text:
WE take the protection of your personal data very seriously!
The use of the data you disclose to the BERICAP Companies is mainly governed by the General Data Protection Regulation (GDPR, EU-Regulation) and the German Federal Data Protection Act (BDSG). Under the GDPR the processing (i.e. collection, recording, storage) is permitted per Art. 6 GDPR if the person, of whom the data is collected, has given consent or if the processing is necessary for the performance of a contract to which the person is party or in order to take steps at the request of the party prior to entering into a contract or if processing is necessary for the purposes of the legitimate interests of BERICAP, except where such interests are overridden by YOUR interests or fundamental rights and freedoms, which require protection.
Cookies and web beacons on the BERICAP Website cannot be used to run programs or deliver viruses to your computer. They are uniquely assigned to you, and can only be read by a web server in the domain that issued the cookie or web beacon to you and will solely be used for the purpose of call control/recognition in the event of the repeated use of the homepage. The BERICAP Website does not match your personally identifiable information with the cookie or web beacon assigned to you.
We will not share or sell non-aggregated information contained within cookies or web beacons with any third party. You have the ability to accept or decline cookies or web beacons. Furthermore, you can effectively disable them by setting your browser to restrict or block cookies. However, please note that if cookies and web beacons are disabled, you may not be able to use the full range of services or features of the BERICAP website.
Please note that data may be saved for security purposes and can possibly enable identification (e.g. IP address, date, time and pages viewed). We may evaluate this data to learn more about the use of the BERICAP Website and to generate statistics, and we reserve the right to do so. If we generate user profiles, we will only do so by using pseudonyms. User profiles will not be matched with the data of the bearer of the pseudonym. You have, at any time, the right to revoke this right by sending an e-mail to Datenschutz.germany@bericap.com or using the contact form on our website.
This website uses Google Analytics, a web analytics service provided by Google, Inc. (“Google”). Google Analytics uses “cookies”, which are text files placed on your computer, to help the website analyze how users use the site. The information generated by the cookie about your use of the website will be transmitted to and stored by Google on servers in the United States. Because of the Privacy Shield Agreement, your data will be protected in the US to the same extent as in the EU.
As an alternative to the browser Add-on or within browsers on mobile devices, you can click this link in order to opt-out from being tracked by Google Analytics within this website in the future (the opt-out applies only for the browser in which you set it and within this domain). An opt-out cookie will be stored on your device, which means that you'll have to click this link again, if you delete your cookies.
You have, at any time, the right to revoke these rights by sending an e-mail to Datenschutz.germany@bericap.com or using the contact form on our website.
When you request information on employment opportunities, you will need to provide the BERICAP Companies, or any of them, with your e-mail address so that your request can be processed. You may also choose to provide additional information, such as your address and your telephone number. As a matter of course, your personal data provided to us in this regard will only be used for said purpose.
Any information provided by you if you choose to contact us through the BERICAP Website, which is administered by BERICAP Holding GmbH, will be used solely to process your request and to respond to your inquiries.
You may also submit job applications via the BERICAP Website. Any such submissions will be secure. When submitting a job application you are required to provide certain information, including your name and telephone number. However, other information, such as your social security number, may be provided at your discretion, as indicated on the employment application which may be accessed through the BERICAP Website. We will only use the information you provide to assess your qualifications for any current and future employment opportunities with the BERICAP Companies. Your information is kept on file and may be assessed by BERICAP Companies' human resources personnel. Your information will not be submitted to third parties or parties outside of the BERICAP Companies without your permission, except as provided below. You have, at any time, the right to revoke your consent to use the data in the future by sending an e-mail to Datenschutz.germany@bericap.com or using the contact form on our website.
On this website you have the option to subscribe to our free newsletter. For the registration we only need your e-mail address. Immediately after sending the registration form you will receive a confirmation via e-mail. The registration will only become effective by clicking the link in this confirmation e-mail. By approving your registration, you consent to agreeing with the indicated processing of your e-mail address. You can unsubscribe at any time. Please use the unsubscribe link at the end of each e-mail. Your e-mail address will be directly deleted from the mailing list. You do not have to give us your name, your title, your country and your company but of course you may do so. In case you disclose this information we will use them to address you personally and to provide the newsletter in your language. The declaration of your company is for our information only.
We reserve the right to transfer any information we have about you in the event we sell or transfer all of our business. However, such data will continue to be subject to the previously existing privacy policies.
We will not hold YOUR personal data on our systems for any longer than is necessary for us to meet the purpose of holding that information. When the purpose of holding that information is no longer necessary your personal data will be deleted, respectively blocked where further storage is necessary due to retention periods required under law, articles of association or contract.
You have at any time the right to veto the processing of your data.
You have, at any time, the right to revoke or partly revoke your consent to use YOUR data by sending an e-mail to Datenschutz.germany@bericap.com or using the contact form on our website.
You have a right to information with respect to YOUR personal data held by us, together with the right to correction or deletion of any incorrect data. Furthermore you can block the processing of YOUR data if you feel that YOUR data is incorrect, or our use of YOUR data is incorrect, or if you feel that we do not need to use YOUR data any longer or as long as your veto is dealt with.
Furthermore you can request the transfer of YOUR data to somebody else if technically possible.
If you would like to request information regarding YOUR personal data or would like us to correct or delete such data, or if you have any other questions regarding the use of YOUR personal data, please contact us by sending an e-mail to Datenschutz.germany@bericap.com or using the contact form on our website.
Please note that you have the right to request, respectively obtain a copy of the personal data that we hold about you.
The BERICAP website may provide links to other websites for your convenience and information. This includes the links to social media sites like, but not limited to, Facebook, Youtube, Youku and LinkedIn. All of these sites operate independently and are not under our control. These sites may have their own privacy policies in place, which we strongly suggest you review if you visit any linked websites. We are not responsible for the content of these sites, any products or services that may be offered through these sites, or any other use of these sites. We reserve the right to terminate any link at any time, and the inclusion of any link does not constitute or imply an endorsement, authorization, sponsorship or affiliation by or between us and the linked website, or any of the products or services provided therein. If you access any of the websites linked to the BERICAP Website, you do so entirely at your own risk.
