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229 F. 3d 631 - United States of America v. Pablo Ochoa, Jr.
229 F3d 631 United States of America v. Pablo Ochoa, Jr.
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 99 CR 66--Rudy Lozano, Judge.
Pablo Ochoa, Jr., appeals his conviction for conspiracy to commit mail fraud in violation of 18 U.S.C. sec. 371. He challenges the government's use of hearsay testimony at his trial and argues that venue was improper. For the reasons stated herein, we affirm the defendant's conviction.
On February 23, 1995, defendant Pablo Ochoa, Jr., who lived in Chicago Heights, Illinois, purchased a 1995 Buick Roadmaster for $32,635. Because he traded in two cars on which he had a negative equity position, he paid approximately $7000 more than the Roadmaster was actually worth. To finance his purchase, he took out a car loan with monthly payments of $669 for five years.
Shortly after purchasing the Roadmaster, Ochoa asked Dave McLaughlin, who lived in Ochoa's home as a tenant, if he knew anyone who could make the car "disappear." McLaughlin called Gaylen Strange, his brother-in-law, who had previously been in the chop shop business, and asked if he knew of anyone who could dispose of a car. Strange contacted Mark Hinkle. Hinkle also had chop shop experience but was now an FBI informant. Ochoa never had any direct contact with either Hinkle or Strange. Hinkle contacted FBI Agent Bill Haman and relayed that Strange knew an owner who wanted to give up his car. Hinkle then arranged for Strange to deliver the Roadmaster to Agent Haman, who was posing as a chop shop operator.
On April 1, 1995, Strange and McLaughlin delivered Ochoa's car to Agent Haman in Schererville, Indiana. Strange gave Agent Haman keys to the car and the car itself at 11:07 a.m. These keys were copies of the originals, which had been made at Elmer & Sons, a locksmith near Ochoa's home. Elmer & Sons sold a key with an embedded computer chip matching the Roadmaster's prior to April 3. Agent Haman received the Roadmaster undamaged, without any evidence of forced entry. Strange told Agent Haman that the owner of the Roadmaster was giving up his car. Agent Haman instructed Strange to tell the owner to wait three days before reporting the car stolen and that the owner should claim the car was stolen from a mall or business area. Agent Haman also agreed to pay Strange for the car during the following week.
Agent Haman and Strange met again on April 7 in Kentland, Indiana, where Agent Haman paid Strange $350. This amount indicates that Strange was serving as broker for the owner; had he actually stolen the car, Strange could have made $15,000 from selling the parts. Strange told Agent Haman that the owner of the car planned to file a bogus insurance claim. Strange further said that the CD player in the Roadmaster had a remote control and offered to get the remote from the owner.
On April 4, three days after the Roadmaster had been delivered to Agent Haman, Ochoa called the police and reported the car stolen from his garage. Ochoa informed the responding officer that he had last seen the car on April 3 at 10:00 p.m. Ochoa also stated that the car was locked and he still had the keys to the car in his possession.
Ochoa filed an insurance claim and gave a statement to the adjuster on April 5. Ochoa told the adjuster that the last time he had seen the car was April 1 at 2:00 p.m. Ochoa also remarked that he was unsure whether he could afford the car. Ochoa was in the midst of some credit problems at the time and was making payments on an $89,000 revolving line of credit. The adjuster did not find that the claim was either wrongful or fraudulent and recommended payment. The insurance company determined that $25,550 was the actual value of the Roadmaster and mailed the bank holding Ochoa's loan for the car a check for that amount.
FBI Agent Theodore May later interviewed Ochoa. Ochoa stated that he had last seen the car the night of April 3 when he parked it in his garage. Ochoa further told Agent May that he bought the car for $25,000 and that his monthly payments were $425.
Ochoa and Strange were indicted for conspiracy to commit mail fraud on April 23, 1999. After his motion to dismiss the indictment for improper venue was denied, Ochoa pled not guilty. Strange originally pled not guilty, but later changed his plea and agreed to testify for the government against Ochoa.
In the process of building the case, the FBI attempted to locate McLaughlin, who had moved out of Ochoa's house. On July 8, Agent May went to the address where he believed McLaughlin lived and saw two men sitting on the porch. One man identified himself as Art Garza, the owner of the residence; unbeknownst to Agent May, the other man was McLaughlin. Garza stated that he knew McLaughlin and might see him in the next few days. Agent May told both Garza and the unidentified McLaughlin that McLaughlin could benefit by talking to the FBI and that he might not be charged.
The next day McLaughlin called Agent May, and the two agreed to meet at a restaurant. McLaughlin stated that he was approached by Ochoa, who asked if he knew anyone who could make the Roadmaster disappear. Ochoa told McLaughlin that he was having severe financial problems and difficulty in paying the loan for the Roadmaster. McLaughlin explained that he then contacted Strange and asked if Strange could dispose of the car. McLaughlin further told Agent May that Ochoa had made copies of the keys to the Roadmaster in order to retain the original keys, which would support Ochoa's claim that the car had been stolen.
As trial approached, the FBI again attempted to locate McLaughlin to serve him with a subpoena to appear. Agents returned to Garza's residence where McLaughlin was still receiving mail. Garza informed the FBI that McLaughlin had left with all his belongings and said that he was moving to Maryland. The FBI spent several days looking for McLaughlin and obtained a material witness arrest warrant for him. Agent May also contacted McLaughlin's employer and learned that he stopped coming to work when the FBI began looking for him. However, McLaughlin was owed his last paycheck. After Agent May left, McLaughlin called his employer. When McLaughlin hung up, the person who received the call used "star 69" and discovered that McLaughlin made the phone call from Ochoa's residence. Phone records revealed seven phone calls from Ochoa's home to McLaughlin's employer over the course of December 16-17, 1999.
Ochoa's trial began on January 3, 2000. The prosecution relied on the testimony of Strange and Agent Haman, among others. The government also introduced the statements of McLaughlin through Agent May over the objection of Ochoa. The trial judge ruled that this hearsay evidence was admissible as statements against interest under Federal Rule of Evidence 804(b)(3), under the residual exception of Rule 807, and because Ochoa forfeited his objection due to his own wrongdoing, as provided in Rule 804(b)(6). Ochoa testified in his defense that McLaughlin used his knowledge of Ochoa's home to break into the residence, take the Roadmaster's keys, make copies, and then steal the Roadmaster. Ochoa also stated that he was not at home on December 16-17, 1999, and so McLaughlin must have again broken into his home to make phone calls to McLaughlin's employer. The jury found Ochoa guilty, and he was sentenced to ten months, five to be served in an institution and five of home confinement.
After sentencing, Ochoa filed a notice of appeal and then a motion for release pending appeal. The trial court believed that its decision to admit the hearsay evidence was a close question, the resolution of which on appeal in Ochoa's favor would likely result in reversal or a new trial. Thus, the court granted Ochoa's motion. This appeal followed.
Ochoa argues that Indiana is an improper venue for his trial. He claims that all of the essential acts of the conspiracy took place in Illinois, and thus venue is proper only in Illinois. The standard of review for a claim of improper venue is whether the government proved by a preponderance of the evidence that the crimes occurred in the district charged, viewing the evidence in the light most favorable to the government. See United States v. Tingle, 183 F.3d 719, 726 (7th Cir. 1999); United States v. Brandon, 50 F.3d 464, 469 (7th Cir. 1997).
