both.
I continue to emphasize that proper drafting is essential. The company agreement is a contract governed by Delaware law and it is necessary for a Delaware attorney to review the agreement for compliance with Delaware law before execution. I have an active Delaware business practice as well as a practice in Delaware’s State and Federal courts. If you or your client have a business matter or a matter which you wish to litigate in Delaware or has a matter pending in Delaware, we would appreciate the opportunity to consult with you regarding our representation. Please remember that we do not accept representation without a written engagement letter.
Fiduciary duties of a director of a Delaware corporation, the current standard.
Generally I write about limited liability companies, however some corporate decision will directly impact upon LLC law. The case I discuss today is one of those decisions.
In 2007 the Delaware Supreme court decided the case of North American Catholic Educational Programming Foundation, Inc. v. Gheewalla, et al., (Del. Supr. 2007) 930 A2d 92. Prior to the release of this decision the Chancery cases and commentators had hinted at the concept that a director had a distinct and cognizable fiduciary duty to the corporation’s creditors while operating in the “zone of insolvency” and when “insolvent”. Ghewalla holds that creditors of an Delaware corporation have no direct right to sue the directors for a breach of fiduciary duties while operating in the “zone of insolvency”. Additionally the creditors of an “insolvent” Delaware corporation do not have a direct right to sue the Directors for breach of fiduciary duties to the creditor, though in insolvency the creditors do have the right to sue derivatively. Many practitioers initially thought that this decision did not change the landscape as the creditors could accomplish derivately what they could not accomplish directly. These derivative claims, in my view, are based upon the same fiduciary duties which the directors have irrespectively of insolvency and the Court did not create or recognize a new or enhanced set of duties owed to creditors in their capacity as creditors. New or enhanced duties would create an impossible delemma for directors of a troubled corporation.
The director defendants served as directors of Clearwire Holdings, Inc., at the behest of their employer Goldman Sachs & Co. The complaint alleges that the defendants, though less than a majority of the directors, were able to dominate the company as Goldman was its only source of funding. The plaintiff is a creditor of Clearwire and asserted a direct (not derivative) claim for breach of fiduciary duties against the defendants while Clearwire was either insolvent or operated in the zone of insolvency.
In this opinion, we hold that the creditors of a Delaware corporation that is either insolvent or in the zone of insolvency have no right, as a matter of law, to assert direct claims for breach of fiduciary duty against the corporation’s directors.
Note that the Court used the word “direct” and not “derivative”. As this case involved a direct action, the court could have stopped there, however the Court then went on to examine whether a creditor had any derivative rights. The Court concluded, based upon earlier Chancery decisions, that creditors have the right to bring derivative claims when the company is insolvent.
It is my conclusion that the fiduciary duties which the directors of a Delaware corporation owe to to the corporation and its stockholder owners do not change in insolvency, however the creditors have the right in insolvency to step into the rights of the shareholder owners and sue derivatively on behalf of the corporation. To hold otherwise would place the directors in a dilemma when the corporation is in the zone of insolvency, always having to determine whether the corporation was insolvent and thereby triggering a different set of fiduciary duties. Such a holding would be contrary to the “brightly lined chanel markers” referred to by Justice Holland.
In a thoughtful article published in the August 2009 issue of The Business Lawyer, Volume 64, Number 4 at pae 1087, Sabin Willett wrote “Gheewalla and the Director’s Dilema. In this article he thoroughly reviews the case law and commentators opinions on Ghewalla. I recomend this article to you.
Whether your company is a Delaware corporation or a LLC where fiduciary duties have not either been eliminated or limited, careful drafting is required. I have an active Delaware business practice as well as a practice in Delaware’s State and Federal courts. If you or your client have a business matter or a matter which you wish to litigate in Delaware or has a matter pending in Delaware, we would appreciate the opportunity to consult with you regarding our representation. Please remember that we do not accept representation without a written engagement letter.
This post will address arbitration under an agreement that is subject to Delaware law. The legal concepts are uniquely applicable to a Limited Liability Company Agreement, however the concepts are also applicable to all “Delaware Agreements” generally.