With going to one of these sites via our website, you will create a connection between our website and the corresponding server. That way, the social media site will receive the information, that you have visited our website before. If you are logged into your corresponding account at the same time, the social media site has the possibility to understand your behavior. If you want to avoid this, please log out before.
UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL THE BERICAP COMPANIES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, CONTRACTORS, AFFILIATES, OR OTHER REPRESENTATIVES BE LIABLE FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO INCIDENTAL, DIRECT, INDIRECT OR CONSEQUENTIAL, AS WELL AS PUNITIVE DAMAGES AND LOST PROFITS, THAT RESULT FROM THE USE OF THE INFORMATION OR MATERIALS ON THE BERICAP WEBSITE, EVEN IF THE ADMINISTRATOR OF THE BERICAP WEBSITE OR AN AUTHORIZED REPRESENTATIVE OF ANY BERICAP COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Herewith we inform you according to Artt. 13, 14 and 21 DSGVO on the processing of your personal data by us and your rights and claims under the data protection regulations.
Which data are processed in detail and in which way they are used depends largely on the requested or agreed services.
We process personal data that we receive from you as part of our business relationship.
In addition, we process - as far as necessary for the provision of our service - personal data that we have legitimately received from other companies or other third parties in a permissible manner (e.g. to execute orders, to fulfill contracts or on the basis of a consent you have given).
On the other hand, we process personal data that we have legitimately gained and may process from publicly available sources (eg debtor directories, land registers, trade and association registers, press, media).
Order data (for example delivery order).
Data from the fulfillment of our contractual obligations (for example, sales data, credit lines, product data).
Contract and documentation data (for example business letters).
Payment data (e.g., account number, bank details).
Communication data (e.g., telephone number, e-mail address).
Data about your use of our offered telemedia (for example, when we call our websites, apps or newsletters, clicked pages of us or entries).
Other data comparable to the above categories.
3. What do we process your data for (purpose of processing) and on which legal basis?
The processing of personal data (Art. 4 No. 2 DS-BER) is performed for the provision of services and delivery of goods, in particular for the execution of our contracts with you and the execution of your orders, as well as all activities necessary for the operation and administration of a company.
The purposes of the data processing depend primarily on the specific products or services.
Further details on the purpose of data processing can be found in the respective contract documents and terms and conditions.
Video surveillance to collect evidence of crime. They serve the protection of customers and employees.
Measures for the business control and further development of services and products.
Insofar as you have given us consent to the processing of personal data for specific purposes (eg disclosure of data to third parties, evaluation of data for marketing purposes), the legality of this processing is based on your consent. A given consent can be revoked at any time.
Please note that the revocation only works for the future. Processing that occurred before the revocation is not affected.
In addition, we are subject to various legal obligations, ie legal requirements (eg commercial law, tax laws, etc.). As far as data is processed in this regard, this is done exclusively on the basis of these requirements.
4. Who gets your data?
Within the company, those entities receive the data they need to fulfill our contractual and legal obligations. Our processors (Art. 28 DS-GVO) can also receive data for these purposes. These are companies in the categories IT Services, Logistics, Printing Services, Telecommunications, Debt Collection, Consulting and Consulting as well as Sales and Marketing and Address Recognition.
Public bodies and institutions (eg public prosecutor, police, supervisory authorities) in the presence of a legal or regulatory obligation.
Other companies to whom we provide personally identifiable information (depending on the contract: eg banks, credit bureaus, business partners, sales representatives).
5. How long will your data be stored?
If necessary, we process and store your personal data for the duration of our business relationship, which includes, for example, the initiation and execution of a contract or for the fulfillment of the contractual purpose.
In addition, we are subject to various storage and documentation obligations, which result, inter alia, from the German Commercial Code (HGB) and the Tax Code (AO). The deadlines for storage and documentation are two to ten years.
Finally, the storage period is also determined by the statutory limitation periods, which can be, for example, according to §§ 195 ff. Of the Civil Code (BGB) usually three years, in some cases, but also up to thirty years.
A transfer of data to third countries (states outside the European Economic Area - EEA) only takes place, if this is necessary for the execution of your orders, is required by law or you have given us your consent. Details will be provided to you separately, if required by law.
Each data subject has the right to rectification to Art. 15 GDPR, the right to a correction under Art. 16 GDPR, the right to cancellation under Art. 17 GDPR, the right of erasure according to Art. 18 GDPR and the right to data portability under Art. 20 GDPR. With regard to the right to information and the right to erase, the restrictions under §§ 34 and 35 BDSG apply. In addition, there is a right of appeal to a data protection supervisory authority (Article 77 GDPR in conjunction with § 19 BDSG).
8. Is there a duty for you to provide data?
As part of our business relationship, you only need to provide the personal information that is required to establish, conduct and terminate a business relationship or that we are required to collect by law. Without this data, we will generally have to refuse to conclude the contract or to execute the order or to be unable to complete an existing contract and possibly terminate it.
In principle, we do not use fully automated decision-making pursuant to Art. 22 GDPR to justify and implement the business relationship. If we use these procedures in individual cases, we will inform you about this separately, if this is required by law.
10. To what extent is your data used for profiling (scoring)?
You have the right at any time, for reasons arising out of your particular situation, to prevent the processing of personal data relating to you which, pursuant to Article 6 (1) lit. e) GDPR (Data Processing in the Public Interest) and Article 6 (1) lit. f) the General Data Protection Regulation (data processing on the basis of a balance of interests) takes place, objecting; this also applies to a profiling based on this provision within the meaning of Article 4 No. 4 GDPR.
If you object, we will no longer process your personal information unless we can demonstrate compelling legitimate grounds for processing that outweigh your interests, rights and freedoms, or serve to assert, exercise or defend legal claims.
If you object to the processing for direct marketing purposes, we will no longer process your personal data for these purposes.
Should difficulties of interpretation arise, the German text of this bilingual information shall be binding.
hiermit informieren wir Sie gem. Artt. 13, 14 und 21 DSGVO über die Verarbeitung Ihrer personenbezogenen Daten durch uns und die Ihnen nach den datenschutzrechtlichen Regelungen zustehenden Ansprüche und Rechte.
Welche Daten im Einzelnen verarbeitet werden und in welcher Weise sie genutzt werden, richtet sich maßgeblich nach den beantragten bzw. vereinbarten Dienstleistungen.