Trials must be held in the state and district in which the offense was committed. See U.S. Const. art. III, sec. 2, cl. 3; Fed.R.Crim.P. 18. For crimes that occur in more than one state or district, venue is constitutionally and statutorily proper in any district in which part of the crime was committed. See 18 U.S.C. sec. 3237(a); Tingle, 183 F.3d at 726. Thus, the traditional rule is that a conspiracy charge may be tried in any district in which an overt act of the conspiracy occurred. See United States v. Rodriguez, 67 F.3d 1312, 1318 (7th Cir. 1995); United States v. Molt, 772 F.2d 366, 369 (7th Cir. 1985) ("As long as one overt act in furtherance of the conspiracy is committed in a district, venue is proper there.").
Ochoa argues that United States v. Cabrales, 524 U.S. 1 (1998) creates a distinction between essential and unessential acts, and that venue is proper only where the essential acts of a crime took place. Under his theory, all of the essential acts, such as the formation of the conspiracy and the mailing of the false claim, took place in Illinois and so venue is proper only there. Ochoa is incorrect. Cabrales stands for the proposition that venue is improper in a district if the only acts that occurred in that district do not provide evidence of the elements of the charged crime. Id. at 6-7. In Cabrales, the government tried the defendant for a money laundering charge in the state where the funds were generated, even though the laundering itself occurred in a different state. The indictment on this charge did not involve a conspiracy or allege that the funds had been transported from one state to another. The definition of money laundering criminalizes only the financial transactions in which the money is laundered, and not the prior conduct which generated the money. For purposes of the laundering charge described in the indictment, the location of the illegal revenue generating activities was not just unessential, but wholly irrelevant. Thus, Cabrales does not involve any notion of unessential acts but rather clarifies which acts are part of the crime charged and which acts are not. Cabrales noted that the laundering count in that case did not charge a conspiracy that would link the defendant to the acts of others done in different states, id. at 7, and distinguished a decision cited by the government on the grounds that the case involved a conspiracy charge, id. at 8. The Supreme Court recently reaffirmed the settled proposition that for conspiracy charges "venue [is] proper against [the] defendant in [any] district where [a] co-conspirator carried out overt acts even though there was no evidence that the defendant had entered that district or that the conspiracy was formed there." United States v. Rodriguez-Moreno, 526 U.S. 275, 281-82 (1999).
In our case, the government's evidence shows two overt acts tending to prove the elements of the crime with which Ochoa is charged, conspiracy to commit mail fraud, occurred in Indiana. First, Ochoa's Roadmaster was delivered to Agent Haman in Indiana. Second, Strange returned to Indiana to collect his payment for brokering the car between its owner, Ochoa, and the supposed chop shop operator, Agent Haman. Thus, venue is proper in Indiana.
Ochoa argues that McLaughlin's statements could not constitutionally be admitted under any of the three Federal Rules of Evidence relied upon by the district court, 804(b)(3), 807, and 804(b)(6). Ochoa claims that using this impermissible hearsay at his trial violated his rights under the Confrontation Clause of the Sixth Amendment. The government argues that the evidence was properly introduced, and even if it was not, the error is harmless. Where the defendant's Sixth Amendment right to confront witnesses is directly implicated, our review is de novo. See United States v. Williamson, 202 F.3d 974, 978 (7th Cir. 2000).
Examination of whether a co-conspirator's or accomplice's statements against penal interest are admissible against a defendant takes place in two parts, one statutory and the other constitutional. First, the testimony must be admissible under Rule 804(b)(3). The Federal Rules of Evidence do not exclude such statements if (1) the declarant is unavailable; (2) the statement is against the declarant's penal interest; and (3) corroborating circumstances indicate the trustworthiness of the statement. See United States v. Shukri, 207 F.3d 412, 416 (7th Cir. 2000); United States v. Robbins, 197 F.3d 829, 838 (7th Cir. 1999). In addition, where a party seeks to introduce a narrative, each portion must be examined, and only those individual statements that inculpate the declarant are admissible. See Williamson v. United States, 512 U.S. 594, 600-601 (1994); United States v. Nagib, 56 F.3d 798, 804 (7th Cir. 1995).
Second, because a co-conspirator's statements incriminating the defendant do not fall within a firmly rooted hearsay exception, the Confrontation Clause requires that such evidence contain "particularized guarantees of trustworthiness" such that cross-examination would be of marginal utility in determining the truthfulness of the statements. See Lilly v. Virginia, 527 U.S. 116, 134 & n.5, 136 (1999) (plurality opinion); Robbins, 197 F.3d at 839. Such guarantees must be shown by the circumstances of the statements themselves and cannot be proven by other evidence produced at trial. See Lilly, 527 U.S. at 137-38; United States v. Castelan, 219 F.3d 690, 695 (7th Cir. 2000). A very strong presumption of unreliability attaches to statements of co-conspirators where the statements (1) are produced through government involvement; (2) describe past events; and (3) have not been subject to adversarial testing. See Lilly, 527 U.S. at 137; Castelan, 219 F.3d at 695.
Ochoa argues that the FBI's losing track of McLaughlin's whereabouts does not make him unavailable for purposes of introducing hearsay testimony. The government, which is the party seeking to introduce the hearsay statements, bears the burden of showing that the declarant was unavailable. See United States v. Reed, 277 F.3d 763, 2000 WL 1277945, *2 (7th Cir. 2000). The prosecution met this burden. The FBI spent several days trying to locate McLaughlin. They spoke to his employer, his landlord, and other individuals, and obtained a material witness arrest warrant as well. These activities constitute a reasonable, good faith effort to uncover McLaughlin. The fact that after this kind of search the FBI was unable to find him demonstrates that McLaughlin was unavailable for purposes of the hearsay exceptions. Id.
However, McLaughlin's statements do not have particularized guarantees of trustworthiness as required by the Constitution, and therefore his statements should not have been admitted under Rule 804(b)(3).1 The high presumption of unreliability applies because Agent May was involved in eliciting McLaughlin's statements, McLaughlin described events of the conspiracy that occurred in the past, and the statements were not adversarially tested. The circumstances in which McLaughlin made the statements cannot overcome this presumption. When Agent May approached Garza and said that McLaughlin could benefit by talking to the FBI, McLaughlin was sitting on Garza's porch and heard this proposition. Agent May informed McLaughlin that he could either be charged or cooperate and possibly not be charged when the two met. McLaughlin was also told that he was considered a lesser target of the investigation compared to Ochoa and Strange. Agent May's presentation gave McLaughlin a strong incentive to curry favor with the FBI by falsely implicating his two co- conspirators so that he would not be charged. See Robbins, 197 F.3d at 840. Similarly, McLaughlin's story spread the blame to the other participants in the conspiracy and particularly Ochoa, whom McLaughlin claims came up with the idea of engaging in insurance fraud. Id. at 839-40. Agent May also informed McLaughlin of all the facts as May knew them before asking McLaughlin to tell his story. This gave McLaughlin an opportunity to prevaricate by confirming possibly false parts of Agent May's story and then shaping his own statements into what May wanted to hear rather than what really happened. "One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature." Williamson, 512 U.S. at 599-600.
The government relies on Robbins in claiming that McLaughlin's statements bear the requisite guarantees of trustworthiness. However, the declarant in Robbins made the hearsay statements to his fianc e, rather than an FBI agent as in the instant case. 197 F.3d at 840. As the above analysis shows, statements made by a co- conspirator to a law enforcement official are far less likely to be trustworthy, and thus Robbins is distinguishable. The government also argues that McLaughlin came to Agent May and was under no compulsion to make the statements in question. While voluntariness is a factor in determining whether statements against penal interest that incriminate other participants should be admitted into evidence, id., voluntariness alone is not sufficient to overcome the very strong presumption of unreliability that attaches to McLaughlin's statements in this case.
