The court granted in part plaintiff's motion to exclude the testimony of defendants' noninfringement expert because the expert engaged in claim construction. "In his report, [the expert] opines that the term 'support member,' which is included in claim 6 of the [patent], is synonymous with the term 'plate member'. . . . [His] proposed definition for 'support member' is not based on his technical expertise, but rather, on an interpretation of the language used in claim 6 of the [patent] in light of the language used in the patent's specification. [The expert] thus appears to be offering 'a classic claim construction determination.' The court concludes that because [the expert's] opinion concerning the meaning of 'support member' is an improper attempt at claim construction, it must be excluded. This does not necessarily mean, however, that Defendants are barred from making an argument about the meaning of the term. Should either side believe that additional claim construction is necessary, a party move for leave to present additional claim terms for construction."
The court denied plaintiff's motion to exclude the testimony of defendant's damages expert regarding a reasonable royalty on the ground that forward citation analysis was unreliable. "Forward citation analysis is a method of estimating the value of a particular patent based on the number of times the patent is cited by later patents. . . . [T]he forward citation method of analysis has been recognized in the academic literature as reliable since the 1990s. . . . [C]ourts have not rejected forward citation analysis outright. This Court determines that a single academic paper . . . is not sufficient to rebut decades of literature supporting forward citation analysis."
The court denied plaintiff's motion for Rule 11 sanctions for defendant's unsuccessful motion for attorney fees. "[Defendant's] section 285 motion was quite light on support. However, the court finds an award of attorneys’ fees to [plaintiff] as a sanction inappropriate for the following reasons. First, after [Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014)], long-shot section 285 motions appear to be quite common. It would be difficult to sanction [defense] counsel for following the well-trodden road of seeking to extend the law under Octane’s somewhat amorphous equitable factors. Second . . . [plaintiff's] decision to not serve a Rule 11 letter to [defendant] before trial somewhat undermines its persuasiveness as to the section 285 motion because it causes the Rule 11 motion to verge on appearing 'simply an effort to extract some measure of revenge.'. . . It is not plain that awarding [plaintiff] attorneys’ fees would more efficiently deter frivolous section 285 motions better than the attorneys’ fees that [defendant] itself incurred on briefing a fruitless section 285 motion and opposing the Rule 11 motion."
The court denied defendants' motion to dismiss on the ground that one of plaintiff’s patents for reducing signal interference on mobile devices encompassed unpatentable subject matter because the asserted claims were not directed toward an abstract idea. "[Defendant] argues that the [patent] is directed to a mathematical equation because its claimed advance over the prior art is the inclusion of a specific set of 16 cyclic shift intervals, which [defendant] deems 'math.'. . . [T]he [patent] claims are directed to a specific improvement in cellular communications, and not an abstract idea or mathematical formula. . . . While the improvement necessarily relies on math because the low signal overload depends on the limited set of cyclic shift intervals, itself derived from mathematical equations and variables dictated by a cell’s size, that reliance does not render it ineligible for a patent. . . . The [patent] does not attempt to claim a mathematical formula. It discloses a method that uses a predefined set of numbers -- itself derived from an equation, but not occurring in the natural environment -- to enable a mobile device to more efficiently synchronize with a base station. This advance entails more than an abstract idea or 'just math.'"
The court denied defendant's motion to exclude the testimony of plaintiff's damages expert as unreliable because it was based on aspirational royalty rates. "[Defendant] argues that [plaintiff's expert] cannot use [the] announced and demanded royalty rates [of a company acquired by defendant] because they are simply [the company's] aspirational rates. This argument attacks the credibility of [the expert's] inputs and conclusions, not his methodology. The Court denies the motion and finds that [defendant] can sufficiently address its concerns through cross-examination."
The court denied plaintiff's motion to strike defendant's amended invalidity contentions due to judicial estoppel because of statements defendant made in obtaining a stay pending inter partes review. "While the Court appreciates [plaintiff's] frustration at having to litigate certain issues that were presented to the PTAB, particularly defenses on which the PTAB declined to institute review based on [defendant's] failure to establish a likelihood of success or because the asserted prior art combinations were redundant in light of other reviewed combinations, the Court cannot ignore the fact that the Federal Circuit has determined that it is appropriate to do so. . . . While the Court and [plaintiff] may have preferred a greater simplification of issues, the IPR proceedings did reduce the number of prior art references and defenses that [defendant] can now raise. . . . At best, the post IPR viability of [defendant's] §§ 102 and 103 defenses in light of [recent] Federal Circuit’s decisions . . . may impact the Court’s decisions going forward regarding whether matters should be stayed pending IPR. It does not, however, convince the Court that [defendant] should be judicially estopped from raising any defenses in this litigation."
The court denied plaintiff's motion to reconsider an earlier order awarding attorney fees under 35 U.S.C. § 285 because the case was exceptional. "[Plaintiff] made arguments that were foreclosed by the Court, and [its] conduct before this and other courts strongly suggests [plaintiff's] goal in filing this action was settlement. Alone, these two observations support the Court’s finding that the case is exceptional. In addition, [plaintiff] failed to file final infringement contentions, failed to communicate with [defendant] even after multiple judges warned [plaintiff] about a possible dismissal for want of prosecution, was uncooperative throughout discovery, and failed to engage in meaningful settlement discussions. The Court, in its sound discretion, finds that the totality of the circumstances renders this case exceptional. The Court certainly has never seen another case like it."
The court granted defendant's motion for judgment on the pleadings because the asserted claims of plaintiff’s videophone mailbox patent encompassed unpatentable subject matter and found that the claims were directed toward an abstract idea. "The [patent-in-suit] has two main components: a user station having a videophone and an electronically connected central data center. The videophone is an integrated device that includes a telephone, general purpose computer, a video screen, a memory chip, an interface chip, encoders, and means for inputting transaction information. . . . The broad general definition of a 'videophone' in the patent and the prior art indicates that the thrust of the patent is the interactive mailbox facility system, not the videophone itself. . . . Plaintiff argues that the inclusion of tangible components, alone, saves the patent from being abstract. The Federal Circuit has found, however, a number of claims involving tangible components to be abstract. . . . A comparison of the [patent] claims with prior art reveals that the claims focus on the functionality of conducting a transaction and disclose no more than the abstract idea of conducting transactions using conventional computer components, a telephone and centralized data storage."
The court denied defendant's motion to dismiss on the ground that plaintiff’s patent for securing a server by filtering unauthorized communications encompassed unpatentable subject matter because defendant did not establish that the asserted claims lacked an inventive concept. "[T]he [patent’s] claims describe 'how its particular arrangement of elements is a technical improvement over prior art ways of filtering such content.'. . . Despite the protection that firewalls and routers provide against low level protocols, service provider networks remain susceptible to unauthorized communications from specific application protocols. To remedy this, the [patent] implements a filter between the client and server that identifies and eliminates unauthorized requests. The [patent] tracks authorized or unauthorized requests by maintaining a protocol database 'which may be continuously updated on an ongoing, real-time basis and which more accurately reflects the set of allowable actions.'. . . When combining Claims 1, 15, 25, and 26, along with the related dependent claims, and construing these in favor of [plaintiff] as required at this stage in the litigation, the Court finds that the [patent] 'recite[s] a specific, discrete implementation of the abstract idea of filtering content.'"
The court granted defendant's motion to dismiss because the asserted claims of plaintiff’s video content distribution patents encompassed unpatentable subject matter and found that the claims were directed toward an abstract idea. "[Plaintiff] argues that, like [Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016)], the claims improve computer functionality. But that is not the case. Here, claim one of both the patents covers a method of receiving video data, limited to a certain length and frame rate, from a camera, operated by a user, transcoding the video data, and transferring the video data for distribution. In short the claims each cover the process of automatically transcoding user recorded video files to a predetermined format that is suitable for a television broadcast or publication on the internet. The Federal Circuit has repeatedly found similar claims directed toward gathering, processing, and outputting information are abstract. . . . [T]hese claims do not improve the functioning of the computer itself, they facilitate uploading video into a certain format, a process that was previously possible without the patents at issue. Thus the claims merely facilitate uploading video."
Following a stipulation of infringement and a bench trial on damages, the court denied plaintiffs' motion for attorney fees under 35 U.S.C. § 285 because the totality of the circumstances were not exceptional. "With the exception of the single patent infringement claim at issue in this Order, all of Plaintiffs’ claims were dismissed on the merits. The conduct for which Defendants were sanctioned related to procedural issues before this Court. Defendants have already received sanctions sufficient for the purpose of deterrence of future similar conduct. Once the legal issues were narrowed for trial by the Court, Defendants conceded liability and agreed to the entry of an award for damages against them. Looking at the allegations as a whole and the totality of the circumstances in this case, there is nothing that makes this matter any more exceptional than other patent cases involving similar conduct."
The court granted defendant's motion for summary judgment that it did not infringe plaintiff's object tracking patent and rejected plaintiff's divided infringement argument. "[T]he Court is not convinced that [plaintiff's] theory as to how [defendant] conditions a customer’s participation in the accused system rises to the level of 'directs or controls.' [Plaintiff] contends that a customer’s use of the system is conditioned on the customer performing the defining steps because '[defendant] does not provide the full benefit of the accused fleet-tracking services unless customers enter the requisite data.' If that was sufficient to establish divided infringement under § 271(a), then the Supreme Court’s [Limelight Networks, Inc. v. Akamai Techs., Inc., 134 S. Ct. 2111 (2014)] decision would have little meaning. It will always be true that a user’s benefit from using software will increase as the user explores additional functionality. That is not what the Federal Circuit meant by 'conditions participation.' [Plaintiff's] theory stands in stark contrast to the circumstances considered by the Federal Circuit in [Akamai Techs., Inc. v. Limelight Networks, Inc., 797 F.3d 1020 (Fed. Cir. 2015)], in which the accused infringer required customers to sign a standard form contract that delineated which claimed steps the customers 'must perform.' Although the Federal Circuit acknowledged that 'other factual scenarios may arise which warrant attributing others’ performance of method steps to a single actor,' [plaintiff] has not shown this to be such a scenario."