Zudem verarbeiten wir - soweit für die Erbringung unserer Dienstleistung erforderlich - personenbezogene Daten, die wir von anderen Unternehmen oder von sonstigen Dritten zulässigerweise (z. B. zur Ausführung von Aufträgen, zur Erfüllung von Verträgen oder aufgrund einer von Ihnen erteilten Einwilligung) erhalten haben.
Daten aus der Erfüllung unserer vertraglichen Verpflichtungen (z.B. Umsatzdaten, Kreditrahmen, Produktdaten).
Vertrags- und Dokumentationsdaten (z.B. Geschäftsbriefe).
Daten über Ihre Nutzung von unseren angebotenen Telemedien (z.B. Zeitpunkt des Aufrufs unserer Webseiten, Apps oder Newsletter, angeklickte Seiten von uns bzw. Einträge).
Andere mit den genannten Kategorien vergleichbare Daten.
Die Verarbeitung personen-bezogener Daten (Art. 4 Nr. 2 DSGVO) erfolgt zur Erbringung von Dienstleistungen und Lieferung von Waren, insbesondere zur Durchführung unserer Verträge mit Ihnen und der Ausführung Ihrer Aufträge, sowie aller mit dem Betrieb und der Verwaltung eines Unternehmens erforderlichen Tätigkeiten.
Die Zwecke der Datenverarbeitung richten sich in erster Linie nach dem konkreten Produkten oder Dienstleistungen.
Videoüberwachungen zur Sammlung von Beweismitteln bei Straftaten. Sie dienen damit dem Schutz von Kundschaft und Mitarbeitern.
Zudem unterliegen wir diversen rechtlichen Verpflichtungen, das heißt gesetzlichen Anforderungen (z. B. Handelsrecht, Steuergesetze, etc.). Soweit diesbezüglich Daten verarbeitet werden, geschieht dies ausschließlich auf Grundlage dieser Vorschriften.
Öffentliche Stellen und Institutionen (z. B. Staatsanwaltschaft, Polizei, Aufsichtsbehörden) bei Vorliegen einer gesetzlichen oder behördlichen Verpflichtung.
Sie haben das Recht, aus Gründen, die sich aus Ihrer besonderen Situation ergeben, jederzeit gegen die Verarbeitung Sie betreffender personenbezogener Daten, die aufgrund von Artikel 6 Absatz 1 lit. e) DSGVO (Datenverarbeitung im öffentlichen Interesse) und Artikel 6 Absatz 1 lit. f) der Datenschutz-Grundverordnung (Datenverarbeitung auf der Grundlage einer Interessenabwägung) erfolgt, Widerspruch einzulegen; dies gilt auch für ein auf diese Bestimmung gestütztes Profiling im Sinne von Artikel 4 Nr. 4 DS-GVO.
Bei Auslegungsschwierigkeiten soll der deutsche Text dieser Information der maßgebende sein.
We process personal data that we receive from you within the scope of your Internet or social media use or that you have transmitted to us via the contact form.
In addition, we process personal data that we have legitimately received from other companies or from other third parties (see data protection declaration).
Relevant personal data are IP address and data about your use of our offered telemedia (e.g. time of calling up our websites or newsletters, pages clicked on by us or entries) as well as other data comparable with the categories mentioned.
Measures for business control and further development of services and products.
Insofar as you have given us consent to the processing of personal data for specific purposes (e.g. passing on data to third parties, evaluation of data for marketing purposes), the legality of this processing is based on your consent. A given consent can be revoked at any time.
Within the company, those entities receive the data they need to fulfill our contractual and legal obligations. Our processors (Art. 28 DS-GVO) can also receive data for these purposes. These are companies in the categories IT Services, Telecommunications, Consulting and Consulting as well as Sales and Marketing.
With regard to the transfer of data to recipients outside the company, it should be noted that we only pass on your data if legal provisions permit or require it, if you have given your consent or if we are authorized to provide information. Under these conditions, recipients of personal data may, for.
Public bodies and institutions (e.g. public prosecutor, police, supervisory authorities) in the presence of a legal or regulatory obligation.
To the extent permitted by law, we process and store your personal data, in particular as long as this is necessary to fulfil the respective purposes.
Data will only be transmitted to third countries (countries outside the European Economic Area (EEA)) if this is required for the execution of our telemedia or social media offers (see data protection declaration), if this is required by law or if you have given us your consent. We will inform you separately about details, if required by law.
When using the Internet or social media, you only need to provide those personal data which are necessary for the use or which we are legally obliged to collect. Without this data, meaningful use may be limited or impossible.
A fully automated decision making according to Art. 22 DS-GMO does not take place. Should we use these procedures in individual cases, we will inform you separately, insofar as this is required by law.
Wir verarbeiten personenbezogene Daten, die wir im Rahmen Ihrer Internet bzw. Social-Media-Nutzung von Ihnen erhalten bzw. die Sie über das Kontaktformular an uns übermittelt haben.
Zudem verarbeiten wir personenbezogene Daten, die wir von anderen Unternehmen oder von sonstigen Dritten zulässigerweise erhalten haben (s. Datenschutzerklärung).
Relevante personenbezogene Daten sind IP-Adresse und Daten über Ihre Nutzung von unseren angebotenen Telemedien (z.B. Zeitpunkt des Aufrufs unserer Webseiten oder Newsletter, angeklickte Seiten von uns bzw. Einträge) sowie andere mit den genannten Kategorien vergleichbare Daten sein.
Innerhalb des Unternehmens erhalten diejenigen Stellen ihre Daten, die diese zur Erfüllung unserer vertraglichen und gesetzlichen Pflichten brauchen. Auch von uns eingesetzte Auftragsverarbeiter (Art. 28 DS-GVO) können zu diesen genannten Zwecken Daten erhalten. Dies sind Unternehmen in den Kategorien IT-Dienstleistungen, Telekommunikation, Beratung und Consulting sowie Vertrieb und Marketing.
Soweit gesetzlich zulässig verarbeiten und speichern wir Ihre personenbezogenen Daten, insbesondere solange dies zur Erfüllung der jeweiligen Zwecke erforderlich ist.