Rule 807 is a recodification of former Rules 803(24) and 804(b)(5), and thus the same requirements for admitting evidence under these prior residual exceptions to the hearsay rule apply to 807. These requirements are (1) circumstantial guarantees of trustworthiness; (2) materiality; (3) probative value; (4) the interests of justice; and (5) notice. See United States v. Hall, 165 F.3d 1095, 1110 (7th Cir. 1999). In addition, almost by definition, Rule 807 is not a firmly rooted exception to the hearsay rule. See United States v. Wesela, 223 F.3d 656, 664 (7th Cir. 2000). Therefore, only hearsay testimony containing particularized guarantees of trustworthiness as shown by the circumstances in which the statements were made may constitutionally be admitted under this Rule. See Ohio v. Roberts, 448 U.S. 56, 66 (1980). But as the Rule 804(b)(3) analysis shows, McLaughlin's statements do not contain such guarantees. Thus, admitting McLaughlin's statements under Rule 807 violates the Confrontation Clause in the same way that their admission under Rule 804 (b)(3) does.
The admission of McLaughlin's hearsay statements was erroneous and violated Ochoa's rights under the Confrontation Clause. However, constitutional error that is harmless will not cause an otherwise valid conviction to be set aside. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); Castelan, 219 F.3d at 696. The test is whether the reviewing court can determine beyond a reasonable doubt that the error did not contribute to the verdict. See Neder v. United States, 527 U.S. 1, 15-16 (1999). In analyzing whether an error is harmless, we look to factors such as (1) the importance of the witnesses's testimony in the prosecution's case; (2) whether the testimony was cumulative; (3) whether other evidence corroborated or contradicted the witness's material testimony; and (4) the overall strength of the prosecution's case. See Van Arsdall, 475 U.S. at 684; Castelan, 219 F.3d at 696.
The first and second factors weigh somewhat in favor of the government. McLaughlin's statements establish that Ochoa approached him with a plan to commit insurance fraud, he and Ochoa asked a local locksmith to make a duplicate of the Roadmaster's keys, and Ochoa had a financial incentive to file a fraudulent claim. Though not as direct as McLaughlin's testimony, independent evidence supports the facts of each of these statements. Ochoa was unquestionably the owner of the Roadmaster, and Strange told Agent Haman that the car's owner intended to file a bogus insurance claim. Agent Haman received a set of keys for the car that had been made at Elmer & Sons, and the locksmith's records showed that a key encoded with the same computer chip as for Ochoa's Roadmaster had been sold during the period preceding April 3, 1995. Ochoa admitted on cross-examination that the Roadmaster was worth less than the amount of the loan he took out to pay for it.
The third and fourth factors more strongly support finding harmless error. The facts just recounted corroborate McLaughlin's statements and add weight to the prosecution's case. Ochoa's motive is established because the Roadmaster was worth less than its loan. A set of duplicate keys for the Roadmaster was made during the time prior to April 3, 1995, so that Ochoa could retain the originals and the copies could be delivered to the chop shop. Ochoa retained the original set of keys to make his claim of theft more believable, while the copies permitted the Roadmaster to be delivered to the chop shop undamaged. Strange told Agent Haman that the owner of the Roadmaster intended to file a fraudulent insurance claim, and Ochoa was the car's owner. The government presented additional evidence as well. Strange was paid only $350, indicating that he was brokering the car between Ochoa and a chop shop, since he could have sold the parts of a stolen Roadmaster for a much higher amount. Strange stated that he could get the car's CD remote from the owner, strongly suggesting Ochoa's involvement, since he was the owner of the car. Agent Haman told Strange to inform the owner that he should wait three days before calling in the claim, which is what Ochoa did.
Ochoa's explanations after the car was delivered to the FBI contain numerous prevarications, which are positive evidence of his guilt. See United States v. Jocic, 207 F.3d 889, 893 (7th Cir. 2000); United States v. Zafiro, 945 F.2d 881, 888 (7th Cir. 1991), aff'd on other grounds, 506 U.S. 534 (1993). The Roadmaster was in possession of the FBI on the morning of April 1, 1995. Ochoa told the police officer who responded to his car theft report that the night of April 3 was the final time he saw the Roadmaster, which is impossible. In his conversation with the insurance adjuster, Ochoa stated that he saw the car for the last time during the afternoon of April 1, which is inconsistent with his statement to the police and is also a lie. Ochoa returned to his original false story when he spoke with the FBI, again claiming that he had last seen the Roadmaster on the night of April 3. These varying accounts show that Ochoa was attempting to cover up the fact that he waited a few days after the Roadmaster's disappearance before reporting the car stolen, as requested by Agent Haman. Ochoa also told the FBI that he paid only $25,000 for the car and that his loan payments were $425 per month. In fact, he had paid over $32,000 and his payments were $669 a month. These statements indicate that Ochoa attempted to hide his motive for getting rid of the Roadmaster.
In sum, the jury was presented with credible evidence that Ochoa had his car stolen so that he could file a false insurance claim, had a financial motive to do so, and falsely attempted to cover up both his act and motive. Given such circumstances, we find beyond a reasonable doubt that the jury would have convicted Ochoa without McLaughlin's statements, and so the admission of the hearsay testimony was harmless error.
The hearsay testimony of McLaughlin was improperly admitted because it did not possess particularized guarantees of trustworthiness and Ochoa was not proven to have engaged in wrongdoing in procuring the absence of McLaughlin. However, the government provided a substantial amount of evidence demonstrating Ochoa's guilt besides these statements. Therefore, the judgment of the district court is Affirmed.
McLaughlin's conversation with Agent May was also introduced as a whole, in possible violation of Williamson. However, Ochoa does not raise this argument and so we need not analyze whether certain portions of the narrative should have been excluded.
Most courts to consider this question have held, and Fed.R.Evid. 804 advisory committee's note states, that a preponderance of the evidence is the correct standard of proof for determining whether the defendant engaged or acquiesced in wrongdoing, though some contrary authority exists. See Emery, 186 F.3d at 926-27 (collecting cases and discussing conflict). Since Ochoa does not argue this issue, we will not address it.
Ochoa also argues that even knowingly aiding a witness in becoming unavailable is not sufficient for Confrontation Clause rights to be forfeited under Rule 804(b)(6). Ochoa is correct that apparently all of the cases applying this Rule and its judicially created predecessor involve much more egregious conduct, such as murder or threats of violence, than what Ochoa may have done. See, e.g., United States v. Johnson, 219 F.3d 349, 355-56 (4th Cir. 2000) (murder); Emery, 186 F.3d at 926 (murder); United States v. Aguier, 975 F.2d 45, 47 (2d Cir. 1992) (threats). On the other hand, no case has refused to apply the Rule to such circumstances, and Fed.R.Evid. 804 advisory committee's note says that criminal conduct is not required for forfeiture. Since we find that the evidence is insufficient to prove that Ochoa knowingly helped McLaughlin disappear, we need not determine whether Rule 804(b)(6) would cause a defendant's hearsay objections to be forfeited if applied to such facts.

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A petition for a writ of certiorari filed on Feb. 21 will give the Supreme Court an opportunity to rethink from the other party's perspective its Jan. 14 denial of review of a case featuring one side of a debate on the extent of the Hatch-Waxman Act's safe harbor provision on patent infringement (Momenta Pharmaceuticals Inc. v. Amphastar Pharmaceuticals Inc., U.S., No. 12-1033, review sought 2/21/2013).