Arbitration, as a mechanism for dispute resolution, has become increasingly important. There are several business risk of arbitration. Paramount is that an unskilled arbitrator will be selected or appointed depending upon the mechanism provided in the agreement and that arbitrator will “split the baby”. Agreements to arbitrate disputes must be carefully written; they must clearly define what disputes are to be subject to arbitration and which, if any, are not; the agreement needs to address whether or not the determination of whether a dispute is subject to arbitration or not is itself subject to arbitration; how the arbitrator is to be selected or whether the parties will defer to a third party such as the American Arbitration Association, the National Arbitration Forum or the International Council for Commercial Arbitration to select the arbitrator; what rules will govern the arbitration itself including whether the local rules of evidence will apply; the authority of the arbitrator, will the judgment be limited to actual damages, will consequential damages be permitted and will exemplary or punitive damages be permitted; who will pay the costs assesed by the arbitration sponsoring organization as well as the arbitrator’s fee and associated costs of the arbitration itself; and finally will attorney fees and costs of the prevailing party be included in the award.
I personally do not like the traditional 3 arbitrator panel model. My experience with that model has been that the award tends to come in somewhere between the two competing demands rather than one party clearly prevailing. I prefer the model adopted by professional baseball where there is a single arbitrator selected by the parties where the arbitrator has only the power to pick one of the positions submitted by the parties plus award attorneys fees and costs to the prevailing party plus award the costs of the arbitration. The arbitrator may make corrections to computational errors of a party, however, aside from making such corrections the arbitrator is limited to picking a winning position and cannot modify the position of any party and therefore cannot split the baby.
If an arbitration agreement is to provide for the award of counsel fees to the prevailing party the notion of “prevailing” must be defined carefully and the concept of costs must be included with “reasonable counsel fees” as counsel fees does not by definition include the attorney’s costs. Costs of arbitration (arbitrator’s fee, AAA fees, room charges, etc.,) are not “costs” in the general sense and must be addressed specifically.
The decision to arbitrate disputes is a decision to forgo the right to a hearing before a court applying traditional court rules and rules of evidence and forego the right to judicial review of the substantive merits of the arbitrator’s decision. In Delaware the Court of Chancery may review an arbitration order under 5 limited circumstances set out in the statute (10 Del C. § 5714). The Court does not sit as an appellate court reviewing the arbitrator’s legal findings and procedural actions.
Chancellor Chandler on August 18, 2009 decided the case of World-Win Marketing, Inc. v Granley Management Co. (CA 3905-CC) Decision: world-win v ganley In this case the arbitrator in an AAA arbitration decided that both parties were equally at fault and awarded plaintiff one half of the amount it demanded. The arbitration agreement stated that “the prevailing party shall be entitled to recover all reasonable costs incurred in connection therewith, including attorneys’ fees.” The arbitrator decided that the plaintiff was not entitled to attorneys’ fees as part of the award and the plaintiff sought an order vacating the portion of the award denying attornys’ fees contending that the arbitrator exceeded his authority in not including attorneys’ fees in the award.
The plaintiff contended that “prevailing party” under Delaware practice means the party which receives the award. The Court stated that under Delaware law the “prvailing party” is determined by reference to substantive issues, not damages. In the case under review the arbitrator found that both parties “where equally negligent in the performance of the Agreement, and in the breach of numerour provisions of said Agreement” and therfore denied an award of attorneys’ fees.
The Chancellor addressed several issues of general interest to my readers.
This case is illustrative of the pitfalls of arbitration and the need to address the meaning of even well understood contractual terms in drafting the agreement to arbitrate disputes within the LLC agrement. As with any agreement to be interpreted under Delaware law, the input and review by a Delaware attorney is required. I have an active Delaware business practice as well as a practice in Delaware’s State and Federal courts. If you or your client have a business matter or a matter which you wish to litigate in Delaware or has a matter pending in Delaware, we would appreciate the opportunity to consult with you regarding our representation. Please remember that we do not accept representation without a written engagement letter.
TravelCenters of America, LLC is a publicly traded Delaware LLC, Alan R. Kahn is a “shareholder” in the LLC. Kahn filed a derivative action against the LLC and its “directors” alleging that the directors breached their fiduciary duties to the LLC in connection with a transaction in which the dominant director had a direct and adverse financial interest to that of the LLC. The directors moved for summary judgment based upon exculpatory language in the LLC agreement and based upon a lack of a prior demand upon the directors as required under 18-1003. The decision by Chancellor Chandler of the Delaware Court of Chancery is on the motion for summary judgment, therefore at this stage of the proceedings the well plead factual allegations of the plaintiff are taken as true, the Court will make all reasonable inferences in favor of the plaintiff and only dismiss the complaint if the Court can determine with “reasonable certainty” that there is no set of facts that can be reasonably inferred from the well pleaded allegations in the complaint upon which the plaintiff could prevail. The Court will not on summary judgment choose between competing reasonable interpretations of ambiguous contract provisions. As I have pointed out in previous posts, the LLC agreement is a contract.