The court denied defendant's motion to stay pending inter partes review initiated by third parties in one of plaintiff's other actions because the lack of potential simplification of issues and undue prejudice did not favor a stay. "In this case, the [PTO] has not instituted review on all of the asserted claims nor have defendants agreed to be bound by the estoppel provisions of 35 U.S.C. § 315 as would the petitioner. . . . [T]he limited estoppel proposed by Defendants may not actually simplify the issues at all. . . . [U]nder the limited estoppel proposed here, Defendants could raise new obvious combinations using old prior art the PTO considered, provided at least one new (perhaps inane) reference not previously considered by the PTO is used to meet one claim element. This would not simplify the case; rather, it very well might complicate the case, by precipitating a dispute as to whether such a combination fell within the carefully worded limited estoppel, i.e., whether such combination fell within 'a specific ground(s) upon which those IPRs were instituted.'. . . [A] full statutory estoppel would avoid such disputes, but, as some have called it, 'estoppel light' would not. The absence of a full statutory estoppel not only increases the ability of litigants to 'game the system' and devise an unfair second bite at the apple, it also has the potential to increase rather than reduce the complexity of the validity issues that may come before the Court."
The court granted defendant's motion for a second round of claim construction briefing because of positions plaintiff advanced in other litigation and inter partes review. "A fundamental dispute exist as to the proper construction of the 'dynamically updating' phrases from the [patents-in-suit]. . . . [In an earlier Markman hearing] Plaintiff argued for the plain and ordinary meanings of the terms. . . . During the subsequent IPR proceedings, Plaintiff arguably represented that the prior art submitted by Defendant did not meet the claim limitation because the prior art taught manually updating search results. Defendant contends that Plaintiff, having made these arguments before the PTAB, cannot now accuse products of infringing these claims where the 'dynamically updating . . .' step is allegedly performed only after user intervention. . . . There is good cause to depart from the default deadlines and obligations of the Patent Local Rules because resolving the targeted number of fundamental disputes described above will assist the fact finder in ruling on the patent infringement claims, help the parties tailor discovery to the scope of claims, and allow experts to render more precise opinions."
The magistrate judge recommended denying without prejudice defendants' motion to dismiss on the ground that plaintiff’s cloud computing management patent encompassed unpatentable subject matter, but found that the claims were directed toward an abstract idea. "[T]he Court determines that 'setting up and managing a cloud computing environment' is in fact an abstract idea. That concept -- without more -- appears to implicate an idea that is 'devoid of a concrete or tangible application[,]' or 'untethered from real-world application.' Nor has Plaintiff . . . sufficiently explained why considering the idea to encompass a 'cloud' environment would, on its face, necessarily conjure to mind sufficiently concrete structure or applications that would take the concept out of the realm of an abstract idea."
Following a jury verdict of willful infringement, the court partially granted plaintiff's motion for enhanced damages because of defendant's knowledge of the patent and license negotiation tactics. "[T]he Court is persuaded that [plaintiff] is entitled to enhanced damages toward the lower end of that spectrum. It is undisputed that [defendant] had detailed knowledge of the patents-in-suit long before the filing of this lawsuit. . . . [T]he Court makes note of with the manner in which [defendant] abruptly terminated licensing negotiations. After a long series of meetings between the parties . . . [defendant] invited [plaintiff's] representatives to Korea one last time and indicated that it would be making a monetary offer for a license. Rather than make an offer or engage in serious, good faith negotiations, [defendant] delivered a terse one-page presentation stating that a lawsuit at that time between the parties was 'preferable' to a license. . . . This should have been done by email. [Defendant's] conduct in making [plaintiff] send representatives to Korea to be handed a one-page document like this is clearly within totality of the circumstances which the Court should properly consider."
The court granted in part plaintiff's motion for an order allowing it to use documents at trial over which defendant claimed privilege. "[W]ith regards to certain emails, [defendant] did not identify to the court, through its privilege log or otherwise, the employer of, or status as an attorney for [defendant] of, all of the individuals who made, or received copies of, these communications. [Defendant] did not show that the underlying facts in those emails or the emails themselves concerned a subject matter on which attorney’s advice was sought by [defendant]. To the extent that these may be communications among [defendant's] employees that were authorized to act on the legal advice — which is not clear to the court — [defendant] has not demonstrated that these communications qualify as legal advice rather than more generally relate to business decisions concerning finances or sales of products, etc. In today’s corporate environment, in-house legal counsel is often asked for input on and provides advice related to business decisions. Therefore, while [a recipient] may be an attorney, [defendant] has not met its burden to prove that these communications are privileged."
The U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB) offers a few avenues through which any person or entity can challenge the validity of an issued U.S. patent. Two of these processes are known as inter partes review (IPR) and post grant review (PGR). These two methods allow people other than the patent owner who have not previously challenged the validity of a patent through filing of a civil action in U.S. district court to seek review of a patent on a charge of invalidity.
Once a motion to challenge a patent’s validity through an IPR or PGR process is filed, the administrative judges at the PTAB decide whether to institute the review. If institution of the IPR or PGR is denied, then the legal matter is closed and the interested party filing for PTAB review must find another way to challenge the patent’s validity.
The rate of institution for IPRs and PGRs filed against patents in the pharmaceutical and biotech sectors is on the rise recently, according to statistics pulled from Docket Navigator’s data analytics services. Of the 231 combined IPR and PGR petitions filed against such patents during 2015, a total of 92, or 39.8 percent, were denied institution by the PTAB. Thus far in 2016, the PTAB has denied institution on only 34.3 percent of the 254 IPRs and PGRs filed this year against drug and biotech patents. This means that the percentage of review processes which are granted either in full or in part by the PTAB is increasing.
Meanwhile, institution denial rates for all other patent classifications has remained very steady over nearly two years. Through most of 2016, the rate at which IPR and PGR petitions on other patents are denied institution by the PTAB is 33.2 percent. This is very close to the same percentage of such petitions being denied institution in 2015, when 450 petitions of a total 1,349 IPR and PGR petitions were denied institution by the PTAB. It bears noting that the percentage of IPRs and PGRs which are granted institution has risen from 37.6 percent in 2015 up to 42.3 percent thus far through 2016, which means that the percentage of petitions which are only partially granted has dropped from 29 percent in 2015 down to 24.3 through most of 2016.
Overall, 2016 looks like it will see fewer IPR and PGR instituted decisions at the PTAB than last year. By the end of 2016, it’s estimated that a total of 1,266 IPR and PGR institution decisions will be filed, lower than the 1,349 such decisions filed through 2015. So while the percentage of petitions granted full institution by the PTAB is up in 2016, the total amount of institutions is down.
If the current trend continues, 2016 may be the first year where the number of petitions filed in the PTAB decreases from the previous year. Docket Navigator estimates that there will be 1,716 total petitions (IPR, PGR, and Covered Business Method Reviews) filed in 2016, compared with 1,798 that were filed in 2015.
Accurate data analytics can give both patent owners and legal teams a better idea of the challenges which are unique to a certain sector of technology. Docket Navigator delivers such analytics which can be helpful to those who need help navigating patent challenges at PTAB.
The court denied defendants' motion for judgment on the pleadings on the ground that plaintiff’s wireless communications patents encompassed unpatentable subject matter because the claims were not directed toward abstract mathematical algorithms. "Claims 'improv[ing] the functioning of [a] computer' or 'improving an existing technological process' are patent-eligible even if they rely on a mathematical algorithm. . . . The [two] patents describe problems and solutions firmly rooted in technology used for wireless communications. Specifically, [one] patent explains that the number of code sequences available in the prior art to maintain orthogonality was 'limited.'. . . Similarly, the [other] patent describes several problems in the prior art with transmitting preamble sequences over a random access channel. Specifically, prior art systems used a preamble of fixed length, limiting flexibility under different cell sizes. . . . Because the [two] patents are directed to technological improvements resolving specific problems in a wireless communications system, the court finds that they claim patent-eligible subject matter under § 101."
The court denied defendant's motion to dismiss plaintiff's claims for willful infringement and enhanced damages because plaintiff filed suit on the day its patent-in-suit issued. "In its complaint, [plaintiff] alleges several instances in which [defendant] had 'advance notice' of [the patent's] issuance. . . . Furthermore, the fact that these same parties are currently involved in litigation involving the alleged infringement of another . . . patent relating to the same application could conceivably contribute to a finding of willfulness. Taking [plaintiff's] allegations as true, the Court cannot say that it is implausible that [defendant] had knowledge of the patent at the time that the alleged infringement began and [plaintiff] filed suit. . . . Unlike a mere patent application, a Notice of Allowance, and particularly an Issue Notification, are strong indications that the patent will issue."


Jeffrey Brian Cohen is charged with wire fraud,  aggravated identity theft,  money laundering,  making false statements to an insurance regulator,  and obstructing justice. ECF No. 78 (third superseding indictment). Pending are pretrial motions. A hearing was held on May 4, 2015. For the following reasons, the motions will be resolved as discussed herein.
From 2008 to 2013, Cohen operated a group of related insurance companies. ECF No. 284 at 1. Until August 2013, Cohen was the President, Chairman of the Board, and majority owner of the companies. Id. at 1-2. In 2012, the Delaware Insurance Commissioner ("Commissioner") began investigating Indemnity's financial stability. Id. at 2. Delaware regulators were concerned about Indemnity's ability to collect $20 million owed by IDG and $5.1 million purportedly on deposit at Susquehanna Bank. Id.; Gov. Ex. 1 (January 2, 2014 Delaware Court of Chancery Opinion, attached to the search warrant affidavit) (hereinafter "Del. Ct. Chancery Op.") at 3. The $20 million receivable potentially overstated Indemnity's assets and "should have been written down or written off as uncollectable." ECF No. 284 at 2 n. 1.