The safe harbor applies to non-sales activities of a generic drug maker. There is no debate that 35 U.S.C. §271(e)(1) extends the safe harbor to activities required by the Food and Drug Administration before it approves marketing of the generic drug. However, two decisions by the U.S. Court of Appeals for the Federal Circuit were arguably in conflict about extending safe harbor protection to other activities, particularly to those that might occur after FDA approval.
After receiving advice from the Solicitor General, the high court denied a cert petition appealing the decision that limited safe harbor protection to the pre-approval stage. GlaxoSmithKline v. Classen Immunotherapies Inc., No. 11-1078 (U.S., review denied Jan. 14, 2013) (06 PTD, 1/9/13).
In the Momenta case, on the other hand, the appeals court held that the generic drug maker may, post-approval, continue to infringe a follow-on method patent so long as performing the method satisfies FDA requirements. Momenta Pharmaceuticals Inc. v. Amphastar Pharmaceuticals Inc., 686 F.3d 1348, 103 U.S.P.Q.2d 1800 (Fed. Cir. 2012) (151 PTD, 8/7/12).
The drug underlying the controversy in the instant case is the blood-thinning injectable Lovenox (enoxaparin sodium injection), with composition patents owned by Aventis Pharmaceuticals Inc. Momenta Pharmaceuticals Inc.'s patent (U.S. Patent No. 7,575,886) at issue here is on methods of analyzing and monitoring particular therapeutic heparin products such as Lovenox.
Generic maker Amphastar Pharmaceuticals Inc. survived a lawsuit by Aventis. Aventis Pharma S.A. v. Amphastar Pharmaceuticals Inc., 525 F.3d 1334, 87 U.S.P.Q.2d 1110 (Fed. Cir. 2008) (98 PTD, 5/21/08). But it then faced Momenta's challenge on infringing the method patent.
In its recommendation that the Supreme Court deny review in Classen, the government contented that the Federal Circuit majority in Momenta “cabin[ed] the adverse impact” of the Classen decision.
The high court made no mention of the solicitor general's advice in denying review, so there was little doubt Momenta would argue that a controversy still exists and needs to be resolved. Indeed, its cert petition gave considerable attention to the solicitor general's brief in Classen, essentially arguing that Federal Circuit failed in both cases.
Deanne E. Maynard of Morrison & Foerster, Washington, D.C., represents Momenta.
Amphastar's response is due March 25. At the Federal Circuit, Amphastar was represented by Patricia A. Millett of Akin Gump Strauss Hauer & Feld, Washington, D.C.
• In Alcon Research Ltd. v. Apotex Inc. ( U.S., No. 12-984, review sought 2/8/13). The petition appeals the Federal Circuit's invalidation of some of the claims of the patent underlying the eye disease drug Patanol. Alcon Research Ltd. v. Apotex Inc., 687 F.3d 1362, 103 U.S.P.Q.2d 1737 (Fed. Cir. 2012) (154 PTD, 8/10/12). Specifically, the petition asks whether it was appropriate under 35 U.S.C. §112(d) for the Federal Circuit to eliminate a claim limitation--“therapeutically effective amount”--in an independent claim based on concentration ranges specified in dependent claims.
• In Andrews Arts & Sciences Law L.L.C. v. SnoWizard Inc, ( U.S., No. 12-974, review sought 2/11/13). The petition asks whether a Louisiana state court properly declined to exercise subject matter jurisdiction over a defamation and unfair practice collateral lawsuit that was brought against an attorney who published an article on his firm's website about an opponent in a patent dispute that was being litigated in federal court. Andrews Arts & Sciences Law L.L.C. v. SnoWizard Inc. (La. Ct. App., 7/31/12).
Text of the Momenta petition is available at http://pub.bna.com/ptcj/121033pet13Feb21.pdf.


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are unlawful and must be discontinued, is affirmative in its nature and subject to judicial review by the Commerce Court.
Where the validity of an order of the Interstate Commerce Commission directing discontinuance of divisions of rates with another railroad depends upon whether the latter is a common carrier or a plant facility, the determination of that question upon undisputed facts is a conclusion of law which is subject to judicial review.
Although a railroad may have originally been a mere plant facility, after it has been acquired by a common carrier duly organized under the law of the state and performing service as such and regulated and operated under competent authority, it is no longer a plant facility, but a public institution, even though the owner of the industry of which it formerly was an appendage is the principal shipper of freight thereover.
The extent to which a railroad is in fact used does not determine whether it is or is not a common carrier, but the right of the public to demand service of it.
Railroads owned by corporations properly organized under the laws of the state in which they are and treated as common carriers by the state, authorized to exercise eminent domain, dealt with as common carriers by other railroad corporations, and engaged in carrying for hire goods of those who see fit to employ them, are common carriers for all purposes, and cannot be treated as such as to the general public and not as to those who have a proprietary interest in the corporations owning them.
Congress has expressly excepted the transportation of lumber from the operation of the commodities clause, and had power so to do. United States v. Del. & Hudson Co., 213 U. S. 366.
Debates in Congress may be resorted to for the purpose of showing that which prompted the legislation.
This Court will not, in interpreting the power of the Interstate Commerce Commission in regard to a particular traffic, ignore a declaration of public policy in regard to that traffic as shown by an enactment of Congress.
Congress, by the exemption of lumber from the operation of the commodities clause, shows that it regarded railroad tap lines for lumber, owned and operated by the owners of the timber, as essential for the development of the timber interests of the country.
It is beyond the authority of the Interstate Commerce Commission to order a tap line to cease a division of rates as to lumber owned by it or by those having proprietary interest therein if it is allowed such division as to lumber shipments by others.
If the division of joint rates between the principal carrier and the tap line really amounts to a rebate or discrimination in favor of the tap line owners, it is within the power and duty of the Interstate Commerce Commission to reduce such division to a proper point.
These are all appeals from decrees of the United States Commerce Court (209 F. 244) annulling orders of the Interstate Commerce Commission refusing in whole or in part to compel certain common carriers which had filed schedules cancelling former schedules covering through routes and joint rates with the Louisiana & Pacific Railway Company, the Woodworth & Louisiana Central Railway Company, the Mansfield Railway & Transportation Company and the Victoria, Fisher & Western Railroad Company, appellees, hereinafter referred to as tap lines, to establish or reestablish through routes and joint rates and to grant allowances and divisions to the tap lines.
of carriers were set forth, and the conclusion stated that the real relation of a tap line was a question to be decided upon the facts in each case.
Lake Charles are connected by the Lake Charles & Northern Railroad, a Southern Pacific Railway Company line, originally built by the Long interests as a part of the Louisiana & Pacific, and sold to the Lake Charles & Northern with the reservation of trackage rights advantageous to the Louisiana & Pacific. By means of this arrangement the Louisiana & Pacific connects with the Kansas City Southern and the Santa Fe at De Ridder, with the Frisco at Fulton (a station south of Fayette), and with the Southern Pacific, Iron Mountain, & Kansas City Southern at Lake Charles. Its equipment consists of 22 locomotives, 6 cabooses, 41 freight cars, and 270 logging cars, and a private car used by its officers, who are connected with the lumber companies, in traveling around the country. The lumber companies have many miles of unincorporated logging tracks connecting with the Louisiana & Pacific at various points. There are a number of other stations on the line, among them Bannister, where the Brown Lumber Company owns a small independent mill.
being supplied by the controlling interests. The passenger receipts for 1910 were $473.77. A logging train runs daily on each branch, and there is one "mixed" train, loaded chiefly with logs and lumber, between Lake Charles and De Ridder. The allowances paid by the trunk lines range from 1 1/2 to 5 1/2¢ per 100 pounds out of their earnings under the group lumber rate. The operating revenue for the year ending June 30, 1910, was $220,985.94, with operating expenses of $145,433.69, and there was an accumulated surplus of $73,581.07 on that date.