The LLC agreement of TravelCenters is an example of the dangers of a poorly drafted agreement and the need for competent Delaware Counsel.
The LLC agreement provided that the “authority, powers, functions and duties (including fiduciary duties)’ of the board of directors will be identical to those of a board of directors of a business corporation organized under the Delaware General Corporation Law, unless otherwise specifically provided in the LLC agreement. The directors asserted that the LLC agreement (§ 7.5(a)) contained language which created a presumption in its favor when dealing with fiduciary duties and which created an enhanced presumption which the plaintiff must overcome. The Court found that there were two reasonable and conflicting interpretations of the paragraph in question and declined to choose which one was a more reasonable interpretation.
The Court noted that the LLC agreement explicitly imposed on the LLC corporate fiduciary duties which are the dual duties of due care and loyalty. The complaint implicates the duty of loyalty which requires that directors act in the best interest of the company and prohibits them from using their positions to further their own self-interest. The court found that the plaintiff properly plead a violation of the duty of loyalty and that the exception found in § 7.5(a) did not resolve the question as it is ambiguous.
Likewise the exculpatory provisions in the LLC agreement were found to be ambiguous and again as the exculpatory language relies on the exception found to be ambiguous, the Court declined to apply the exculpatory language.
The Court next focused on the question of demand futility. “In order to maintain a derivative suit on behalf of a LLC, a member must either (1) make a demand on the managers of the company to bring suit or (2) show that ‘an effort to cause those managers or members to bring the action is not likely to succeed'”. The complaint must allege with particularity the reasons why such demand would be futile. In evaluating futility the Court looked at corporate law. Under Aronson v. Lewis, 473 A.2d 805, 814 (Del. 1984) there are two tests which must be met. The complaint must allege particularised fact that establish a reasonable doubt that “(1) the directors are disinterested and independent [or] (2) that challenged transaction was otherwise the product of a valid exercise of business judgment.” The test is stated in the disjunctive.
The Court found that the plaintiff made sufficient well plead factual allegations of bad faith with regard to the dominant director to survive a motion for summary judgment.
Poorly drafted LLC agreements are an invitation to litigation. A LLC agreement is a Delaware contract which requires the skill and know how of an experienced Delaware attorney. I have an active Delaware business practice as well as a practice in Delaware’s State and Federal courts. If you or your client have a business matter or a matter which you wish to litigate in Delaware or has a matter pending in Delaware, we would appreciate the opportunity to consult with you regarding our representation. Please remember that we do not accept representation without a written engagement letter.
The Delaware Act, §18-305, titled “Access to and confidentiality of information; records,” sets out rules for permitting a member or manager access to company records upon a “reasonable demand for any purpose reasonably related to the member’s interest as a member of the limited liability company”. The Court commences its analysis by noting that “the basic approach of the [LLC] Act is to provide members with broad discretion in drafting the agreement and to furnish default provisions when the members’ agreement is silent”. The Court determined that the language quoted form the LLC agreement was intended by the parties to substitute for the default provisions of §18-305.
As the Court determined that the plaintiff had the right to inspect and copy the general ledger under agreement “I need not address her additional arguments for inspection rights under §18-305 or Defendants’ opposition to those arguments”. Certainly the inspection rights under §18-305 was determined by the Court to be a “default” provision which the parties had replaces with the language in the agreement.
After affirming that Delaware follows the “American Rule” “under which a prevailing party generally is expected to pay its own attorneys’ fees and costs” the Vice Chancellor stated that there are exceptions to that rule and that the Plaintiff was relying on an exception that the court could award fees to a “prevailing claimant if the loosing party acted in bad faith in opposing relief being sought in the lawsuit.” That is “if defendant’s conduct forces the plaintiff to file suit to ‘secure a clearly defined and established right'”.
In this case the defendant initially opposed the plaintiff’s claim that she was a member, even though she was listed as a member on the K-1. For the purpose of the motion the defendant stipulated that she was a member. The Court found that there was a reasonable dispute which militated against the award. Given that the defendant listed the plaintiff as a member on the K-1 it is difficult on the record presented in the decision to understand the Court’s holding.