In May 2013, the Commissioner obtained a seizure order from the Delaware Court of Chancery authorizing the regulatory takeover of Indemnity. Del. Ct. Chancery Op. at 1-2. In July 2013, after examining Indemnity under the seizure order, the Commissioner filed a petition to liquidate Indemnity "in light of (i) acts of fraud by Cohen and (ii) Indemnity's unsound financial condition." Id. at 3. Thereafter, Delaware Department of Insurance representatives and Cohen used office space at 950 Ridgebrook Road, Sparks, Maryland ("950 Ridgebrook Road"). ECF No. 284 at 3.
On August 5, 2013, Cohen resigned as Indemnity's Chairman of the Board, and the Board removed him from officer positions. Del. Ct. Chancery Op. at 8. "[A]fter August 5, Cohen's only connection to Indemnity was as the owner of [RB], an entity that purports to own 99% of Indemnity's equity by virtue of having been issued a zero-dollar insurance policy by Indemnity." Id.  On September 1, 2013, "Cohen was banished" from 950 Ridgebrook Road. ECF No. 76 at 5.
In September 2013, Indemnity sought to modify the seizure order because Cohen had interfered with the company "and the efforts of the Commissioner." Del. Ct. Chancery Op. at 9. The amended seizure order "clarif[ied] that Cohen was prohibited from accessing Indemnity's IT systems and from communicating with Indemnity's employees and business associates." Id. at 10. Although the seizure order "had granted the Commissioner title and control over all of Indemnity's assets, " the amended seizure order confirmed that those assets "included intangible assets like Indemnity's information systems and electronic records." Id. at 11.
On November 1, 2013, the U.S. Attorney's Office for the District of Maryland began a criminal investigation of Cohen. ECF No. 284 at 6.
On April 30, 2014, FBI Special Agent Jennifer Perry obtained Jeffrey Miceli's consent to search 950 Ridgebrook Road. ECF No. 299-1 at 1-3. Miceli acted as the Commissioner's agent following Indemnity's and IDG's regulatory takeover. ECF No. 299 at 1. During the search agents took video and still photographs of the premises and received a copy of the floor plan, a "server inventory[, ] and printouts of [miscellaneous] network details." ECF No. 299-1 at 2, 4.
On May 5, 2014, Agent Perry obtained a warrant to search 950 Ridgebrook Road for evidence of mail and wire fraud and false statements to insurance regulators. Gov. Ex. 1 at 6. The affidavit supporting the search warrant incorporated the January 2, 2014 Delaware Court of Chancery Opinion by Vice Chancellor Laster sanctioning Cohen for violating previous orders about the seizure of Indemnity, and the April 9, 2014 Delaware Supreme Court Opinion affirming the Court of Chancery's Orders. See Gov. Ex. 1.
On May 8, 2014, federal agents conducted the search and seized about 50 boxes of documents. ECF No. 284 at 6-7; Gov. Ex. 2. The documents "were taken to the FBI document laboratory, scanned, and produced to [Cohen] in searchable electronic format." ECF No. 284 at 7. On site procedures were used "to ensure that consideration was shown to the possibility of obtaining attorney-client privileged material." Id. The list of items seized shows certain documents marked as "TAINT DOCUMENTS." Gov. Ex. 2 at 3.
On June 24, 2014, Postal Inspector Kalliopi Tserkis-Mullins of the United States Postal Inspection Service obtained a warrant to search Cohen's home at 2419 Long Ridge Road, Reisterstown, Maryland ("2419 Long Ridge Road") for evidence of mail and wire fraud and false statements to insurance regulators. Gov. Ex. 3 at 5. The search warrant authorized the seizure of various documents and records and computers, "related peripheral" devices, and electronic data "pertaining to the" list of items to be seized. Id. at 3-4. The affidavit stated the procedure by which Cohen's electronic data would be reviewed to minimize the risk that information not subject to the search warrant would be viewed. Id. at 18-19.
On June 25, 2014, federal agents executed the search warrant. ECF No. 284 at 8. According to the government, "Cohen inquired why the agents were executing the warrant that day." Id. As in the search of 950 Ridgebrook Road, "procedures were employed to minimize the risk that the investigative team had access to attorney-client privileged information." Id. During the search, agents found notes containing a "target list" that included "DE Folks" and "MD government and judges, " a recently-executed will, survivalist gear, firearms, financial and corporate records, and electronic evidence. Id.; Gov. Ex. 4; Hr'g Tr. at 16.
That day, Cohen was arrested at his home and given his Miranda warnings. ECF No. 284 at 8; Hr'g Tr. at 11-12. Cohen signed a written Miranda waiver form and made a lengthy statement to Agents Costello and Perry about "major financial frauds." Gov. Ex's. 5, 6 at 18. During the interview, the scope of the investigation changed when agents executing the search warrant alerted Agents Perry and Costello that wigs, masks, survivalist gear, notebook, firearms, and Cohen's last will and testament had been found in the home. Hr'g Tr. at 14-15. Agents Perry and Costello asked Cohen about those items, and whether he had planned to harm Delaware officials or other government personnel. Id. at 15-17.
At the end of the interview, Cohen signed a written consent form authorizing the search of his Lexus car. Gov. Ex. 7; Hr'g Tr. at 18. The consent form notified Cohen that he had "the right to refuse" consent and to "require us to secure a search warrant, " and "any incriminating evidence... may be used against [him] in court." Gov. Ex. 7. Cohen later added his Mercedes car to the consent form; however, nothing was seized from that car. Id.; Gov. Ex. 9; ECF No. 284 at 11.
Inside the Lexus agents found, attached to a clipboard, a Google Maps printout of directions from Baltimore to the Delaware Lieutenant Governor's home and from there to Vice Chancellor Laster's home. ECF No. 284 at 11; Hr'g Tr. at 21-22. Inside the clipboard were about 119 pages of computer printouts and handwritten notes. ECF No. 284 at 11. Agents also found a voice recorder, spotting scope, rifle tripod, and ammunition. Id.; Gov. Ex. 8.
After agents found an empty 9mm Smith & Wesson pistol case at Cohen's home, and Cohen told agents the firearm was at "Checks N' Keno, " agents obtained a warrant to search the business premises located at 6408 Reisterstown Road. Gov. Ex. 10. Agents seized the pistol, electronic media, and documents. Gov. Ex. 11.
According to the government, agents continued to subject the seized evidence to measures designed to protect the attorney-client privilege. ECF No. 284 at 12.
On June 24, 2014, a grand jury indicted Cohen on five counts of making false statements to an insurance regulator under 18 U.S.C § 1033(a). ECF No. 1.
On June 27, 2014, Magistrate Judge Beth P. Gesner ordered Cohen detained pending trial. ECF No. 12.
On September 16, 2014, a superseding indictment charged Cohen with five counts of wire fraud in violation of 18 U.S.C. § 1343, two counts of money laundering in violation of 18 U.S.C. § 1957, and five counts of making false statements to an insurance regulator in violation of 18 U.S.C § 1033(a). ECF No. 26. The superseding indictment "expanded the scope of the charges from a six month time span involving false statements to one regulatory authority about one bank to a five-year wire fraud scheme." ECF No. 117-1 at 3. It included forfeiture allegations of $100, 000, 000.00 in connection with the wire fraud charges, $866, 667.67 in connection with the money laundering charges, and $100, 866, 666.67 in substitute assets. ECF No. 26 at 15-16.
On November 5, 2014, the government obtained warrants to seize the following property subject to forfeiture: (1) a toy collection; (2) Fidelity investment accounts; (3) jewelry found at 2419 Long Ridge Road; (4) personal property found at 950 Ridgebrook Road; (5) four M&T Bank accounts; and (6) nine Susquehanna Bank accounts. See ECF Nos. 86-1 to 86-6 (seizure warrant applications). On November 12, 2014, the government obtained warrants to seize (7) the monetary value of a Cincinnati Life Insurance policy; and (8) a 2012 Infiniti G37 coupe ("Infiniti G37"). See ECF Nos. 86-7, 86-8. The seizure warrant applications sought assets constituting proceeds of the offenses and substitute assets.
On November 17, 2014, after a hearing, Magistrate Judge Timothy J. Sullivan granted Cohen's appointed counsel's motion to withdraw and found that Cohen had made a "knowing, voluntary[, ] and intelligent waiver of the right to counsel and will proceed pro se. " ECF No. 66.
On November 18, 2014, the government moved for a speedy trial order excluding time until trial. ECF No. 67. On November 19, 2014, Judge Sullivan appointed Alan Bussard, Esq., as Cohen's standby counsel. ECF No. 69. On November 21, 2014, Cohen moved to dismiss the indictment. ECF No. 71.
On November 25, 2014 a second superseding indictment charged Cohen with fifteen counts of wire fraud, five counts of aggravated identity theft under 18 U.S.C. § 1028A, two counts of money laundering, five counts of making false statements to an insurance regulator, and four counts of obstructing justice under 18 U.S.C. §§ 1512, 1513. ECF No. 73.
On November 26, 2014, Cohen moved to suppress evidence. ECF No. 76.
On December 2, 2014, a third superseding indictment charged Cohen with the same counts and made minor corrections to the second superseding indictment. ECF Nos. 78, 80.
On December 23, 2014, Cohen moved to sever the obstructing justice counts. ECF No. 100. On December 31, 2014, Cohen moved for a jury determination on forfeiture, ECF No. 107, to shorten time to trial, ECF No. 108, and to disqualify the Office of the U.S. Attorney, ECF No. 110. On January 6, 2015, Cohen moved for judicial action. ECF No. 115.