Eine Datenübermittlung in Drittstaaten (Staaten außerhalb des Europäischen Wirtschaftsraums - EWR) findet nur statt, soweit dies zur Ausführung unserer Telemedien- oder Social-Media-Angebote (s. Datenschutzerklärung) erforderlich, gesetzlich vorgeschrieben ist oder Sie uns Ihre Einwilligung erteilt haben. Über Einzelheiten werden wir Sie, sofern gesetzlich vorgegeben, gesondert informieren.
Im Rahmen der Internet- bzw. Social-Media-Nutzung müssen Sie nur diejenigen personenbezogenen Daten bereitstellen, die für die Nutzung erforderlich sind oder zu deren Erhebung wir gesetzlich verpflichtet sind. Ohne diese Daten kann eine sinnvolle Nutzung eingeschränkt oder unmöglich sein.
Eine vollautomatisierte Entscheidungsfindung gemäß Art. 22 DS-GVO findet nicht statt. Sollten wir diese Verfahren in Einzelfällen einsetzen, werden wir Sie hierüber gesondert informieren, sofern dies gesetzlich vorgegeben ist.

matches:
Art. 6
Art. 15
Art. 16
Art. 17
Art. 18
Art. 20
§ 19
Art. 22
Art. 22
Art. 22


The U.S. Supreme Court returned alternative dispute resolution to its docket Tuesday when it granted a certiorari petition in a case that is expected to decide whether to limit parties’ ability to contract for expanded judicial review of an arbitration decision.
The argument this fall in Hall Street Associates LLC v. Mattel Inc., No. 06-989, a case emanating from the Ninth U.S. Circuit Court of Appeals, should settle a split among federal circuit courts.
The case has a long ADR and litigation history. Last year, the Ninth Circuit declined to rehear the case in front of the full court, rejecting an en banc appeal request. The appeals court let stand an August 2006, Ninth Circuit panel decision that reinstated an arbitration award in Mattel’s favor.
The result was that Mattel is not responsible for indemnifying the costs of a toxic waste cleanup on Supreme Court petitioner Hall Street Associates’ property, which the toymaker leased.
In an unusual move, the Court decided to review Ninth Circuit decisions that have not been published.
Taking the case may signal the Court’s direction. The Ninth Circuit is home to a notorious expanded review matter involving opinions over the course of nearly a decade and an award that, with interest, swelled to more than half a billion dollars. In Kyocera v. Prudential-Bache Trade Services Inc., 341 F.3d 987 (9th Cir. 2003), the Ninth Circuit, in an en banc decision, held that parties can’t expand the basis for a court to review an arbitration award beyond the Federal Arbitration Act limits.
The U.S. Supreme Court declined to hear Kyocera, 540 U.S. 1098 (2004). But Hall Street Associates gives it a chance to bring Kyocera, and the circuit courts that have followed it, in line with five circuit courts that permit parties to contract for expanded review.
At the same time, Kyocera’s strict construction view–allowing awards to be overturned based only on FAA Section 10 and 11 standards on vacating and modifying awards for, for example, fraud or evident partiality by the tribunal–could win out over party-contracting principles at the conservative Court. The same day the Court agreed to hear Hall Street Associates, it told plaintiffs that needed to strictly adhere to a 180-day Equal Employment Opportunity Commission filing rule in a pay discrimination case, forcing employees to file claims as soon as their pay was changed, rather than allowing later pay dates to act as continuing violations for later-discovered discrimination. See Ledbetter v. Goodyear Tire & Rubber Co. Inc., No. 05-1074 (May 29, 2007)(available at http://www.supremecourtus.gov/opinions/06pdf/05-1074.pdf).
other federal Courts of Appeals, that the Federal Arbitration Act (“FAA”) precludes a federal court from enforcing the parties’ clearly expressed agreement providing for more expansive judicial review of an arbitration award than the narrow standard of review otherwise provided for in the FAA?
There are plenty of interesting facts and circumstances surrounding the case. First, it was tried in federal district court on Mattel’s lease termination. Then, the full case was mediated, unsuccessfully.
The parties told the district court that they had decided to arbitrate the case, even though there was no existing arbitration provision.
The Scotusblog, which covers U.S. Supreme Court doings, posted the cert petition here: http://www.scotusblog.com/movabletype/archives/06-989.pdf.
The arbitrator’s January 2002, award recognized that Mattel broadly indemnified Hall Street Associates, and noted that the toymaker’s “only exception” to the obligation was if it was in compliance with environmental laws and didn’t contribute to the hazardous waste condition.
In fact, the entire Hall Street Associates cleanup controversy goes back more than half a century, when Mattel’s predecessor on the Beaverton, Ore., land manufactured View-Master, a “stereo” image toy that allowed users to see pictures in 3-D. The View-Master company used solvent trichloroethylene to clean equipment. TCE was later discovered to be carcinogenic. Thousands of workers were exposed to the chemical, which had infiltrated a well on the site.
Still, the arbitrator concluded that Mattel’s failure to test the site’s well water didn’t violate “applicable” environmental laws. Specifically, the arbitrator noted that Mattel had violated the Oregon Drinking Water Quality Act, but found that the act was health law, and not directed at protecting landowners.
As a result, the arbitrator found that Mattel qualified for the contractual exception to the indemnification requirements.
The arbitrator, on remand, found that Mattel violated an applicable law, the exception didn’t apply, and Mattel was liable to indemnify Hall Street Associates. An award totaling more than $810,000, which included declaratory relief against Mattel for future cleanup costs, was confirmed by the district court.
Both sides appealed, arguing over the effects of Kyocera.
The circuit court ordered the lower court to confirm, unless it found FAA standards to overturn the arbitrator’s decision. The district court found that under 9 U.S.C. § 10, the arbitrator exceeded his power by issuing an “implausible” contract interpretation.
Although the arbitrator's assessment of the merits in this case contains possible errors of law, those errors are not a sufficient basis for a federal court to overrule an arbitration award. See Employers Ins. of Wausau v. Nat'l Union Fire Ins. Co. of Pittsburgh, 933 F.2d 1481, 1486 (9th Cir.1991) ("We may not predicate reversal on . . . erroneous findings of fact or conclusions of law."); see also Hawaii Teamsters and Allied Workers Union, Local 996 v. United Parcel Serv., 241 F.3d 1177, 1181 (9th Cir.2001) ("Our task is, in essence, to review the procedural soundness of the arbitral decision, not its substantive merit.").