The Commission found that no charge was made for hauling the logs to the mills by the tap line, and that, for the short switching service, allowances were made as above stated, and concluded that it regarded the whole arrangement as indefensible and unlawful, and saw no ground upon which any allowance might lawfully be made.
The Woodworth & Louisiana Central Railway Company and the Rapides Lumber Company, situated at Woodworth, are identical in interest. The mill is near the Iron Mountain, which has a spur track to the mill, and the tap line has a standard gauge track from the mill to La Moria, about 6 miles, where it connects with the Southern Pacific Railway, Texas & Pacific Railway, and Chicago, Rock Island, & Pacific Railway, and a narrow-gauge track in the other direction for 18 miles, whence spur tracks go into the timber. The equipment consists of 1 standard-gauge locomotive, 5 narrow-gauge locomotives, and 2 standard and 9 narrow-gauge cars. The steel in the logging spurs and 4 of the narrow-gauge locomotives used by the lumber company on the spurs are owned by the tap line and leased to the lumber company, while the right of way for the narrow-gauge track is leased from the lumber company.
by the tap line from the planing mill to the place where they are taken by the Iron Mountain, about 25 feet. About 95% of the lumber goes through La Moria, being switched there by the tap line; the allowances from the Iron Mountain out of through rates being from 1 1/2 to 5 1/2¢ per 100 pounds, while from the trunk lines at La Moria from 2 to 5 1/2¢. There are no joint rates except on lumber. For the year ending June 30, 1910, there were 40,707 tons of freight handled for the lumber company and 2,100 tons of outside traffic. It has no passenger business. Its operations for that year showed a deficit, but there was a surplus from previous years of nearly $10,000. It files annual reports with the Commission.
The Mansfield Railway & Transportation Company and the Frost-Johnson Lumber Company are identical in interest. The tap line extends from Mansfield to a logging camp in the woods, known as Hunter, a distance of about 16 miles, and the line which was originally incorporated by the citizens of Mansfield in 1881, consisting of 2 miles of track from the town to a connection with the Texas & Pacific at Mansfield Junction. Later, the Mansfield Company acquired the 2 mile track and equipment, and the interests controlling it purchased a large amount of timber lands near Mansfield at a point called Oak Hill, where a mill was built and spur tracks were laid into the timber, which were later turned over to the Mansfield Company, with the free privilege reserved to the lumber company to operate logging trains between the timber and the mill, which operation is performed by a subsidiary company. The purchase price did not reflect the value of the reservation. There are about 25 miles of unincorporated logging tracks. The tap line also has a connection with the Kansas City Southern. It owns a locomotive, a passenger coach, and a box car.
3/4 of a mile, although the mill is within 300 feet of the Kansas City Southern, and was formerly connected by a spur track which was abandoned and taken up, and to the Texas & Pacific, a distance of 2 1/2 miles. The tap line bears the expense of maintaining its tracks extending into the woods.
No other yellow-pine mills are served by the tap line, but there is a hardwood mill adjacent to the Frost-Johnson mill, obtaining a substantial portion of its logs from the latter company or subsidiaries, the price including delivery at the hardwood mill, the logs being hauled by the logging company under its trackage right. Some logs are also obtained from the Texas & Pacific, for the switching of which the hardwood mill pays the tap line $2.50 a car or less. The tap line maintains joint rates on hardwood as well as yellow pine.
Practically no traffic other than that in which the lumber company is interested moves over the track from Mansfield to Hunter, but a good deal of outside traffic moves over the original 2 miles from Mansfield to Mansfield Junction. 16,539 tons of miscellaneous freight were handled during the year ending June 30, 1910, most of which passed over the Mansfield Junction branch, and much of which was for the controlling interests or their employees, while, during the same time, 28,596 tons, of lumber were handled, 91.4% of which was supplied by the lumber company. A daily train is operated by the tap line in each direction on regular schedule, handling passengers, mail, and express; but in 1910, the passenger revenues were only $1,209.76, while its freight revenues were $25,617.19.
right of way of the Texas & Pacific within a short distance, the allowance of a like amount by the Texas & Pacific for switching from the mill to Mansfield and down to the junction was unlawful.
The Victoria, Fisher, & Western Railroad Company and the Louisiana Long Leaf Lumber Company have the same stockholders and officers. The tap line extends from Victoria, where it connects with the Texas & Pacific, to Fisher, where it crosses the Kansas City Southern Railway, and then extends to Cain, in all about 31 miles. A part of the track was built some time ago, and was acquired by the lumber company in 1900. In 1902, the railroad company was incorporated and its stock exchanged as a stock dividend for the line. There are about 25 miles of logging spurs and side tracks. The equipment consists of 5 locomotives, 4 cabooses, 3 box cars, 1 flat car, and 105 logging cars. It does not operate any trains on regular schedule. There are two mills owned by the Lumber Company, one about a mile from the junction with the Texas & Pacific, and the other about half a mile from the tracks of the Kansas City Southern.
of freight for the year 1910, over 99% was furnished by the proprietary company. And the accumulated surplus at the end of June, 1910, was $13,509.17.
The Commission held that the tap line could not participate as a common carrier in joint rates on the products of the proprietary company, but said that the lumber rate of the trunk lines applied from the adjacent mills, and that they might make a reasonable allowance for switching.
"The Commission upon the record finds in the case of the . . . Woodworth & Louisiana Central Railway Company; Mansfield Railway & Transportation Company; Louisiana & Pacific Railway Company; Victoria, Fisher, & Western Railroad Company -- that the tracks and equipment, with respect to the industry of the several proprietary companies, are plant facilities, and that the service performed therewith for the respective proprietary lumber companies in moving logs to their respective mills, and performed therewith in moving the products of the mills to the trunk lines, is not a service of transportation by a common carrier railroad, but is a plant service by a plant facility, and that any allowances or divisions out of the rate on account thereof are unlawful and result in undue and unreasonable preferences and unjust discriminations, as found in the said reports,"
and it ordered that the trunk lines should cease and desist and abstain from making any such allowances to the tap lines named.
among others, the appellees herein, it would, upon proper petition, enter an order requiring the establishment of such routes and rates, or enter upon an inquiry with respect thereto, and further provided that all divisions of joint rates should be submitted to the Commission for approval.
The appellees thereupon, by their several petitions filed in the United States Commerce Court, sought to have the order of the Commission, so far as applicable to them, enjoined and annulled. The Interstate Commerce Commission, the Atchison, Topeka, & Santa Fe Railway Company, the Gulf, Colorado, & Santa Fe Railway Company, and the Railroad Commission of Louisiana, intervened. The Commerce Court said that the question was whether the Commission had acted arbitrarily and on improper considerations in determining under what circumstances a common carrier tap line would be deemed to be performing a mere plant service for a proprietary company, and held that, as the service rendered to the proprietary and nonproprietary mills by the tap lines was the same, and as it was held to be a transportation service by an interstate common carrier as to the nonproprietary mills, it must be held to be a similar service as to the proprietary mills, and concluded that the Commission was without power to prohibit the making of joint rates by the trunk lines and the tap lines, and the payment of some division of such rates to the tap lines for their services in hauling logs to and lumber from the proprietary mills, and annulled the order of the Commission in this respect and so far as it applied to the appellees.
The United States and the Interstate Commerce Commission, and the Atchison, Topeka, & Santa Fe Railway Company, and the Gulf, Colorado, & Santa Fe Railway Company, entered separate appeals from the decrees of the Commerce Court in the four cases instituted by the appellees.