On January 7, 2015, the government moved for leave to file a two-day late response to two of Cohen's motions to dismiss. ECF No. 117. On January 9, 2015, the government moved for the Court to consider ECF No. 117-1 as a supplemental response. ECF No. 121. On January 15, 2015, Judge Sullivan denied Cohen's request for two paralegals. ECF No. 124. On January 20, 2015, Cohen moved for an order of contempt or sanctions against the government. ECF No. 135. On January 29, 2015, Cohen moved for reconsideration of Judge Sullivan's January 26, 2015 Order denying his motion for temporary and injunctive relief. ECF No. 153.
On February 27, 2015, the government moved for an extension of time to file a one-day late response to two motions. ECF No. 177.
On March 6, 2015, Cohen moved for Rule 404(b) notice. ECF No. 182. On March 9, 2015, Cohen moved for Rule 12(b)(4) notice, ECF No. 192, for leave to file motions after the April 1, 2015 deadline, ECF No. 190, and in limine to preclude hearsay evidence at trial, ECF No. 193. On March 16 and March 27, 2015, Cohen moved for judicial notice. ECF Nos. 213, 238.
On April 16, 2015, Cohen filed a Rule 59 objection to Judge Sullivan's oral March 30, 2015 Order denying his motion for a Farmer hearing. ECF No. 286. On April 17, 2015, Judge Sullivan granted Cohen's motion to terminate standby counsel and appointed a paralegal to assist Cohen. ECF No. 290. On April 21, 2015, Judge Sullivan appointed William Purpura, Esq. as Cohen's standby counsel. ECF No. 294. On April 27, 2015, Cohen moved in limine to call prosecution witnesses as adverse witnesses, ECF No. 308, and objected to Judge Sullivan's oral April 10, 2015 ruling about his access to standby counsel, paralegal support, and his discovery notes, ECF No. 307.
Cohen testified that "the extraordinary delay of this matter" has prejudiced his preparation of his defense and caused personal hardship. Hr'g Tr. at 64. As to personal hardship, several bills went unpaid, and Cohen's credit rating and "personal psyche" have been affected. Id. at 64-66. He has not had a "solid night['s]" sleep while detained and has had anxiety and weight loss. Id. at 66.
Cohen testified that his trial preparation has been hampered because the detention facility lacks a law library,  and he has only just received "satisfactory paralegal support, ... stand-by counsel, and IT [assistance]." Id. at 67. Cohen "accepted" that he had decided to represent himself but his "inability or non-existent ability at CDF' to do proper research is impairing [his] ability to provide a defense." Id. at 67-68. Cohen has "lost evidence as a result of the delay, because [he has not] had access to the evidence, " but he has not lost witnesses. Id. at 68. Cohen acknowledged that he has been able to visit the courthouse several days each week since January 2015 to review discovery. Id. at 69. Cohen further testified that he was not concerned about the fraud charges because "[he] know[s his] innocence will be proven." Id. at 76. Cohen acknowledged that his conduct was "a factor" giving rise to the instant charges. Id. at 80.
At the end of the hearing, the Court extended Cohen's deadline for proposing jury instructions and voir dire to May 15, 2015, and stated that the parties will be ordered to propose verdict sheets by the same date. Id. at 95.
Counts six and seven charge Cohen with money laundering under 18 U.S.C. § 1957. ECF No. 26 at 12. Cohen seeks dismissal of counts six and seven and related forfeiture provisions of the superseding indictment because those counts fail to allege the manner in which the wire frauds adversely affected a financial institution. ECF No. 71 at 1-2. The government argues that the money laundering charges underlying counts six and seven do not require an adverse effect on a financial institution. ECF No. 86 at 4.
The money laundering statute provides that "[w]hoever, in any of the circumstances set forth in subsection (d), knowingly engages or attempts to engage in a monetary transaction in criminally derived property of a value greater than $10, 000 and is derived from specified unlawful activity, shall be punished as provided in subsection (b)." 18 U.S.C. § 1957 (a) (emphasis added). Under 18 U.S.C. § 1956 (c) (7) (A),  "specified unlawful activity" includes offenses listed in 18 U.S.C. § 1961; wire fraud under 18 U.S.C. § 1343 is one of the enumerated offenses. See 18 U.S.C. § 1961 (1).
Cohen appears to argue that because wire fraud under 18 U.S.C. § 1343 is the "specified unlawful activity" underlying the money laundering counts the indictment is inadequate because the government has omitted "relevant information that deflates [its] violation theory." ECF No. 103 at 2. However, Cohen concedes that "the government include[d] the statutory language required to properly allege a money laundering violation." Id.
An indictment alleging money laundering need not allege the elements of the underlying specified unlawful activity. United States v. Cherry, 330 F.3d 658, 667 (4th Cir. 2003) (money laundering properly alleged when neither the money laundering counts nor the bank embezzlement counts - the specified unlawful activity at issue - stated all the elements of bank embezzlement); United States v. Smith, 44 F.3d 1265 (4th Cir. 1995) ("[D]etails about the nature of the unlawful activity underlying the [money laundering] need not be alleged."). Money laundering is sufficiently alleged when, as here, the government alleges "that the money laundering transactions involved funds derived from a specified unlawful activity, and that such activity violated [18 U.S.C. § 1343]." Cherry, 330 F.3d at 668. Accordingly, Cohen's motion to dismiss counts six and seven and related forfeiture provisions will be denied.
Counts one to twenty-two of the third superseding indictment charge Cohen with wire fraud, aggravated identity theft, and money laundering. ECF No. 78 at 1-15. Cohen seeks dismissal of those counts on the grounds that discovery provided to him lacks direct evidence of his specific intent to harm policy holders ;  thus, Cohen argues, the grand jury must have been improperly instructed and may have improperly relied on hearsay evidence. ECF Nos. 195 at 1-3; 262 at 1. The government argues that Cohen's intent is a trial issue that may be proved through circumstantial evidence. ECF No. 231 at 3-5.
If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits.
Id. at 408-09. The Fourth Circuit has "consistently adhered to Costello's guiding and settled principles." United States v. Jefferson, 546 F.3d 300, 313 (4th Cir. 2008).
Cohen relies on United States v. Ruggiero, 934 F.2d 440 (2d Cir. 1991). see ECF No. 295 at 3, which states that "the use of hearsay evidence before a grand jury may render an indictment invalid if... there is a high probability that the defendant would not have been indicted had only nonhearsay evidence been used." Ruggiero, 934 F.2d at 447. Cohen argues that "there is such a probability [here] because there is no evidence or witnesses whom the government interviewed that can reasonably support [Cohen's intent to harm]." ECF No. 195 at 3. Ruggiero, however, is not binding on this Court. In United States v. Alexander, 789 F.2d 1046, 1048-49 (4th Cir. 1986), the Fourth Circuit - following Costello - rejected the defendant's argument that the indictment should have been dismissed because the government's "primary grand jury witness... presented unsubstantiated and hearsay testimony to the grand jury" and "the evidence before the grand jury was not sufficiently specific as to support the allegations of the indictment." There, the Fourth Circuit held that the defendant "was properly brought to trial for the charges of which he was eventually convicted." Id. at 1049. Cohen's speculation is an insufficient basis for relief. Mechanik, 475 U.S. at 75.
Additionally, because "[f]raudulent intent may be inferred from the totality of the circumstances and need not be proven by direct evidence, " and Cohen does not attack the superseding indictment's facial validity, trial on the merits of counts one to twenty-two is merited, see Costello, 350 U.S. at 409. Accordingly, Cohen's motion to dismiss those counts will be denied.
Counts 16 to 20 of the third superseding indictment charge Cohen with aggravated identity theft under 18 U.S.C. § 1028A. ECF No. 78 at 13-14. Those counts allege that Cohen unlawfully used the personal identifying information of "T.M., " "L.S.", and "N.B." Id.
Cohen seeks dismissal on the basis that the government has not sufficiently identified the "person" whose identity was allegedly stolen. ECF No. 169 at 1-2. The government argues that the superseding indictment complies with Fed. R. Crim. P 7(c)'s "notice pleading" requirement, it is Department of Justice policy to refer to identity theft victims by their initials in the indictment to prevent additional victimization, Cohen knows the identity of the persons whose identities he allegedly stole, and "Cohen's complaints go to issues of proof which have to be resolved at trial." ECF No. 198 at 1-3.
Under Rule 7(c), the indictment must have "a plain, concise, and definite written statement of the essential facts constituting the offense charged." There is no requirement that the indictment state the full names of the individuals whose identities were allegedly stolen or provide additional identifying information; Cohen's reliance on United States v. Mitchell, 518 F.3d 230, 233 (4th Cir. 2008) is misplaced. There, the Fourth Circuit addressed whether someone's name was a sufficiently unique identifier to constitute "a means of identification of another person" such that the defendant's use of that name amounted to aggravated identity theft under 18 U.S.C. § 1028A. Mitchell, 518 F.3d at 233-235. The Court held that "[a] name alone... would likely not be sufficiently unique to identify a specific individual because many persons have the same name." Id. at 234. Mitchell, however, did not address whether the government had sufficiently alleged aggravated identity theft. Cohen's motion lacks merit, and will be denied.
Counts 23 to 27 of the third superseding indictment charge Cohen with making false statements to an insurance regulator under 18 U.S.C. § 1033. ECF No. 78 at 16-17. Cohen allegedly made several misrepresentations about Indemnity's financial status. Id.
18 U.S.C. § 1033 (a) (emphasis added).
Cohen seeks dismissal of those counts on the basis that "person" in the underlying statute, 18 U.S.C. § 1033, means "an entity" and not "an individual." ECF No. 180 at 1. The government argues that Cohen is the "whoever" in the first paragraph and that Congress has defined "whoever" and "person" to include corporations and individuals. ECF No. 218 at 1-2 ( citing the Dictionary Act, 1 U.S.C. § 1). The government further argues that if "only corporations could be convicted under Section 1033(a), the prescribed penalty would have been for a fine only and not imprisonment for 10 or 15 years." Id. at 3.