Furthermore, it cannot be said that the arbitrator's decision in this case is "completely irrational."
See Kyocera Corp. v. Prudential-Bache Trade Servs. Inc., 341 F.3d 987, 997 (9th Cir.2003) (en banc)(construing 9 U.S.C. § 10(a)(4), the only subsection of either 9 U.S.C. §§ 10 or 11 that could conceivably apply to the arbitration award in this case). Thus, we remand the case to the district court with instructions to enforce the original arbitration award and declare Mattel the prevailing party. The district court's award of attorneys' fees in favor of Hall Street is also reversed and the district court should determine the attorneys' fees and costs due to Mattel under the arbitration agreement.
Graber’s dissent can be found here: http://www.ca9.uscourts.gov/coa/memdispo.nsf/pdfview/080106/$File/05-35721d.PDF.
The Ninth Circuit denied en banc review last October, but the Supreme Court agreed to hear the case on May 29.
An argument date hasn’t been set yet. It will be two terms since the Court last heard an arbitration case. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006)(available at http://www.supremecourtus.gov/opinions/05pdf/04-1264.pdf), which was argued on Nov. 29, 2005, held that a challenge to the validity of a contract as a whole, and not specifically to an arbitration clause in the contract, must go to the arbitrator, not the court.


text:
Evans v. State, 690 S.W.2d 112 (Tex.App. – EI Paso 1985, pet. ref’d).
No entrapment where defendant is allowed to drive to station by police and subsequently stopped again and arrested for DWI.
Shafer v. State, 919 S.W.2d 885 (Tex.App.-Fort Worth 1996, pet. ref’d).
Trial court properly refused to give “justification” instruction. Defendant’s argument was that once she realized she was too intoxicated to drive, she was justified in continuing to drive until she found a safe place to pull over. Sadly, she was stopped and arrested before that point. Court rejected this argument, pointing out it was her own voluntary conduct that caused her to be intoxicated and having done so was not entitled to necessity defense.
Rodriguez v. State, No. 08-03-00497-CR, 2005 WL 2313567 (Tex.App.-EI Paso 2005, no pet.) (not designated for publication).
Defendant was on his way to pick up his in-labor wife and take her to the hospital. Opinion assumes that necessity defense can be raised, but not raised here because there was no evidence that defendant faced an urgent need to avoid harm that outweighed the harm sought to be prevented by driving while intoxicated. Also, this defendant did not admit the offense.
Texas Department Of Public Safety v. Moore, 175 S.W.3d 270 (Houston [1st Dist.] 2004, no pet.).
Defendant fled scene of altercation after being threatened with a gun which was fired; the defendant drove away, but continued to drive after the threat from which he fled ceased to exist by returning to the scene after the police arrived thus, while expressly declining to rule on whether necessity was initially implicated, this defense was not established regarding defendants subsequent conduct as a matter of law.
Moncivais v. State, No. 04-01-00568-CR, 2002 WL 1445200 (Tex.App.-San Antonio 2002, no pet.) (not designated for publication).
Defendant was victim of continued assault and got into her vehicle and drove to escape her attacker. Defendant held not to be entitled to necessity instruction because did not admit she was intoxicated on night of offense.
Torres v. State, No. 13-98-372-CR, 2000 WL 34251147 (Tex.App.-Corpus Christi 2000, no pet.) (not designated for publication).
An Intoxication Manslaughter case. Held necessity defense not raised because defendant’s belief that she needed to drive while intoxicated from coast to San Antonio after being in a fight with a friend/police officer was not objectively reasonable. The Court held that even though defendant feared the person who assaulted her “might” follow her; the fact that she stopped at a convenience store in Victoria for gas and made a telephone call and did not see Dunaway following her at any time; she intended on traveling all the way back to San Antonio; she made no attempt to contact any police officer outside of Point Comfort; and she made no attempt to stop anywhere to spend the night, even though she knew she was intoxicated, led Court to conclude this situation did not involve imminent harm.
Bjornson v. State, 1996 WL 627374 (Tex.App.-Austin 1996, no pet.) (not designated for publication).
Necessity defense not raised because defendant’s belief that he needed to drive while intoxicated to look for his missing asthmatic five-year-old was not objectively reasonable.
Defendant was discharged from hospital where she was being treated for seizures and had received morphine doses and oxycodone. She was discharged two hours after last dose and she left hospital in a taxi. Two hours later Defendant was driving and hit two pedestrians. At jail she consented to blood draw which showed a significant amount of oxycodone in her blood. Defense requested a charge on involuntary intoxication which was denied and objected to a charge on voluntary intoxication which was overruled. The Court of Appeals found the charge was properly denied as there was no evidence presented that Defendant was unaware of the effects of Morphine and Percocet. The court also found the voluntary intoxication instruction was properly given.
This was a BTR case where Defendant presented evidence that unbeknownst to himself his brother left an open partially filled gas can in the trunk of the car he was driving and that he and his wife noticed an odor. He argued he passed out due to gas fumes which an expert said could mimic alcohol ingestion. Defendant appealed the denial of his request for a charge on involuntary intoxication. The Court of Appeals finds that this defense does not apply to a DWI prosecution as there is no mental state.
Spence v. State, No. 2-08-411-CR, 2009 WL 3720179 (Tex.App.-Fort Worth 2009, pet ref’d) (not designated for publication).
In the bench trial of this case, the defendant admitted to having a small amount to drink but said she thought someone must have drugged her as the amount she consumed was inconsistent with the observed intoxication at the time of the stop. Testimony was put on of another young woman who was drugged and assaulted at that same establishment, but no evidence beyond the suspect assumption was offered to support that something was put in her drink. In supporting the conviction in spite of the trial court’s finding at the time of the conviction that the driver’s intoxication was “involuntary,” the Court of Appeals held this was not a finding of an involuntary act and did not support a defense to DWI. Since involuntary intoxication was not a defense to DWI and the trial court upheld the conviction; it is plain that the court did not intend to find that she was intoxicated as the result of an involuntary act. Moreover, the record supported the finding that the intoxication was not the result of an involuntary act; thus, a rational trier of fact could have found that the evidence was sufficient to establish the elements of DWI beyond a reasonable doubt.