advancing promising technologies and encouraging adoption of safe operational practices.
the Safety Measurement System utilized by the CSA program (referred to in this part as the ‘SMS’).
the recommendations and findings of the Comptroller General of the United States and the Inspector General of the Department [of Transportation], and independent review team reports, issued before the date of enactment of this Act [Dec. 4, 2015].
publish the report on a publicly accessible Internet Web site of the Department.
provides an estimate of the cost, including with respect to changes in staffing, enforcement, and data collection, necessary to address such deficiencies or opportunities.
shall be considered in any rulemaking by the Department that relates to the CSA program, including the SMS or data analysis under the SMS.
submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report on the responsiveness of the corrective action plan to the recommendations described in paragraph (1).
satisfies other standards determined appropriate by the Administrator.
establishing a safety BASIC in the SMS.
The Administrator, after providing notice and an opportunity for comment, shall develop a process for identifying and reviewing advanced safety equipment, enhanced driver fitness measures, fleet safety management tools, technologies, and programs, and other standards for use by motor carriers to receive recognition, including credit or an improved SMS percentile, for purposes of subsection (a).
seek input and participation from industry stakeholders, including commercial motor vehicle drivers, technology manufacturers, vehicle manufacturers, motor carriers, law enforcement, safety advocates, and the Motor Carrier Safety Advisory Committee.
The Administrator, after providing notice and an opportunity for comment, shall develop technical or other performance standards with respect to advanced safety equipment, enhanced driver fitness measures, fleet safety management tools, technologies, and programs, and other standards for purposes of subsection (a).
The Administrator may authorize qualified entities to monitor motor carriers that receive recognition, including credit or an improved SMS percentile, under this section through a no-cost contract structure.
any relevant statistics relating to the use of advanced safety equipment, enhanced driver fitness measures, fleet safety management tools, technologies, and programs, and other standards.
safety performance of such carriers.
the Secretary [of Transportation] has initiated modification of the CSA program in accordance with section 5222.
Information regarding alerts and the relative percentile for each BASIC developed under the CSA program may not be used for safety fitness determinations until the Inspector General of the Department makes the certification under subsection (a).
Notwithstanding any other provision of this section, inspection and violation information submitted to the Federal Motor Carrier Safety Administration by commercial motor vehicle inspectors and qualified law enforcement officials, out-of-service rates, and absolute measures shall remain available to the public.
a data analysis of motorcoach operators may be provided online with a notation indicating that the ratings or alerts listed are not intended to imply any Federal safety rating of the carrier.
The notation described in paragraph (1)(C) shall include the following: ‘Readers should not draw conclusions about a carrier’s overall safety condition simply based on the data displayed in this system. Unless a motor carrier has received an UNSATISFACTORY safety rating under part 385 of title 49, Code of Federal Regulations, or has otherwise been ordered to discontinue operations by the Federal Motor Carrier Safety Administration, it is authorized to operate on the Nation’s roadways.’.
Nothing in this section may be construed to restrict the official use by State enforcement agencies of the data collected by State enforcement personnel.
The Administrator shall develop functional specifications to ensure the consistent and accurate input of data into systems and databases relating to the CSA program.
shall be made available to public and private sector developers.
The Administrator shall ensure that internal systems and databases accept and effectively manage data using uniform standards.
Before implementing the functional specifications developed pursuant to subsection (a) or the standards described in subsection (c), the Administrator shall seek input from the State agencies responsible for enforcing section 31102 of title 49, United States Code.
Not later than 1 year after a certification under section 5223, the Secretary shall task the Motor Carrier Safety Advisory Committee with reviewing the treatment of preventable crashes under the SMS.
Not later than 6 months after being tasked under subsection (a), the Motor Carrier Safety Advisory Committee shall make recommendations to the Secretary on a process to allow motor carriers and drivers to request that the Administrator make a determination with respect to the preventability of a crash, if such a process has not yet been established by the Secretary.
report to Congress on how the Secretary intends to address the treatment of preventable crashes.
Not later than 18 months after the date of the enactment of this Act [Oct. 13, 2006], the Secretary of Transportation, in cooperation with the Secretary [of Homeland Security], shall issue regulations to implement the recommendations contained in the memorandum of the Inspector General of the Department of Transportation issued on June 4, 2004 (Control No. 2004–054).