According to Cohen, the government should have charged Indemnity - not him - with making false statements because "individuals do not submit financial reports to regulators regarding themselves; only an entity submits financial reports to regulators on behalf of the entity." ECF No. 180 at 4. Though unclear, Cohen appears to argue that because he allegedly made false statements about Indemnity, the "whoever" and the "person" are not the same; thus, he cannot be held liable.
Section 1033 (a) (1) has been applied to individuals who allegedly made false statements about the companies for which they worked. See United States v. Womack, 514 F.Appx. 351, 352 (4th Cir. 2013) (per curiam) (unpublished); see also United States v. Renzi, 769 F.3d 731, 752 (9th Cir. 2014); United States v. Goff, 400 F.Appx. 507 (11th Cir. 2010) (unpublished); United States v. Sanders, No. 4:11CR13-RH/WCS, 2012 WL 385414, at *1 (N.D. Fla. Feb. 5, 2012); United States v. Segal, No. 02 CR 112, 2004 WL 2931331, at *4 (N.D. Ill.Dec. 13, 2004) (statute applied to individual defendants but judgment of acquittal was merited because the government failed to present sufficient evidence that license renewal applications submitted on behalf of the company were "financial reports or documents"). And, as noted above, the statute provides for a penalty - imprisonment - that cannot be conferred on a corporation. See 18 U.S.C. § 1033 (a) (2). Accordingly, Cohen's motion to dismiss counts 23 to 27 will be denied.
Counts 28 to 31 of the third superseding indictment charge Cohen with obstructing justice. ECF No. 78 at 18-23. Cohen seeks dismissal of count 28 on the basis that the indictment lacks "a description of the factual content" surrounding the circumstances under which Cohen allegedly stated "you are next [Attorney#2's name], I am coming after you"; thus, Cohen argues, the indictment violates his Sixth Amendment right to be informed about the "nature and cause of the accusation." ECF No. 134 at 2. Cohen also contends that the failure to provide factual context deprives him of his First Amendment rights. ECF No. 134 at 2. Cohen relies on United States v. Carrier, 672 F.2d 300 (2d Cir. 1982). See id. The government argues that Cohen's reliance on Carrier is misplaced, ECF No. 157 at 2. The government is correct.
In Carrier, the Second Circuit reversed the district court's dismissal of an indictment that had alleged threats against the president on the ground that it lacked sufficient "factual context in which the actions of the defendant occurred." 672 F.2d at 301. The Court held that "[t]he indictment [which tracked the language of the underlying offense] is valid on its face. Rule 7(c) (1)4 of the Federal Rules of Criminal Procedure neither requires nor permits that a different rule - one engrafted by judicial construction - should apply where free speech' considerations may constitute a defense to the crime charged." Id. at 301, 303. Accordingly, Cohen's argument lacks merit.


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Christophe Geiger and Elena Izyumenko, both of the Université de Strasbourg - CEIPI, are publishing Freedom of Expression as an External Limitation to Copyright Law in the EU: The Advocate General of the CJEU Shows the Way in the European Intellectual Property Review for 2019. Here is the abstract.
This article analyses the recent Opinion delivered by the Advocate General Szpunar of the CJEU in the “Afghanistan Papers” case. It highlights, in particular, four crucial points that stand out in the Opinion. First, the adoption of a fundamental right perspective when evaluating copyright regulation in general. Second, the need to ensure that copyright’s internal mechanisms designed to take into account the fundamental right to free expression (i.e., the idea/expression dichotomy, the criteria for protection such as the originality requirement and the exceptions and limitations) are interpreted in a manner that gives full effect to freedom of expression. The presence of such mechanisms should, third, by no means be understood as immunising copyright from any further freedom of expression scrutiny: according to the Advocate General, if on the contrary fundamental rights are not sufficiently taken into account by the existing copyright system, there are circumstances when the exclusive rights “must yield to an overriding interest relating to the implementation of a fundamental right or freedom” – an explicit admittance (for the first time at EU level) of the admissibility of an external limitation to copyright by freedom of expression. Finally, the Opinion highlights the unacceptability of misusing copyright for the purposes not corresponding to its rationales and its social function.
From Smithsonian Magazine, a piece about Mary Katherine Goddard, the newspaper publisher who printed and signed the Declaration of Independence in January 1777. She also served as postmaster of Baltimore, until the first Postmaster General appointed a man instead.
Newly published: Eric P. Robinson, University of South Carolina, has published Reckless Disregard: St. Amant v. Thompson and the Transformation of Libel Law (LSU Press, 2018). Here, from the publisher's website, is a description of the book's contents.
In the years following the landmark United States Supreme Court decision on libel law in New York Times v. Sullivan, the court ruled on a number of additional cases that continued to shape the standards of protected speech. As part of this key series of judgments, the justices explored the contours of the Sullivan ruling and established the definition of “reckless disregard” as it pertains to “actual malice” in the case of St. Amant v. Thompson. While an array of scholarly and legal literature examines Sullivan and some subsequent cases, the St. Amant case—once called “the most important of the recent Supreme Court libel decisions”—has not received the attention it warrants. Eric P. Robinson’s Reckless Disregard corrects this omission with a thorough analysis of the case and its ramifications. The history of St. Amant v. Thompson begins with the contentious 1962 U.S. Senate primary election in Louisiana, between incumbent Russell Long and businessman Philemon “Phil” A. St. Amant. The initial lawsuit stemmed from a televised campaign address in which St. Amant attempted to demonstrate Long’s alleged connections with organized crime and corrupt union officials. Although St. Amant’s claims had no effect on the outcome of the election, a little-noticed statement he made during the address—that money had “passed hands” between Baton Rouge Teamsters leader Ed Partin and East Baton Rouge Parish deputy sheriff Herman A. Thompson—led to a defamation lawsuit that ultimately passed through the legal system to the Supreme Court. A decisive step in the journey toward the robust protections that American courts provide to comments about public officials, public figures, and matters of public interest, St. Amant v. Thompson serves as a significant development in modern American defamation law. Robinson’s study deftly examines the background of the legal proceedings as well as their social and political context. His analysis of how the Supreme Court ruled in this case reveals the justices’ internal deliberations, shedding new light on a judgment that forever changed American libel law.
Roy Shapira, Stigler Center, University of Chicago Booth School of Business; Interdisciplinary Center, is publishing Law As Source: How the Legal System Facilitates Investigative Journalism in volume 37 of the Yale Law & Policy Review. Here is the abstract.
Legal scholars have long recognized that the media plays a key role in assuring the proper functioning of political and business markets. Yet we have understudied the role of law in assuring effective media scrutiny. This Article develops a theory of law as source. The basic premise is that the law not only regulates what the media can or cannot say, but also facilitates media scrutiny by producing information. Specifically, law enforcement actions, such as litigation or regulatory investigations, extract information on the behavior of powerful players in business or government. Journalists can then translate the information into biting investigative reports and diffuse them widely, thereby shaping players’ reputations and norms. Levels of accountability in society are therefore not simply a function of the effectiveness of the courts as a watchdog or the media as a watchdog, but rather a function of the interactions between the two watchdogs. This Article approaches, from multiple angles, the questions of how and how much the media relies on legal sources. I analyze the content of projects that won investigative reporting prizes in the past two decades; interview forty veteran reporters; scour a reporters-only database of tip sheets and how-to manuals; go over syllabi of investigative reporting courses; and synthesize insights from the communication science and economics of information literatures. The triangulation of these different methods produces three sets of insights. First, this Article establishes that legal sources matter: in today’s information environment, court documents, depositions, and regulatory reports are often the most instrumental sources of accountability journalism. Second, the Article identifies how and why legal sources matter: they extract quality information on the (mis)behavior of powerful players in a credible, libel-proof manner. Finally, recognizing the function of law as source opens up space for rethinking important legal institutions according to how they contribute to information production. In the process, we get to reevaluate timely debates, such as the desirability of one-sided arbitration clauses, which have been at the center of recent Trump Administration orders and Supreme Court decisions.
Relying on Article 10 (freedom of expression), the applicant company complained that by finding it liable for posting a hyperlink on its website which led to defamatory content the domestic courts had unduly restricted its rights....The Court highlighted the importance of hyperlinks for the smooth operation of the Internet by making information available through linking. When it came to reporting, hyperlinks were different from other traditional acts of publication as they did not present content or communicate it, but directed users to information available elsewhere or called readers’ attention to its existence. The content behind a hyperlink had also already been made available by the original publisher, providing unrestricted access to the public. Given such considerations the Court did not agree with the Hungarian courts’ approach of equating the posting of a hyperlink with the dissemination of defamatory information, which led to objective liability....Such objective liability could have negative consequences on the flow of information on the Internet by impelling authors and publishers to refrain altogether from hyperlinking to material whose content they could not control. That could directly or indirectly have a chilling effect on freedom of expression on the Internet.
Doris Estelle Long, John Marshall Law School, is publishing Copyright Reform in the 21st Century: Adding Privacy Considerations into the Normative Mix in Making Copyright Work for the Asian Pacific: Juxtaposing Harmonisation with Flexibility (ANU Press 2018). Here is the abstract.
The new technology of the ‘Digital Age’ has led to the creation of potentially new copyrightable forms of works and new methods of distribution that do not automatically fit within existing paradigms based on a hard-goods world. As a result, copyright reform efforts are underway in jurisdictions as diverse as Australia, China, New Zealand, Singapore, South Korea, the European Union (EU), Hong Kong, Japan, Canada and the United States. To avoid the mistakes of the past, and create reforms whose effectiveness survives more than a few years, we must consider a broader array of normative inputs, including, critically the inter-relationship between copyright and personal and data privacy. In the 21st Century such privacy concerns are no longer adjuncts to issues of copyright protection but instead increasingly impact the scope and effectiveness of such protection. Using examples from the United States, Canada, the European Union and the Asia Pacific, I explore the impact of privacy considerations on such diverse issues as the author/subject dichotomy, fair use/fair dealing, digital enforcement mechanisms, including notice and takedown regimes, anticircumvention protections, database and other data collections, and distributional relief, including injunctions and suggest the shape that such reforms might take. Adding privacy concerns to copyright reformation considerations will not simplify the process. But the resulting normative framework could provide a copyright regime that not only provides a balance more in concert with the social justice and access to information/culture concerns but also remains viable regardless of what the next technological revolution may bring.