A preliminary objection is made to the jurisdiction of the Commerce Court in that the order of the Commission is not reviewable because merely of a negative character. The Commerce Court examined this question, and in view of the amended order of October 30, 1912, reached the conclusion that the order was affirmative in its nature, and of a character permitting of review by proper proceedings in that court under the act giving it jurisdiction in such cases. We find no reason to differ with this conclusion, and are of opinion that the Commerce Court had jurisdiction in the case.
It is further insisted, upon the authority of Proctor & Gamble Co. v. United States, 225 U. S. 282, and other cases in this Court which have followed that decision, that, in the present cases, the decision rests upon conclusions of the Commission as to matters of fact only, which are within the sole jurisdiction of that body, and not reviewable in the courts. But we shall consider the case upon the findings of fact preceding this opinion, which are identical with those made by the Commission, and test the conclusions reached as matters of law, giving proper consideration to matters of fact which are not in dispute.
respective proprietary lumber companies in moving logs to their respective mills, and performed therewith in moving the products of the mills to the trunk lines, is not a service of transportation by a common carrier railroad, but is a plant service by a plant facility, and that any allowances or divisions out of the rate on account thereof are unlawful and result in undue and unreasonable preferences and unjust discriminations, as found in the said reports;"
"3. It is ordered, that the principal defendants [trunk lines, naming them], be, and they are hereby, notified and required to cease and desist, and for a period of two years hereafter, or until otherwise ordered, to abstain from making any such allowances to any of the above-named parties to the record in respect of any such above-described service."
The question now before this Court is the correctness of this decree.
operated them. But a common carrier, performing service as such, regulated and operated under competent authority, as observed by Commissioner Prouty in Kaul Lumber Co. v. Central of Georgia R. Co., 20 I.C.C. 450, 456, is no longer a mere appendage of a mill, "but a public institution." It thus becomes apparent that the real question in these cases is the true character of the roads here involved. Are they plant facilities merely, or common carriers with rights and obligations as such?
time. But nonetheless, by virtue of the conditions under which it is provided, the spur may constitute at all times a part of the transportation facilities of the carrier which are operated under the obligations of public service and are subject to the regulation of public authority. As was said by this Court in Hairston v. Danville & Western Ry., 208 U. S. 608:"
"The uses for which the track was desired are not the less public because the motive which dictated its location over this particular land was to reach a private industry, or because the proprietors of that industry contributed in any way to the cost."
"There is a clear distinction between spurs which are owned and operated by a common carrier as a part of its system and under its public obligation and merely private sidings. See De Camp v. Hibernia R. Co., 47 N.J.L. 43; Chicago &c. R. Co. v. Porter, 43 Minn. 527; Ulmer v. Lime Rock R. Co., 98 Me. 579; Railway Company v. Petty, 57 Ark. 359; Dietrich v. Murdock, 42 Mo. 279; Bedford Quarries Co. v. Chicago &c. R. Co., 175 Ind. 303."
do more or less outside transportation, and it would be difficult to draw any line of demarcation between the logging road as such and the logging road which has become a general carrier of freight."
This representation, it is contended by the Attorney General of Louisiana, who appears here in behalf of the Louisiana Railroad Commission, intervener, is aptly descriptive of the growth and development of railroads in that state.
Furthermore, these roads are common carriers when tried by the test of organization for that purpose under competent legislation of the state. They are so treated by the public authorities of the state, who insist in this case that they are such, and submit in oral discussion and printed briefs cogent arguments to justify that conclusion. They are engaged in carrying for hire the goods of those who see fit to employ them. They are authorized to exercise the right of eminent domain by the state of their incorporation. They were treated and dealt with as common carriers by connecting systems of other carriers -- a circumstance to be noticed in determining their true character. United States v. Union Stock Yard & Transit Co., 226 U. S. 286. They are engaged in transportation as that term is defined in the Commerce Act and described in decisions of this Court. Coe v. Errol, 116 U. S. 517; Covington Stock Yds. Co. v. Keith, 139 U. S. 128; Southern Pac. Term. Co. v. Interstate Com. Com., 219 U. S. 493; United States v. Union Stock Yard Co. supra.
them as common carriers, for it has ordered the trunk lines to reestablish through routes and joint rates as to such traffic. But, says the government (and it insists that this fact alone might well control the decision), the roads are owned by the persons who also own the timber and mills which they principally serve.
and the necessity of such roads was dwelt upon and set forth with ample illustration by Commissioner Prouty in his concurring opinion in this case.
As we have said, the Commission, by its order herein, required the trunk lines to reestablish through routes and joint rates as to property to be transported by others than the proprietary owners over the tap lines. This order would of itself create a discrimination against proprietary owners, for lumber products are carried from this territory upon blanket rates applicable to all within its limits. It follows that independent owners would get this blanket rate for the entire haul of their products while proprietary owners would pay the same rate plus the cost of getting to the trunk line over the tap line. The Commission, by the effect of its order, recognizes that railroads organized and operated as these tap lines are, if owned by others than those who own the timber and mills, would be entitled to be treated as common carriers and to participate in joint rates with other carriers. We think the Commission exceeded its authority when it condemned these roads as a mere attempt to evade the law and to secure rebates and preferences for themselves.
authority, and it is its duty, to reach all unlawful discriminatory practices resulting in favoritism and unfair advantages to particular shippers or carriers. It is not only within its power, but the law makes it the duty, of the Commission to make orders which shall nullify such practices resulting in rebating or preferences, whatever form they take and in whatsoever guise they may appear. If the divisions of joint rates are such as to amount to rebates or discriminations in favor of the owners of the tap lines because of their disproportionate amount in view of the service rendered, it is within the province of the Commission to reduce the amount so that a tap line shall receive just compensation only for what it actually does.
* Docket titles of the Tap Line cases are: No. 829, United States and Interstate Commerce Commission v. Louisiana & Pacific Railway Co.; No. 830, Atchison, Topeka & Santa Fe Railway Co. v. Louisiana & Pacific Railway Co.; No. 831, United States and Interstate Commerce Commission v. Woodworth & Louisiana Central Railway Co.; No. 832, Atchison, Topeka & Santa Fe Railway Co. v. Woodworth & Louisiana Central Railway Co., No. 833; United States and Interstate Commerce Commission v. Mansfield Railway & Transportation Co.; No. 834, Atchison, Topeka and Santa Fe Railway Co. v. Mansfield Railway & Transportation Co.; No. 835, United States and Interstate Commerce Commission v. Victoria, Fisher & Western Railroad Co.; No. 836, Atchison, Topeka & Santa Fe Railway Co. v. Victoria, Fisher & Western Railroad Co.

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This page covers legal information specific to the State of Ohio. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.
Generally speaking, the right of publicity in Ohio protects against unwarranted appropriation or exploitation of one's personality. Ohio has two systems of right of publicity law: a statutory right as a property interest, and a common law right as a right of privacy.
Ohio codifies its statutory right of publicity in Ohio Rev. Code Ann. § 2741. You should first familiarize yourself with the statute.
Ohio recognizes the unwarranted appropriation or exploitation of one's personality as an actionable invasion of privacy tort. Housh v. Peth, 133 N.E.2d 340, 341 (Ohio 1956). Ohio's right of publicity statute explicitly states that a right of publicity is a property right. Ohio Rev. Code Ann. § 2741.01(D).
At common law, Ohio has not distinguished the right of publicity from the tort of misappropriation; courts commonly refer to the tort as "appropriation of one's name or likeness." A federal court applying Ohio law said that the "right of publicity is a creature of state law, and its violation gives rise to a cause of action for the commercial tort of unfair competition." ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 928 (6th Cir. 2003).