Brown v. State, 290 S.W.3d 247 (Tex.App.-Fort Worth 2009, pet. ref’d).
Defendant claimed he had two drinks before he went to bed, then woke up and took Ambien by mistake instead of his blood pressure pills, and as a result, had no recollection of consuming any more alcohol that night and didn’t recall driving. He asked for a jury instruction on “Involuntary Intoxication”. The Court held that such an instruction would never be available in a DWI case as there is no mental state.
Bearden v. State, No. 01-97-00900-CR, 2000 WL 19638 (Tex.App.-Houston [1st Dist.] 2000, pet. ref’d) (not designated for publication).
Defendant testified at trial that someone must have slipped him a drug that caused his intoxication and requested a defensive instruction on “Involuntary Intoxication” arguing that an individual who is unaware of the administration of mind-altering drugs cannot engage in the intentional conduct of operating a motor vehicle any more than a woman under the influence of drugs can voluntarily consent to sexual activity. Absent the defense of involuntary intoxication, individuals who have been the victim of an assault by drugs will be unjustly penalized. The Court rejected this argument finding that the Legislature has not seen fit to include a culpable mental state in its definition of the offense. The Court cited a number of decisions that have held that Involuntary Intoxication cannot apply or did not apply to the facts of a case. In this case the Court found there was no evidence of any drug being added to appellant’s beer and no evidence that he did not voluntarily consume the beer he drank that night.
Stamper v. State, No. 05-02-01730-CR, 2003 WL 21540414 (Tex.App.-Dallas 2003, no pet.)(not designated for publication).
In this case the Court affirmed the rejection of an involuntary instruction request pointing out that what she really seemed to want is an instruction on involuntary act which she did not properly request. The court found involuntary intoxication was not applicable in this case so the lower court was justified in denying her requested instruction and in refusing to let a defense expert testify on this issue.
Nelson v. State, 149 S.W.3d 206 (Tex.App.-Fort Worth 2004, no pet.).
This was a DWI where intoxication arose from defendant’s taking prescription drugs. The defense requested an instruction on “Involuntary Intoxication” and the court affirmed the denial of that request holding that the defense of involuntary intoxication does not apply to persons who are unconscious or semi-conscious at the time of the alleged offense nor does it apply when the defendant’s mental state is not an element of the alleged offense.
Aliff v. State, 955 S.W.2d 891 (Tex.App.-EI Paso 1997, no pet.).
Defendant was intoxicated due to ingestion of prescription drugs. He wanted an instruction on “Involuntary Intoxication” and that request was rejected on two grounds. First, there was no evidence in the record indicating that the defendant took the intoxicating drugs unknowingly, or without knowledge of their effect. Second, involuntary intoxication is a defense to criminal culpability and proof of a culpable mental state is not required in prosecutions for intoxication offenses, including driving while intoxicated.
McKinnon v. State, 709 S.W.2d 805 (Tex.App.-Fort Worth 1986, no pet.).
Defendant testified she only had two glasses of wine and that she “blacked out.” She does not believe this was caused by the wine and thought that the man who served her the wine must have slipped something in her drink. The Court held she was properly denied the defense because there is no evidence of any drug having been added to appellant’s wine and no testimony that appellant did not voluntarily consume the wine.
Curtin v. State, No. 13-04-630-CR, 2006 WL 347025 (Tex.App.-Corpus Christi 2006, no pet.).
Defendant was arrested for DWI after he caused a traffic accident and his breath test showed an alcohol concentration of 0.243. Defendant and his physician testified that defendant suffered from traumatic amnesia at the time of the accident. This was allegedly caused when he was struck in the head by a bar patron earlier that evening. Defendant claims he involuntarily drank in excess because of the effects from the blow to his head. In approving the denial of an instruction on involuntary intoxication, the Court found that the defense did not apply as the defendant’s mental state is not an element of the alleged offense.
The defense tried to use the defense of automatism. Automatism is defined as “engaging in what would otherwise be criminal conduct but is not criminal conduct if done in a state of unconsciousness or semi-consciousness.” The Court first points out that Texas courts have held that states of unconsciousness or automatism, including epileptic states, fall within the defense of insanity. It then says insanity defense will not stand for an offense like DWI where there is no mental state. With the defense argument that it is focusing on the lack of a voluntary act as a basis for its defense, the Court replies that there is nothing in the record to show that the defendant did not make the decision to get in his car and drive and that he did take the prescription drugs voluntarily, knowing their effect, which bars his claim of involuntary conduct.
Beasley v. State, 810 S.W.2d 838 (Tex.App.-Fort Worth 1991, pet. ref’d).
The defendant admitted to having a few drinks but attributed her signs of intoxication to her body’s reaction to her running out of her prescription which she said caused her to be in a state of a trance-like high. The Court affirmed the denial of an instruction on insanity pointing out that the focus of the insanity defense is clearly upon the mental state of the accused at the time of the offense and because there is no mental state in a DWI case, that defense will not stand.
Defendant was intoxicated due to ingestion of prescription drugs. He wanted an instruction on insanity defense. The Court held that insanity is not available because to convict a defendant for driving while intoxicated, it is not necessary to prove a culpable mental state; therefore, insanity cannot be a defense to the charge of driving while intoxicated.
Howey v. State, No. 05-08-000483-CR, 2009 WL 264797 (Tex.App.-Dallas 2009, no pet.) (not designated for publication).
Farmer v. State, 411 S.W.3d 901 (Tex.Crim.App. 2013).
Defendant’s action in taking the Ambien pill was a voluntary act because Defendant, of his own volition, picked up and ingested the Ambien pill. It is of no consequence that he mistakenly took the wrong prescription medication when he knew that he was taking a prescription medication and was aware that he was prescribed medications with intoxicating effects. Moreover, because no other evidence at trial raised an issue of Appellant’s voluntariness in taking that medication, the Trial Court properly denied Appellant’s request for a voluntariness instruction.
In this felony DWI case, the Defendant was a .19 blood alcohol concentration, the trial judge refused to allow evidence from Defendant’s daughter about the Defendant’s post-arrest diagnosis of and treatment for diabetes and how the symptoms of that disease may have made Defendant appear to be intoxicated. The exclusion followed a relevancy objection made by the State and confirmation from Defense Counsel that he had no medical testimony to offer showing the Defendant had diabetes on the date in question.