Eric Goldman and Gabriella Ziccarelli, both of Santa Clara University School of Law, have published Emojis and Intellectual Property Law. Here is the abstract.
Everyone loves emojis, and why not? They are a fun and an increasingly ubiquitous way for people to express themselves. But despite their superficial frivolity, emojis can raise potentially complex and serious legal issues, including novel and complicated questions about intellectual property (IP). This essay surveys how United States IP law protects emojis, and why such protection may be problematic.
Kirill Chmel and Nikita Savin, both of the National Research University Higher School of Economics, and Michael X. Delli Carpini, Annenberg School for Communication, University of Pennsylvania, have published Making Politics Attractive: Political Satire and Exposure to Political Information in New Media Environment in Russia as Higher School of Economics Research Paper No. WP BRP 63/PS/2018. Here is the abstract.
There is an extensive body of research devoted to how political satire affects political knowledge and political behavior. Extant studies are focused on political satire in democratic countries and do not pay enough attention to authoritarian regimes. This study extends this research to non-democratic regimes, while also adding to it by exploring the extent to which the use of political satire encourages exposure to political information. We conduct an online experiment on the sample of Russian students. We borrow satirical pictures from Lentach – popular Russian social media public page, whose motto is “a propaganda of common sense” as opposed to biased political messages proliferated by government-controlled media outlets. Using both frequentist and Bayesian approaches, we found that access to political information containing satirical illustrating content increases attention to the information, relative to political news reports accompanied by standard news illustrations. The findings contribute to the literature on the political entertainment and exposure to political information, as well as to research on media under authoritarianism.
Rebecca Gould, Islamic World & Comparative Literature, College of Arts & Law, University of Birmingham; Harvard University - Davis Center for Russian and Eurasian Studies is publishing Is the ‘Hate’ in Hate Speech the ‘Hate’ in Hate Crime? Waldron and Dworkin on Political Legitimacy in Jurisprudence. Here is the abstract.
Among the most persuasive arguments against hate speech bans was made by Ronald Dworkin, who warned of the threat to political legitimacy posed by laws that deny those subject to them adequate opportunity for dissent. In his influential defence of hate speech bans, Jeremy Waldron addresses these objections. Dworkin’s concern with political legitimacy is misplaced, he argues, given the provision speech bans make for substituting permissible modes of expression for impermissible ones. I argue that this defence of speech bans misidentifies the “hate” in hate speech with the “hate” in hate crime. In contesting Dworkin, Waldron fails to contend with the necessarily entangled criminalisation of manner and viewpoint entailed in hate speech bans. By failing to grapple with the way in which every linguistic sign is constituted by both manner and viewpoint, Waldron sidesteps the ways in which hate speech bans undermine political legitimacy within liberal democracies.
David L. Hudson, Jr., has published Justice Kennedy and the First Amendment at 9 Houston Law Review Off the Record 49 (2019). Here is the abstract.
This essay reviews some of Justice Anthony Kennedy’s most significant contributions to First Amendment jurisprudence. These include his calls for absolute protection for pure political speech, his strong protection for commercial speech, his distaste for campaign finance reform laws that censored speech, his general concern for the silencing of sexual expression, his coercion test in Establishment Clause cases, and his significant failure in the public-employee free-speech decision Garcetti v. Ceballos.

matches: CJEU CJEU v. v. v. v. v. v.


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Ana Mae Barbosa e Celia M. C. Almeida Paper presented at the UNESCO Regional Meeting of Experts on Arts Education at school level in Latin America and the Caribbean in Brazil in 2001.
high school (from 15 to 18 years old).
nor recognition that it is necessary, is sufficient to guarantee art in basic education.
Experience has taught us that the situation of art education is even more problematic.
because today’s world demands an informed reader and a conscious producer.
Federal Law n. 9,294, passed on December 20 , 1996.
participation in the public scene should be complementary” (Brazil, 1998, v. 8, p. 21).
curricular parameters for the basic education in Brazil rotate.
of school knowledge.” (Brazil, 1998, v.8, p.24).
Constitution of the Federal Republic of Brazil, promulgated in 1988.
pedagogical practice, not as proposals of an imposing character, to be followed categorically.
adapted to the necessities resulting from differences in race, culture, gender, age, religion etc.
and the social-economic inequalities present in the multiplicity of Brazilian realities.
deals specifically with the Professional Area: Design.
guidelines for the proposals presented in the previous documents.
and cognition, favor the development of their creative abilities (1998b, p.91).
National Curricular References for Primary School.
National Curricular Parameters – Art.
National Curricular Parameters – High School.
Professional education: national curricular references for professional education of technical level.
Continued Professional Development Program – Parameters in effect.
National Curricular Reference for Primary School.
developing taste, and care and respect for the process of production and creation.
and objects or to role play themes or stories from everyday life.
their world. The children should also get used to reading their own productions.
they stimulate appreciation, welcome and socialize the children’s interpretations.
primary school and for the next grades (5th to 8th grade) of secondary school.
functions of art in society.
“three guiding lines: to produce, appreciate and use contexts”.
acquired through art making and appreciation.
of several cultures carried out at different times.
dance, drama and audiovisual arts form the curricular component Art in high school.
National Curricular Parameters: high school.
languages (music, visual arts, dance, drama, audiovisual arts).
only fruition but also esthetic analysis.
the subjects that contribute to the development of these projects.
documents called PCNs, came in for tough criticism from educators, for different reasons.
Ensino Médio14 (ENEM) are anchored to the proposals presented in those documents.
jacket for schools that try to take into account local necessities and specifications.
and care of those who come into contact with the school directly or indirectly.
subject Art and as a mean in the other curricular components.
school; in high school it is added visual arts. Literature is linked to teaching of Portuguese Language.
are produced by minorities, such as women’s art.
of a transformation process which has been built slowly since the 70s.
studies, trying to establish the relation between these three areas and students’ experiences.
produce or read an image one must acquire interrelated skills (Dutra and Vieira, 1992).
conceptions and requires new practice about and for visual art education.
industry, with which they are always in touch.
order to introduce these productions in school programs.
small number of museums devoted to this kind of art17.
workshops and exhibitions and publishing catalogues, books and magazines on the subject.
This picture reflects the visual art education scenario in all levels of schooling.
The movement led to programs such as the DBAE, in the United States of America, and the Critical Studies, in the United Kingdom.
da Universidade de São Paulo (University of São Paulo’s Ethnographic Museum), both in São Paulo.
SESC, Fundação Brasil 500 anos, Instituto Itaú, Unibanco, Banco do Brasil among other institutions.
deeper study of the traditional arts.
need to be open and receptive to international productions that express a genuine creative force.
audiovisual recordings the process of production and its products.
Castro Almeida (2000), developed in Campinas (SP)19.
in society. How can art contribute to reaching those goals?
towards the various forms that it adopt, depending on the school.
Education should settle on three lines.
producers, distributors and critical consumers.
moment, and what it tells us or told other readers in other historical and geographical contexts.
and development of skills are given the same attention.
To know more about the two first projects please go to http://cspace.unb.ca/idea.
of sharing the sensitive aspect and of giving meaning to art productions.
professionals that work in this area, not to mention the conflicts between parents and educators.
responsibility20 to attend this pressing necessity of educating for citizenship.
the construction of ethic values and citizenship?
that make the understanding and transformation of these realities possible.
constructing values, like respect for diversity and solidarity (Mason, 1999; Saccá, 1999).
popular art and the productions of mass culture21, not giving them distinctions in value.
of the students belong to these social classes.
The Delors Report for UNESCO (1996).
There is no intention, through this sequence, to establish a hierarchy of importance.
our daily lives images broadcast by the media sell products, form ideas and model behavior.
programs the critical reading of still and moving images present in the media.
constructive processes, can enlighten the work demanded for the exercise of those professions.
creating and critically appreciating artistic productions.
understand unless it is put in confrontation with other areas of knowledge.
participation of visual arts and other curricular subjects.
knowledge, it favors a critical and constructive appropriation of knowledge.
this is not the time or place to present them22.
they change from the condition of mere spectators to protagonists.
hour a week during the three grades of high school.
the teaching of visual arts in schools? Under what conditions could this happen?
– a two-year course that qualified teachers to teach only in secondary school.
Structure and Functioning of Teaching, etc.
a degree in the Visual Arts.
consist of just a small percentage of the entire course curriculum.
also all other areas of knowledge of the school curriculum.
in basic education. Mistaken conceptions and practices perpetuate in the school system.
valuation of the teaching career through better wages.
aid, which are necessary for the generalist teacher to teach art.
they will not only understand, but also intervene in their work realities.
Law of Directives and Foundations for the National Education n.5, 692.
art productions, through visits to galleries, museums and cultural centers is fundamental.
promote the transformations proposed by the PCNs.
We understand that the guiding of the educational process is always up to the teacher.
But the collaboration of the artists could be a way of bringing the school nearer to life in society.
education set aside funds for the remuneration of artists willing to collaborate with schools.
encaminhado à FAPESP. Campinas, 2000.
BRASIL. Secretaria de Educação Fundamental. Parâmetros curriculares nacionais: arte.
Secretaria de Educação Fundamental. Brasília: MEC/SEF, 1997 v. 6. Arte.
BRASIL. Ministério da Educação e do Desporto. Secretaria de Educação Fundamental.