Ohio's statutory right of publicity is found under Ohio Rev. Code Ann. § 2741, "Right of Publicity in Individual's Persona." Ohio's right of publicity statute expressly states that its provisions are in addition to common law rights. Ohio Rev. Code Ann. § 2741.08.
Ohio Rev. Code Ann. § 2741.01(A). The statute does not define the term "commercial value."
On or in connection with a place, a product, merchandise, goods, services or other commercial activities not expressly exempted under the right of publicity statute.
To advertise or solicit the purchase of products, merchandise, goods, services or other commercial activities not expressly exempted under the right of publicity statute.
To promote travel to a place.
Ohio Rev. Code Ann. § 2741.01.
The Ohio right of publicity statute protects living and deceased natural persons for the duration of a person's lifetime plus 60 years. Ohio Rev. Code Ann. § 2741.02. The statute applies to living individuals domiciled or residing in Ohio; it applies to deceased individuals only if (1) the individual died on or after January 1, 1998, and (2) the individual's domicile or residence was in Ohio at the time of death. Ohio Rev. Code Ann. § 2741.03.
In addition to the 60-year post-mortem protection, the Ohio right of publicity statute specifically prohibits the unauthorized use of the persona of a deceased member of the Ohio National Guard or the U.S. armed forces for ten years after the date of death. Ohio Rev. Code Ann. §§ 2741.02(A)(3) and 2741.99. The Ohio statute provides both civil remedies and criminal penalties for violations of the provisions. Ohio Rev. Code Ann. § 2741.99.
operation of the laws of intestate succession applicable to the state administering the majority of the real and personal property of an individual who died intestate, regardless of whether that state recognizes the right of publicity as a property right.
Ohio Rev. Code Ann. § 2741.04.
The statute requires that any consent to use an individual's right of publicity for a commercial purpose be made in writing, which includes written, electronic, digital or any other verifiable means of authorization. Ohio Rev. Code Ann. § 2741.05. Consent may be given by any person or persons (including the individual whose right of publicity is at issue) who (1) collectively own more than 50% of the right of publicity, or (2) is expressly authorized in writing to grant consent by the collective owner(s) of more than 50% of the right. Ohio Rev. Code Ann. § 2741.05(A).
The following persons may bring a civil action to enforce the publicity rights set out in the Ohio statute: (1) a person or persons, including an individual whose right of publicity is at issue, who collectively own all of an individual's right of publicity, subject to any licenses regarding that right of publicity; (2) a person, including a licensee of an individual's right of publicity, who is expressly authorized in writing by the owner or owners of an individual's right of publicity to bring a civil action; (3) a person to whom ownership or any portion of ownership of an individual's right of publicity has been transferred. Ohio Rev. Code Ann. § 2741.06(A).
Before bringing an civil action, a person who holds partial ownership of an individual's right of publicity must give notice to that person and to any other person to whom ownership has been transferred. That individual, and any other transferees of the right, may object to the proposed civil action within time frames set forth in the statute. If holders of more than fifty percent (50%) of the right of publicity object in a timely fashion, the action may not proceed. Ohio Rev. Code Ann. §§ 2741.06(B), (C).
Ohio Rev. Code Ann. § 2741.02.
Mere incidental use of a person's name or likeness is not actionable. Vinci v. American Can Co., 591 N.E.2d 793 (Ohio 1990).
Ohio recognizes a common law cause of action for the unauthorized commercial use of a living person's name, likeness or identity as a right of privacy. Zacchini v. Scripps-Howard Broad. Co., 351 N.E.2d 454 (Ohio 1976), rev'd on other grounds, 433 U.S. 562 (1977). "The fundamental wrong is the appropriation for one's self of the benefits of another's name, likeness, or identity, and the wrong is the same whether or not that benfit is pecuniary." Id. at 458. That court held that the applicable principles of the tort were set out in the Restatement of Torts (Second) § 652C.
"The right of publicity is an intellectual property right of recent origin which is the inherent right of every human being to control the commercial use of his or her identity." ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 928 (6th Cir. 2003) (internal citations omitted).
Ohio's common law right of publicity protects natural persons, but does not extend to deceased persons. See Reeves v. United Artists, 765 F.2d 79 (6th Cir. 1983), Young v. That Was The Week That Was, 423 F.2d 265 (6th Cir. 1970).
Use of another person's name or likeness.
The use or benefit of a person's name does not have to be commercial. Zacchini v. Scripps-Howard Broad. Co., 351 N.E.2d 454, 458 (Ohio 1976), rev'd on other grounds, 433 U.S. 562 (1977): "The interest which the law protects is that of each individual to the exclusive use of his own identity, and that interest is entitled to protection from misuses whether the misuse is for commercial purposes or otherwise."
A defendant must have appropriated the reputation, prestige, social, or commerical standing, public interest, or other values of a person's name or likeness. Brooks v. American Broadcasting Co., 727 F. Supp. 431 (N.D. Ohio 1991), aff'd, 999 F.2d 167 (6th Cir. 1991), cert. denied, 510 U.S. 1015 (1993).
Ohio Rev. Code Ann. § 2741.07.
As noted above, the statutory remedies are supplemental to any other remedies provided by state or federal statute or common law. Ohio Rev. Code Ann. § 2741.07.
Ohio Rev. Code Ann. § 2741.07(A)(1)(b).
Under the Ohio statute, a court may award treble damages against the owners or employees of any advertising medium in which an advertisement or solicitation is published or disseminated, is there is a finding that the owners or employees had knowledge of the unauthorized use of the persona. Ohio Rev. Code Ann. §§ 2741.02(E) and 2741.07(B)(2).
Civil remedies under Ohio common law include actual damages and injunctive relief. The court in James v. Bob Ross Buick, Inc., 855 N.E.2d 119, 124 (Ohio Ct. App. 2006), held that a plaintiff need not establish actual damages to prevail on a misappropriation of name claim, and a may seek to recover nominal, compensatory, and if appropriate, punitive damages for claims of misappropriation.
All right of publicity claims, whether under the statute or common law, are limited by the First Amendment's free speech defenses, such as those related to public figures and manners of public interest.
The Ohio right of publicity statute specifically exempts use of an individual's persona in	a literary work, dramatic work, fictional work, historical work, audiovisual work, or musical work regardless of the media in which the work appears or is transmitted, other than an advertisement or commercial announcement not exempt; material that has political or newsworthy value; original works of fine art; or an advertisement or commercial announcement for a use permitted in any of these works. Ohio Rev. Code Ann. § 2741.09 (A)(1).
an individual's persona solely in the individual's role as a member of the public if the individual is not named or otherwise singled out.
an individual's persona that is protected by the First Amendment to the Constitution as long as the use does not convey or reasonably suggest endorsement by the individual whose persona is at issue.
Ohio Rev. Code Ann. § 2741.09(5),(6).
The statute also permits use of a deceased individual's persona for a commercial purpose if the name of the individual was the name of a business entity or a trade name at the time of the individual's death. Ohio Rev. Code § 2741.02(B)(2).
As noted above, mere incidental use of a person's name or likeness is not actionable. Vinci v. American Can Co., 591 N.E.2d 793 (Ohio 1990).
In Zacchini v. Scripps-Howard Broad. Co., the Supreme Court held that there is no consitutional privilege immunizing television stations from damages for an alleged infringement of the right of publicity which a performer has in his particular commercial activity. 433 U.S. 562, 578 (1977).