Judge properly denied a requested defense instruction on the reliability of the HGN test and the weight the jury should give it if not properly performed.

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


The plaintiffs, a class of single taxpayers residing in the state of Kansas, appeal the district court's dismissal for lack of subject matter jurisdiction. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
In 1999, the plaintiffs LaFavre and Merritt filed a complaint on behalf of unmarried individuals who paid Kansas state income tax between 1988 and 1997. They alleged that K.S.A § 79-32,110, as it then existed, was unconstitutional because it imposed lower rates on married individuals filing joint returns than on other taxpayers. Pursuant to 42 U.S.C. §§ 1981 and 1983, they sought reassessment of Kansas income taxes paid by single persons between 1988 and 1997, and refunds of any excess amounts paid.
On February 18, 2000, the district court dismissed the plaintiffs' action pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The district court held that the Eleventh Amendment of the United States Constitution barred its consideration of the plaintiffs' complaint. Because the named defendants were the State of Kansas, the Kansas Department of Revenue, the State Treasurer, the Secretary of Revenue, the Director of Taxation, and agents of the Secretary of Revenue, and because it found that the plaintiffs sought retroactive relief in the form of a reassessment and tax refunds, the district court concluded that the Eleventh Amendment prevented it from exercising jurisdiction.
We review de novo both a district court's dismissal for lack of subject matter jurisdiction and its determination that a suit is barred by the Eleventh Amendment. U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir. 1999) (Rule 12(b)(1) dismissal); Powder River Basin Res. Council v. Babbitt, 54 F.3d 1477, 1483 (10th Cir. 1995) (Eleventh Amendment determination).
The Eleventh Amendment applies both to diversity jurisdiction and to federal question jurisdiction. Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 268 (1997). "[O]nce effectively asserted [Eleventh Amendment] immunity constitutes a bar to the exercise of federal subject matter jurisdiction." Fent v. Okla. Water Res. Bd., 235 F.3d 553, 559 (10th Cir. 2000) (original emphasis omitted). It is undisputed that the defendants asserted Eleventh Amendment immunity before the district court in their motion to dismiss. Therefore, if we find that Eleventh Amendment immunity applies to the defendants, we must affirm the district court's dismissal for lack of subject matter jurisdiction.
U.S. Const. amend. XI. While its plain language does not apply to suits in federal court brought by a citizen against a citizen's own state, the Supreme Court "has long 'understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms.'" Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000) (alteration in original) (quoting Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996)). This presupposition is that "the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today." Alden v. Maine, 527 U.S. 706, 713 (1999); see also id. at 712-30 (recounting the history of state sovereignty and the impact of the Constitution and the Eleventh Amendment on that sovereignty). The Supreme Court recognized over one century ago that this immunity extends to suits brought by citizens against their own states. Hans v. Louisiana, 134 U.S. 1, 13-16 (1890).
The plaintiffs argue that the immunity recognized in Hans is outdated and no longer valid. We disagree. Both the Supreme Court and this court have repeatedly confirmed the continued validity of the immunity recognized in Hans. See, e.g., Kimel, 528 U.S. at 79 (noting the "validity and natural import of decisions like Hans"); Alden, 527 U.S. at 712-30; Coeur d'Alene Tribe, 521 U.S. at 267-68; ANR Pipeline Co. v. Lefaver, 150 F.3d 1178, 1187 (10th Cir. 1998); V-1 Oil Co. v. Utah State Dep't of Pub. Safety, 131 F.3d 1415, 1420 (10th Cir. 1997); Powder River Basin Res. Council, 54 F.3d at 1483. It is clear to this court that Eleventh Amendment immunity extends to suits brought by citizens against their own state.
The plaintiffs cite the Angelic Doctor to support their argument that, in cases such as this, a "sovereign duty" exists which renders Eleventh Amendment immunity inapplicable. However, the plaintiffs have not cited, nor have we discovered, any relevant authority supporting a "sovereign duty" exception to Eleventh Amendment immunity. Such an exception would not comport with the rationale underlying sovereign immunity. Alexander Hamilton noted this more than two centuries ago when he argued that states could not be sued in federal court  even to force a state to fulfill its duty to comply with its own contractual obligations  without the state's consent. The Federalist No. 81, cited in Alden, 527 U.S. at 716. We therefore decline to create a "sovereign duty" exception to Eleventh Amendment immunity.
The plaintiffs further argue that they have a fundamental right to remain single and that this right, if any, has been violated. They argue that traditional Eleventh Amendment analysis is inapplicable in a case involving a fundamental right because such rights are self-executing. We disagree. The plaintiffs cite no relevant authority to support this argument. Indeed, even if the plaintiffs do have a fundamental right to remain single, an issue we do not address, we have previously applied our Eleventh Amendment analysis in cases involving fundamental rights. See, e.g., Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 494-95 (10th Cir. 1998) (fundamental right to travel).
The States and their officers are bound by obligations imposed by the Constitution and by federal statutes that comport with the constitutional design. We are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States. The good faith of the States thus provides an important assurance that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land."
Alden, 527 U.S. at 755 (alteration in original) (quoting U.S. Const. Art. VI). Indeed, a class of unmarried Kansas taxpayers has already litigated this issue in the Kansas state courts. See Peden v. State, 930 P.2d 1 (Kan. 1996), cert. denied, 520 U.S. 1229 (1997). We therefore find the plaintiffs' "disremediation" argument to be without merit.
The defendant State of Kansas clearly qualifies for Eleventh Amendment immunity. The defendant Kansas Department of Revenue, as an arm of the state, also qualifies for immunity. See Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000) (noting that governmental entities that function as an arm of the state qualify for Eleventh Amendment immunity). The remaining defendants are state officials. As the Supreme Court has noted, "[t]he Eleventh Amendment bars a suit against state officials when the state is the real, substantial party in interest." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984) (internal quotation marks omitted). The determination as to whether the state is the real party in interest depends on the type of relief sought. "Suits that seek prospective relief are deemed to be suits against the official, while suits that seek retroactive relief are deemed to be suits against the state." ANR Pipeline Co., 150 F.3d at 1188. Furthermore, if the relief sought is to be money damages paid by the state, then the state is the real party in interest. Pennhurst, 465 U.S. at 101 n.11.