Secretaria de Educação Fundamental. Brasília: MEC/SEF, 1998. v. 3: Conhecimento de mundo.
quarto ciclos: apresentação dos temas transversais. Secretaria de Educação Fundamental.
Tecnológica. Brasília: Ministério da Educação, 1999.
FORD, Raywen. Apreciação do artesanato e educação infantil. Pro-Posições, v. 10, n.3  nov.
MASON, Rachel. Arte educação multicultural e reforma global. Pro-Posições, v. 10, n.3  nov.
PILLAR, Analice Dutra; VIEIRA, Denyse. O vídeo e a metodologia triangular no ensino da arte.
Porto Alegre: Fundação Iochpe, 1992.
no Canadá. Pro-Posições, v. 10, n.3  nov. 1999, p.47-56.

matches: v. art17 v. v. v. v. v.


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ANACLETO O. VILLAHERMOSA, SR. AND JULETO D. VILLAHERMOSA, Complainants, v. VICTOR M. SARCIA, EXECUTIVE ASSISTANT IV AND EFREN R. RIVAMONTE, UTILITY WORKER, BOTH FROM THE COURT OF APPEALS, MANILA, Respondents.
Before this court is an administrative case involving employees of the Court of Appeals, Manila, who “transacted” with party–litigants with a pending case before the Court of Appeals.
After a careful review of the facts of the case and the arguments of the parties, we find the recommendation of the Office of the Court Administrator in order. Court personnel, regardless of position or rank, are expected to conduct themselves in accordance with the strict standards of integrity and morality. Indeed, the “special nature of [court personnel’s] duties and responsibilities” is recognized through the adoption of a separate Code of Conduct especially for them.39 The acts of court personnel reflect on the judiciary.40 Thus, it is necessary that they uphold the ideals of the judiciary.
In several cases, this court has held that the court personnel’s act of soliciting or receiving money from litigants constitutes grave misconduct.45 The sole act of receiving money from litigants, whatever the reason may be, is antithesis to being a court employee.
The Code of Conduct for Court Personnel46 requires that court personnel avoid conflicts of interest in performing official duties.47 It mandates that court personnel should not receive tips or other remunerations for assisting or attending to parties engaged in transactions or involved in actions or proceedings with the judiciary.48 “The Court has always stressed that all members of the judiciary should be free from any whiff of impropriety, not only with respect to their duties in the judicial branch but also to their behavior outside the court as private individuals, in order that the integrity and good name of the courts of justice shall be preserved.”49 Court personnel cannot take advantage of the vulnerability of party–litigants.
Grave misconduct merits dismissal.50 In some cases, the court exercised its discretion to assess mitigating circumstances such as length of service or the fact that a transgression might be the first offense of respondents. However, due to the gravity of the acts of respondents Sarcia and Rivamonte, no mitigating circumstances can be appreciated.
There is no defense in receiving money from party–litigants. The act itself makes court employees guilty of grave misconduct. They must bear the penalty of dismissal.
We note further the following admitted acts of respondent Sarcia, which merit on their own the penalty of dismissal.
Respondent Sarcia misrepresented himself as a lawyer and drafted pleadings for a party–litigant for a fee. The pleadings were filed in the same court where he is employed. Respondent Sarcia discussed with a party–litigant the latter’s case pending before the Court of Appeals. Worse, respondent Sarcia misrepresented to complainants Villahermosa the outcome of their case.
These acts of respondent Sarcia constitute dishonesty.
Complainants Villahermosa should have been told that court personnel cannot disclose information regarding a pending case, which is not yet public. However, respondent Sarcia did not do so and chose to lie and fabricate the outcome of a case. This, we cannot tolerate.
WHEREFORE, respondents Victor M. Sarcia and Efren R. Rivamonte are found GUILTY of GRAVE MISCONDUCT. Respondent Victor M. Sarcia is further found GUILTY of SERIOUS DISHONESTY. Respondents Sarcia and Rivamonte are DISMISSED FROM THE SERVICE with forfeiture of retirement benefits and perpetual disqualification from holding public office in any branch or instrumentality of the government, including government–owned or controlled corporations.
Let a copy of this decision be forwarded to the Department of Justice for the filing of the appropriate criminal action, if warranted.
Sereno, C.J., Carpio, Velasco, Jr., Leonardo–De Castro, Brion, Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr., Perez, Mendoza, Reyes, Perlas–Bernabe, and Leonen, JJ., concur.
2 Id. at 77. The case was docketed as CA–G.R. No. 105532 and was raffled to the Fourth Division.
14 Id. at 72, 86, 262.
31 Id. at 88, 98.
33 Id. at 99, 101.
39 CODE OF CONDUCT FOR COURT PERSONNEL, Fifth Whereas clause.
40Hidalgo v. Magtibay, 483 Phil. 186, 199 (2004) [Per Curiam, En Banc].
43 A.M. No. P–06–2225, November 23, 2010, 635 SCRA 701 [Per Curiam, En Banc].
45Office of the Court Administrator v. Diaz, 362 Phil. 580, 591 (1999) [Per J. Kapunan, First Division]; Narag v. Manio, A.M. No. P–08–2579, June 22, 2009, 590 SCRA 206, 211–212 [Per J. Corona, First Division]; Ramos v. Limeta, A.M. No. P–06–2225, November 23, 2010, 635 SCRA 701, 707 [Per Curiam, En Banc]; Canlas–Bartolome v. Manio, 564 Phil. 307, 313–314 (2007) [Per Curiam, En Banc]; Ong v. Manalabe, 489 Phil. 96, 105 (2005) [Per Curiam, En Banc].
47 CODE OF CONDUCT FOR COURT PERSONNEL, Canon III, sec. 1.
48 CODE OF CONDUCT FOR COURT PERSONNEL, Canon III, sec. 2 (b).
49 Anonymous Letter–Complaint against Atty. Miguel Morales, Clerk of Court, MTC, Manila, 592 Phil. 102, 118 (2008) [Per J. Austria–Martinez, En Banc] (Citation omitted).
50 REVISED RULES ON ADMINISTRATIVE CASES IN THE CIVIL SERVICE, Rule 10, sec. 46, par. A, 3.
51Sanga v. Alcantara, A.M. No. P–09–2657, January 25, 2010, 611 SCRA 1, 10 [Per Curiam, En Banc].
52Sabado, Jr. v. Jornada, A.M. No. P–07–2344, April 15, 2009, 585 SCRA 12, 17 [Per Curiam, En Banc].
54 Mallonga v. Manio, A.M. No. P–07–2298, April 24, 2009, 586 SCRA 335, 342 [Per J. Leonardo–De Castro, En Banc] (Citation omitted).

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The claimant was represented by Richard Kosinski, Esq., 106 Farmington Ave., New Britain, CT 06053.
The respondent was represented by Matthew Beizer, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the October 8, 1996 Finding and Award of the Commissioner acting for the Sixth District was heard May 23, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the October 8, 1996 Finding and Award of the Commissioner acting for the Sixth District. It argues on appeal that the trier erred by failing to allow it to cross-examine the claimant regarding a previous psychiatric hospitalization and by refusing to allow it to introduce medical evidence concerning his previous condition. Several other arguments have also been raised on appeal.1 As we agree in part with the respondent’s contention, we reverse the trier’s decision and remand this case for further proceedings.
The trial commissioner found that the claimant suffered an accepted left knee injury on March 29, 1977, resulting in a 25% loss of knee function as per a voluntary agreement approved on August 6, 1980. Along with the serious knee problems that the claimant had following the injury, he began to experience psychiatric symptoms as early as March 15, 1978. He has been hospitalized five times for depression secondary to injury and compensation issues, suicidal ideation, and post-traumatic stress disorder. The claimant began treating with Dr. Noonan for these problems in 1983. The respondent denied the compensability of the claimant’s psychiatric treatment after June 18, 1992, although it had been paying Dr. Noonan’s bills up to that point, and in fact paid for treatment and medication that Dr. Noonan prescribed subsequent to June 1992.
Dr. Noonan consistently stated in his reports that the claimant’s mental condition was caused by his 1977 knee injury. However, the claimant had a prior psychiatric history that was noted by Dr. Borden, who examined the claimant twice at the respondent’s request. Dr. Borden reported that the claimant grew up in a home with a physically and emotionally abusive father, and that he had long-standing psychiatric problems. In fact, he was hospitalized for a psychiatric condition in 1964 after his wife left him, and was in the hospital when his mother died in 1965—a loss from which he never recovered, according to Dr. Borden. Dr. Borden opined that the claimant’s complicated psychiatric problems predated 1977, and were compounded in recent years by illnesses and deaths in his family. He did not think that the claimant’s psychiatric problems were linked to his 1977 work injury.
The commissioner found that Dr. Borden’s opinion was less persuasive than Dr. Noonan’s, and concluded that the psychiatric injury was causally attributable to the knee injury. He also ruled that the respondent was estopped from denying compensability because it had made extensive payments to several medical providers on the psychiatric injury. He ordered the respondent to pay all outstanding bills, compensation benefits and COLAs, as well as attorney’s fees for unreasonable contest. The respondent filed an appeal from that decision.
There is no dispute that the claimant was hospitalized for psychiatric reasons during the mid-1960’s. During the formal hearing on July 13, 1994, counsel for the respondent requested that the claimant provide a medical release for documents generated during his hospitalization from 1964 to 1967. The claimant, who appeared pro se at that hearing, objected that those records were irrelevant. The commissioner denied the request because he thought that this matter should have been addressed before the formal hearings began. He also noted that the respondent was aware of the hospitalization, and offered to give it an opportunity to secure those records by way of a subpoena duces tecum. Transcript, 4-5.