Not later than 18 months after the date of the enactment of this Act [Oct. 13, 2006], the Secretary of Transportation, in cooperation with the Secretary [of Homeland Security], shall issue a regulation to implement the recommendations contained in the Report on Federal Motor Carrier Safety Administration Oversight of the Commercial Driver’s License Program (MH–2006–037).
Not later than 18 months after the date of the enactment of this Act [Oct. 13, 2006], the Secretary [of Homeland Security], in consultation with the Secretary of Transportation, shall draft guidelines for Federal, State, and local law enforcement officials, including motor carrier safety enforcement personnel, on how to identify noncompliance with Federal laws uniquely applicable to commercial motor vehicles and commercial motor vehicle operators engaged in cross-border traffic and communicate such noncompliance to the appropriate Federal authorities. Such guidelines shall be coordinated with the training and outreach activities of the Federal Motor Carrier Safety Administration under section 4139 of SAFETEA-LU (Public Law 109–59) [set out below].
Pub. L. 109–59, title IV, § 4127, Aug. 10, 2005, 119 Stat. 1741, as amended by Pub. L. 111–147, title IV, § 422(g), Mar. 18, 2010, 124 Stat. 87; Pub. L. 111–322, title II, § 2202(g), Dec. 22, 2010, 124 Stat. 3525; Pub. L. 112–5, title II, § 202(g), Mar. 4, 2011, 125 Stat. 17; Pub. L. 112–30, title I, § 122(f), Sept. 16, 2011, 125 Stat. 349; Pub. L. 112–102, title II, § 202(f), Mar. 30, 2012, 126 Stat. 274; Pub. L. 112–140, title II, § 202(f), June 29, 2012, 126 Stat. 395; Pub. L. 112–141, div. C, title II, § 32603(f), div. G, title II, § 112002(e), July 6, 2012, 126 Stat. 808, 983; Pub. L. 113–159, title I, § 1102(f), Aug. 8, 2014, 128 Stat. 1844; Pub. L. 114–21, title I, § 1102(f), May 29, 2015, 129 Stat. 222; Pub. L. 114–41, title I, § 1102(f), July 31, 2015, 129 Stat. 449; Pub. L. 114–73, title I, § 1102(f), Oct. 29, 2015, 129 Stat. 572; Pub. L. 114–87, title I, § 1102(f), Nov. 20, 2015, 129 Stat. 681, which provided for an outreach and education program, was repealed by Pub. L. 114–94, div. A, title V, § 5103(c)(4), Dec. 4, 2015, 129 Stat. 1527. See section 31110(c) of this title.
Pub. L. 109–59, title IV, § 4128, Aug. 10, 2005, 119 Stat. 1742, which provided for grants to States for projects and activities to improve the accuracy, timeliness, and completeness of commercial motor vehicle safety data reported to the Secretary of Transportation, was repealed by Pub. L. 114–94, div. A, title V, § 5101(e)(6), Dec. 4, 2015, 129 Stat. 1525, effective Oct. 1, 2016.
Not later than 180 days after the date of enactment of this Act [Aug. 10, 2005], the Administrator of the Federal Motor Carrier Safety Administration shall conduct outreach and provide training as necessary to State personnel engaged in the enforcement of Federal motor carrier safety regulations to ensure their awareness of the process to be used for verification of the operating authority of motor carriers, including motor carriers of passengers, and to ensure proper enforcement when motor carriers are found to be in violation of operating authority requirements.
provide advice and recommendations to the Administrator on motor carrier safety regulations.
The committee shall be composed of not more than 20 members appointed by the Administrator from among individuals who are not employees of the Administration and who are specially qualified to serve on the committee because of their education, training, or experience. The members shall include representatives of the motor carrier industry, safety advocates, and safety enforcement officials. Representatives of a single enumerated interest group may not constitute a majority of the members of the advisory committee.
The Administrator shall designate the chairman of the committee.
A member of the committee shall serve without pay; except that the Administrator may allow a member, when attending meetings of the committee or a subcommittee of the committee, expenses authorized under section 5703 of title 5, relating to per diem, travel, and transportation expenses.
The Administrator shall provide support staff for the committee. On request of the committee, the Administrator shall provide information, administrative services, and supplies that the Administrator considers necessary for the committee to carry out its duties and powers.
Reducing the number and rates of crashes, injuries, and fatalities involving commercial motor vehicles.
Improving the consistency and effectiveness of commercial motor vehicle, operator, and carrier enforcement and compliance programs.