The plaintiffs argue that the relief they seek is prospective relief. They argue that they do not seek "damages." Rather, they denominate the relief they seek as "reassessment," "restitution," "assumpsit," and "disgorgement." Regardless of the terms the plaintiffs wish to apply, the relief they seek is the return of money they claim was unconstitutionally collected as income tax between 1988 and 1997. Thus, they seek money damages from the state for past alleged wrongs. Furthermore, the provision of the Kansas tax code which the plaintiffs allege was unconstitutional has been amended. The disparity between the rates assessed to married taxpayers filing jointly and other taxpayers was eliminated as of the 1998 tax year. See K.S.A. § 79-32,110(a) (Supp. 2000). Thus, any decision regarding the tax provision in force between 1988 and 1997 can have no prospective application. We therefore find that the relief sought by the plaintiffs is retrospective. We also find that the return of money paid as income tax is money damages collected from the state itself. Therefore, we find that this action was brought against the remaining defendants in their official capacities, that the State of Kansas is the real party in interest, and that these defendants qualify for Eleventh Amendment immunity.
We conclude that Eleventh Amendment immunity, unless abrogated, is applicable to all defendants. We now consider whether this immunity has been abrogated. It is well settled that a state may waive its immunity under the Eleventh Amendment, but we will find waiver only where a state's consent to be sued in federal court is "express and unequivocal." V-1 Oil Co., 131 F.3d at 1421. While it may be true that this court may imply a waiver of Eleventh Amendment immunity from a state statute or constitutional provision, we will imply such a waiver "only where stated by the most express language or by such overwhelming implication . . . as will leave no room for any other reasonable construction." Id. (alterations and internal quotations omitted).
The plaintiffs have failed to identify any waiver meeting the stringent standard of "express and unequivocal." Indeed, the plaintiffs concede in their brief that "Kansas emits no 'clear statement'" in the Kansas income tax code consenting to suit in federal court. Appellant's Br. at 29. The plaintiffs argue, however, that K.S.A. § 79-3230(d),(1) when read together with the Kansas Constitution and the United States Constitution, amounts to a consent by Kansas to suit by taxpayers in federal court. We disagree. A reasonable construction of this provision is that the State of Kansas has consented to taxpayer suits in its own courts. Furthermore, the Supreme Court has made clear that a state's consent to be sued is not express and unequivocal consent to be sued in federal court. College Savings Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 676 (1999) ("[A] State does not consent to suit in federal court merely by consenting to suit in the courts of its own creation. Nor does it consent to suit in federal court merely by stating its intention to 'sue and be sued,' or even by authorizing suits against it 'in any court of competent jurisdiction.'" (citations omitted) (emphasis added)); see also Pennhurst, 465 U.S. at 99 n.9 ("[T]he Court consistently has held that a State's waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the federal courts."). We find no express and unequivocal indication that the State of Kansas has consented to be sued by taxpayers in federal court.
In addition to waiver by the state, Eleventh Amendment immunity may be abrogated by Congress, primarily by acting under § 5 of the Fourteenth Amendment. ANR Pipeline Co., 150 F.3d at 1188. To find such an abrogation, we must find "an unequivocal expression of congressional intent to overturn the constitutionally guaranteed immunity of the several States." Pennhurst, 465 U.S. at 99 (internal quotation marks omitted); see also ANR Pipeline Co., 150 F.3d at 1188 (requiring the "clearest and most unmistakable terms" for congressional abrogation of a state's Eleventh Amendment immunity).
It is well settled that neither 42 U.S.C. § 1981 nor § 1983 abrogate the Eleventh Amendment immunity of the states. E.g., Will v. Mich. Dep't of State Police, 491 U.S. 58, 66-67 (1989) (§ 1983); Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1196 (10th Cir. 1998) (§§ 1981, 1983, and 1985). Thus, Congress has not abrogated the defendants' Eleventh Amendment immunity under these provisions.
Finally, the plaintiffs argue that the doctrine established in Ex Parte Young, 209 U.S. 123 (1908), permits them to maintain this action notwithstanding the Eleventh Amendment. Under Ex Parte Young, "when a party seeks only prospective equitable relief  as opposed to any form of money damages or other legal relief  then the Eleventh Amendment generally does not stand as a bar to the exercise of the judicial power of the United States." ANR Pipeline Co., 150 F.3d at 1188. However, Ex Parte Young "will not go so far as to allow federal jurisdiction over a suit that seeks to redress past wrongs  only ongoing violations are covered." Id. at 1189. Furthermore, Ex Parte Young "does not allow an award for monetary relief that is the practical equivalent of money damages, even if this relief is characterized as equitable." Id.
As we have discussed above, we find that the relief sought by the plaintiffs is retrospective and amounts to monetary damages for alleged past wrongs. We also find that, because the Kansas tax code provision has been amended and was not in force at the time of the plaintiffs' 1999 complaint, any relief addressed to the provision itself is retrospective. We find, therefore, that the Ex Parte Young exception for prospective equitable relief is inapplicable in this case.
Ex Parte Young has also been applied where no state forum is available to vindicate federal interests. Coeur d'Alene Tribe, 521 U.S. at 270-71. We have already noted, however, that not only did a state forum exist, but a class of unmarried Kansas taxpayers already litigated this issue in the Kansas state courts. See Peden v. State, 930 P.2d 1 (Kan. 1996). We therefore find no basis for applying Ex Parte Young to this case.
We find that the Eleventh Amendment bars the plaintiffs' action. Consequently, we find that the district court lacked subject matter jurisdiction to adjudicate plaintiffs' claims. Because we find that the Eleventh Amendment required dismissal of the plaintiffs' claims, we need not consider the plaintiffs' argument that there is a fundamental constitutional right to remain single. See Griffin v. Davies, 929 F.2d 550, 554 (10th Cir. 1991) ("We will not undertake to decide issues that do not affect the outcome of a dispute.").
Accordingly, we AFFIRM the district court's dismissal.
In case a taxpayer has made claim for a refund, the taxpayer shall have the right to commence a suit for the recovery of the refund at the expiration of six months after the filing of the claim for refund, if no action has been taken by the director of taxation.