The respondent immediately filed subpoenas duces tecum with both of the hospitals that the claimant had visited. The respondent argued that the claimant had put his psychiatric condition and its etiology at issue, and that justice required disclosure of his past psychiatric history. The claimant, now represented by an attorney, filed an objection to the motion for disclosure on the grounds that there is no nonconsensual disclosure provision for an administrative proceeding, and that the records in question pertain to a condition too remote in time to be relevant now. The trier issued a decision2 on November 13, 1995 in which he noted that the respondent had obtained opinions from two psychiatrists stating that the claimant’s psychiatric condition was not causally related to his 1977 compensable knee injury. However, the trier ruled that the interests of justice did not require the production of the subpoenaed records given their remoteness, the history of the claim, and the allegations and medical opinions introduced by the parties regarding the etiology of the psychiatric condition. At a formal hearing on April 3, 1996, the trier also sustained the claimant’s objection to the respondent’s attempt to question him regarding his mid-1960’s psychiatric hospitalization. See Transcript, 16-21.
We interpret the term “civil proceedings” to include the proceedings of the Workers’ Compensation Commission in this situation. The fact-finding responsibilities in any workers’ compensation case belong to the trial commissioner rather than to a Superior Court judge, and the maintenance of an action under the Workers’ Compensation Act is a direct substitute for the potential civil liability that is removed by § 31-284 C.G.S. See Harris v. UTC/Pratt & Whitney, 15 Conn. Workers’ Comp. Rev. Op. 357, 360-61, 3143 CRB-5-95-8 (June 26, 1996). The broad general authority of the commissioner to go beyond the scope of the statutory and common-law rules of evidence pursuant to § 31-298 further favors the application of § 52-146f(5) to workers’ compensation proceedings. Thus, the trier has the discretion to admit psychiatric records where the claimant raises his mental condition as part of a claim and where the trier finds that the interests of justice favor the disclosure of those communications. See Lee v. ABB Combustion Engineering, 14 Conn. Workers’ Comp. Rev. Op. 157, 159-60, 2134 CRB-1-94-8 (June 27, 1995) (psychologists’ records subject to same standard under § 52-146c(b)).
In this case, the trier specifically indicated that he would allow the state to obtain the claimant’s psychiatric hospitalization records via subpoena duces tecum. July 13, 1994 Transcript, 5-6. Implicit was the notion that he would review those records in determining whether justice favored their admission into evidence. Though he used the phrase “interests of justice” in his written ruling, there is no dispute that the trier did not actually look at the psychiatric records to determine whether they should remain privileged. Instead, he simply stated that the history of the claim, the facts alleged by the parties, and the remoteness of the records were enough to ensure their irrelevance.
The remoteness of an event is certainly a valid ground for declaring it irrelevant to a subsequent injury. However, where a trier agrees to allow a party to subpoena records, he should not rely solely on the length of time that has passed between events in excluding those records from evidence without reviewing the records first. Here, both Drs. Noonan and Borden suggested that these records could be important in making a diagnosis. Although Dr. Borden had questioned the claimant regarding his psychiatric history before issuing his medical opinion, the respondent thought that it was important for the trier to personally familiarize himself with the details of the claimant’s past hospitalizations. April 3, 1996 Transcript, 20-21. We do not believe that he should have ruled on the subpoena without first conducting an in camera inspection of the records to determine their relevance. If, after inspecting them, the commissioner continued to deem the records too remote in time to be relevant, then it would have been proper for him to exclude them from evidence. However, the respondent should have been given a more meaningful opportunity to demonstrate the utility of those records in this matter.
The trier’s decision is thus reversed, and the case remanded so that the trier may review the records sought to be subpoenaed before making a ruling on their admissibility. All other issues on appeal are moot in light of our decision on the subpoena duces tecum.


This matter was initiated by a complaint filed under title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12181-12189, with the United States Department of Justice ("Department") against Kent and Debra Phillips ("Owner/Operator"), the owners and operators of the Log Cabin Restaurant ("Restaurant"), located at 10058 Highway 72, Loudon, Tennessee. The complainant, an individual with a disability, alleges that on September 4, 2002, he was told to leave the Restaurant because he was accompanied by a service animal.
The ADA requires that public accommodations make reasonable modifications in policies, practices, and procedures to permit the use of service animals by people with disabilities. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302(c).
The Owner/Operator agrees to modify its policies and practices, as outlined in this Settlement Agreement ("Agreement"), to ensure that individuals who use service animals have an opportunity to use the services provided by the Restaurant that is equal to that of others.
The Restaurant is an establishment serving food or drink and, as such, is a place of public accommodation. 42 U.S.C. § 12181(7)(B); 28 C.F.R. § 36.104. Kent and Debra Phillips own and operate the Restaurant and, as such, are a public accommodation covered by title III of the ADA. 28 C.F.R. § 36.104.
The Attorney General is authorized under section 308 of the ADA, 42 U.S.C. § 12188, to investigate complaints and bring a civil action under title III in any situation where a pattern or practice of discrimination is believed to exist or where a matter of general public importance is raised.
The parties to the Agreement are the Department and the Owner/Operator of the Restaurant. In light of this Agreement, the parties have determined that Department of Justice complaint 202-70-32 can be resolved without litigation and have prepared and agreed to the terms of this Settlement Agreement.
In consideration of the terms of this Agreement, the Attorney General agrees to refrain from undertaking further investigation or filing a civil suit in this matter regarding the areas covered under the Remedial Action section of this Agreement, except as provided in the Enforcement and Implementation sections of the Agreement.
The Owner/Operator shall adopt and distribute to all Restaurant employees the Log Cabin Restaurant Policy Regarding Service Animals for Customers with Disabilities (attached hereto as Exhibit B). The Owner/Operator shall train the Restaurant's current employees as to their obligations under the ADA with respect to service animals so as to ensure that persons with disabilities accompanied by service animals have access to its Restaurant equal to persons without disabilities. Furthermore, during the life of the Agreement, employees hired by the Owner/Operator to work at the Restaurant shall be trained and informed of the Restaurant's service animal policy within 24 hours of hire.
The Owner/Operator, within sixty (60) days of the effective date of this Agreement, shall submit a written report with photographs to the Department outlining its compliance with Paragraph 9, above.
If at any time the Owner/Operator desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the Department in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification. Until there is written Agreement by the Department to the proposed modification, the proposed modification will not take effect. These actions must receive the prior written approval of the Department, which approval shall not be unreasonably withheld or delayed.
The Department may review compliance with this Agreement at any time. If the Department believes that the Owner/Operator has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department for a modification of the relevant terms, the Department will so notify the Owner/Operator in writing and it will attempt to resolve the issue or issues in good faith. If the Department is unable to reach a satisfactory resolution of the issue or issues raised within thirty (30) days of the date it provides notice to the Owner/Operator, it may institute a civil action in federal district court to enforce the terms of this Agreement or title III and may, in such action, seek any relief available under law.
For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the Owner/Operator to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written Agreement with the Department for an extension of the relevant time frame imposed by the Agreement.
Failure by the Department to enforce this entire Agreement or any of its provisions or deadlines shall not be construed as a waiver of the Department's right to enforce other deadlines and provisions of this Agreement.
This Agreement shall be binding on the Owner/Operator, its agents and employees. In the event the Owner/Operator seeks to transfer or assign all or part of its interest in any facility covered by this Agreement, and the successor or assignee intends on carrying on the same or similar use of the facility, as a condition of sale the Owner/Operator shall obtain the written accession of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.
This Agreement, including Exhibits A and B, constitutes the entire Agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement, will be enforceable under its provisions.
This Agreement does not affect the Owner/Operator's continuing responsibility to comply with all aspects of title III of the ADA. In particular, title III imposes an obligation to make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, and facilities to individuals with disabilities. This obligation must be continuously re-visited, particularly where the financial resources available to a public accommodation may improve over time.
A copy of this document or any information contained in it will be made available to any person by the Owner/Operator or the Department upon request.
This Agreement will remain in effect for two (2) years from the effective date of this Agreement.
The person signing this document for the Owner/Operator represents that he/she is authorized to bind the Owner/Operator to this Agreement.
In compliance with the Americans with Disabilities Act (ADA), the Log Cabin Restaurant is committed to permitting the use of service animals by its customers with disabilities. Service animals play an important role in ensuring the independence of people with disabilities, and it is therefore our policy to welcome any animal that is individually trained to assist a person with a disability into our restaurant.
Service animals are trained to provide assistance to persons with disabilities. Service animals, which are often but not always dogs, come in all breeds and sizes. They may be trained either by an organization or by an individual with a disability, need not be certified or licensed, and provide a wide range of services that may or may not be identifiable, including but not limited to: (1) assisting persons with mobility impairments by balancing, carrying, and recovering dropped or mislaid belongings, as well as other functions; (2) assisting people with hearing impairments by alerting them to sounds, obstacles, and the presence of others; (3) assisting people with vision impairments by alerting them to danger, guiding them, and performing other related functions; and (4) assisting people susceptible to seizures by alerting them to the onset of a seizure, cushioning their fall, reviving them, keeping other people at a safe distance, and mitigating any possible injury.
If you are not certain that an animal is a service animal, you may ask the person who has the animal if it is a service animal required because of a disability. However, you must not ask a customer with a disability for proof of his or her disability, nor may you require proof or certification of the animal's training or vaccination. Service animals do not always have a sign or symbol indicating they are service animals. The Log Cabin Restaurant does not require its customers with service animals to pay any surcharge or deposit.
In the event that a particular service animal's behavior poses a direct threat to the health or safety of others, the Log Cabin Restaurant has the right to exclude the animal from its facility at that time, but may not refuse service to that individual with a disability when he or she is not accompanied by a service animal. Moreover, the Log Cabin Restaurant will not exclude a particular animal based on past experience with other animals. Each situation will be considered individually.
Please handle any customer inquiries or complaints about this policy in accordance with our usual procedures by contacting one of the owners of the Log Cabin Restaurant, Kent Phillips or Debra Phillips.