Identifying and targeting enforcement efforts at high-risk commercial motor vehicles, operators, and carriers.
Improving research efforts to enhance and promote commercial motor vehicle, operator, and carrier safety and performance.
To increase the number of inspections and compliance reviews to ensure that all high-risk commercial motor vehicles, operators, and carriers are examined.
To eliminate, with meaningful safety measures, the backlog of rulemakings.
To improve the quality and effectiveness of data bases by ensuring that all States and inspectors accurately and promptly report complete safety information.
To eliminate, with meaningful civil and criminal penalties for violations, the backlog of enforcement cases.
To provide for a sufficient number of Federal and State safety inspectors, and provide adequate facilities and equipment, at international border areas.
In addition, the strategy and annual plans shall include estimates of the funds and staff resources needed to accomplish each activity. Such estimates shall also include the staff skills and training needed for timely and effective accomplishment of each goal.
In developing and assessing progress toward meeting the measurable goals set forth in this subsection, the Secretary and the Federal Motor Carrier Safety Administrator shall not take any action that would impinge on the due process rights of motor carriers and drivers.
Beginning with fiscal year 2001 and each fiscal year thereafter, the Secretary shall submit to Congress the strategy and annual plan at the same time as the President’s budget submission.
The Secretary and the Federal Motor Carrier Safety Administrator.
The Administrator and the Deputy Federal Motor Carrier Safety Administrator.
The Administrator and the Chief Safety Officer of the Federal Motor Carrier Safety Administration.
The Administrator and the regulatory ombudsman of the Administration designated by the Administrator under subsection (f).
Each annual performance agreement entered into under paragraph (1) shall include the appropriate numeric or measurable goals of subsection (b).
Consistent with the current performance appraisal system of the Department of Transportation, the Secretary shall assess the progress of each official (other than the Secretary) referred to in paragraph (1) toward achieving the goals in his or her performance agreement. The Secretary shall convey the assessment to such official, including identification of any deficiencies that should be remediated before the next progress assessment.
In deciding whether or not to award a bonus or other achievement award to an official of the Administration who is a party to a performance agreement required by this subsection, the Secretary shall give substantial weight to whether the official has made satisfactory progress toward meeting the goals of his or her performance agreement.
No less frequently than semiannually, the Secretary and the Administrator shall assess the progress of the Administration toward achieving the strategic goals of subsection (a). The Secretary and the Administrator shall convey their assessment to the employees of the Administration and shall identify any deficiencies that should be remediated before the next progress assessment.
The Secretary shall report annually to Congress the contents of each performance agreement entered into under subsection (d) and the official’s performance relative to the goals of the performance agreement. In addition, the Secretary shall report to Congress on the performance of the Administration relative to the goals of the motor carrier safety strategy and annual plan under subsection (a).
The Secretary may establish a commercial motor vehicle safety advisory committee to provide advice and recommendations on a range of motor carrier safety issues.
The members of the advisory committee shall be appointed by the Secretary and shall include representatives of the motor carrier industry, drivers, safety advocates, manufacturers, safety enforcement officials, law enforcement agencies of border States, and other individuals affected by rulemakings under consideration by the Department of Transportation. Representatives of a single interest group may not constitute a majority of the members of the advisory committee.
The advisory committee shall provide advice to the Secretary on commercial motor vehicle safety regulations and other matters relating to activities and functions of the Federal Motor Carrier Safety Administration.
develop effective safety improvement policies and programs.
The study shall be designed to yield information that will help the Department and the States identify activities and other measures likely to lead to significant reductions in the frequency, severity, and rate per mile traveled of crashes involving commercial motor vehicles, including vehicles described in section 31132(1)(B) of title 49, United States Code. As practicable, the study shall rank such activities and measures by the reductions each would likely achieve, if implemented.
The Secretary shall make available for public comment information about the objectives, methodology, implementation, findings, and other aspects of the study.
The Secretary shall promptly transmit to Congress the results of the study, together with any legislative recommendations.
The Secretary shall review the study at least once every 5 years and update the study and report as necessary.
Pub. L. 106–159, title II, § 225, Dec. 9, 1999, 113 Stat. 1771, directed the Secretary, in cooperation with the States, to carry out a program to improve the collection and analysis of data on crashes, including crash causation, involving commercial motor vehicles and to transmit a report on the program and authorized appropriations for fiscal years 2001, 2002, and 2003.