There is a legitimate public interest exception for the right of publicity. Bosley v. Wildwett.com, 310 F.Supp.2d 914, 920 (N.D. Ohio 2004), injunction stayed pending appeal, 2004 WL 1093037 (6th Cir. 2004). There is no misappropriation when a person's name or likeness is used in contact of general news reporting. Brooks v. American Broadcasting Co., 737 F. Supp. 431 (N.D. Ohio 1991).
An action must be brought within four years of a violation. Ohio Rev. Code Ann. § 2741.07(C).
A four year statute of limitations applies to Ohio's common law right of publicity actions under the invasion of privacy tort. Ohio Rev. Code Ann. § 2305.09(D).


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Touted as a "crowd-sourced" constitutional revision by many, including the NYT (international edition), the national referendum on Iceland's draft constitution was completed last week, with less than 50% turnout and all queries answered affirmatively, according to the Iceland Review.
Two pieces of recent scholarship provide necessary perspective to these developments in Icelandic constitutionalism.
In his brief essay, Grassroots Constitutional Politics in Iceland, available on ssrn, Paul Blokker reminds us that the "Icelandic Constitution has since its adoption in 1944 been understood as a transitory document by many, even if this status has never translated into wholesale revision or substitution of the document."
Does financial regulation belong in constitutions? Or is it enough to confine such regulation to laws? – which, to date, is near-universal practice.
This is a fair question, especially in a country that has recently gone through one of the worst financial crashes on record, with grave consequences for many households and firms at home and elsewhere.
Protestors in Austurvöllur square in front of Alþingishús - the Icelandic parliament house in early 2009.
Gylfason also has some intriguing thoughts about the participation of legal education in the process of constitutionalism as well as the importance of Iceland's experience for other constitutional democracies. Definitely worth a read for anyone engaged in constitutional theory, even if one has not been following the developments in Iceland.
Over at Jotwell, UK Law Prof Toni Williams (pictured) has a review entitled "Getting Rights Right," considering Daniel M. Brinks & Varun Gauri, Law's Majestic Equality? The Distributive Impact of Litigating Social and Economic Rights, World Bank Development Research Group Working Paper 5999 (March 2012), available on ssrn.
To investigate the distributive impact of socio-economic rights litigation is, of course, to engage with well-established and often-repeated findings about litigation processes and courts as tending either to favour the rich and powerful, the “haves” of the societies in which they are situated, or, more likely, to be ineffectual. Brinks and Gauri believe that such claims about the regressive impact and impotence of rights litigation over-generalise from a limited number and narrow range of courts, cases, constitutions and countries. They claim that a more systematic analysis, taking into account variation between different types of cases and characteristics of courts, shows that litigating social and economic rights may sometimes yield robustly pro-poor effects, at least in the areas of health care provision and education.
For those seeking a more global view of rights litigation than is so often present in US conversations, Williams' suggestion is an important one.
The Supreme Court heard oral arguments today in Clapper v. Amnesty International, the case testing the plaintiffs' standing to challenge the government's vastly expanded surveillance authority under the FISA Amendments Act, or the FAA. We posted on the lower court ruling that a group of attorneys, journalists, and human rights organizations had standing to challenge the FAA here.
The plaintiffs always faced a unique standing problem in challenging the FAA: The very nature of government surveillance says that those surveilled cannot know that they've been surveilled, or harmed, especially when the real targets of the surveillance are the plaintiffs' overseas clients and contacts (and not immediately the plaintiffs themselves). As a result, the plaintiffs had to argue two kinds of harm to satisfy standing requirements: (1) that they've had to take current measures to ensure against FAA surveillance and (2) that their communications are imminently going to be surveilled (given the nature of them).
In all, the government's argument came across as overly formalistic, especially considering the very high stakes for the plaintiffs. The Court's questions seemed to highlight that.
On the other side, there was some back-and-forth on just how certain government surveillance must be to create a sufficiently likely harm--"certainly impending," or "substantial risk." Chief Justice Roberts pushed for the former (and higher) standard, while Justice Kennedy pointed out that in those cases where we knew the government act was occurring (as here) the standard was the lower "substantial risk." Justice Alito asked whether the plaintiffs might manufacture their own standing (and thus work an end-run around a higher "certainly impending" standard) by alleging current preventative measures as the harm--just as the plaintiffs did here. As to the threat of surveillance and the plaintiffs' precautions against that threat, Chief Justice Roberts wondered whether that wasn't a harm in every case, e.g., in an ordinary criminal case when a criminal defense attorney seeks to get information from his or her client. (The attorney wouldn't use e-mail or phone; he or she would talk in person.) Finally, Justice Scalia asked whether the FISA court didn't serve as a check on Fourth Amendment violations.
If the government's argument was overly formalistic, the plaintiffs' claimed harms might have seemed too vague to some on the Court, especially if the Court adopts the higher "certainly impending" standard for the plaintiffs' claimed future harms.
Arguments today revealed what we already knew about this case: It'll be close. But on balance, the Court seemed to favor standing.
To be William Rehnquist was to consider one's self misunderstood—and with good reason. Rehnquist often appeared to be living in a private world of his own invention, and probing strangers were not welcome. . . .
Even as a young man in the 1950s, Rehnquist boldly preached an uncompromising brand of conservatism, and he espoused views—and acted on them—that were racist even by the standards of that era. Confronted later in the Senate, he took a disingenuous approach with his critics, lying his way out of trouble. Having taken his knocks in two brutal confirmation hearings, he deeply mistrusted the press, and he did his best to frustrate coverage or, failing that, to keep the stories about him one dimensional.
Reviewing the book in the LA Times, Jim Newton argues that the book does ignore some of the ways in which Rehnquist did "reconsider some views, most notably in the area of the Miranda case, which Rehnquist deplored for years but then upheld in 2000, concluding that it had become so enmeshed in American law and society that it would be improper to overrule it."
If Rehnquist were alive and serving today, he'd be a moderate on the court, outflanked to his right by Justices Antonin Scalia, Clarence Thomas and, arguably, Samuel Alito and Chief Justice John Roberts. Even Rehnquist would have found that hard to imagine.
A three-judge panel of the Fifth Circuit in NRA v. ATF upheld the federal ban on gun sales by federal firearms licensees to those under 21 years of age against a Second Amendment challenge. Notably, the court ruled that the ban didn't even touch activity protected by the Second Amendment (and it therefore didn't violate the Second Amendment). But, the court ruled, even if it did touch activity protected by the Second Amendment, it did not violate the Second Amendment.
This is the first federal circuit court ruling on these federal provisions and only the second federal court ruling on them. (The first, a 2008 district court ruling from the Western District of Texas, held the provisions constitutional under an intermediate scrutiny standard.) Otherwise the ruling breaks no new ground in Second Amendment jurisprudence post Heller and McDonald--it hews closely to the Second Amendment jurisprudential line set by other circuits--and it therefore may be a model and bellwether for other cases challenging these provisions.
The NRA will certainly seek en banc review, and the ultimate loser at the Fifth Circuit will undoubtedly seek cert. The case presents a good candidate for the Supreme Court to set and to apply a Second Amendment standard (on the one hand), but it's almost surely too soon, without any other circuit ruling on the provisions (on the other). At the end of the day, the Supreme Court is unlikely to take this one up, so long as any final ruling from the Fifth Circuit reflects the kind of cautious, well-within-bounds approach of this panel.
The federal provisions, 18 U.S.C. Secs. 922(b)(1) and (c)(1), together prohibit federally licensed firearms dealers from selling handguns to persons under the age of 21. The NRA sued with a couple individual named plaintiffs and argued that the restriction violated the Second Amendment.
Op. at 10 (quoting Heller at 626-27) (emphasis added). The two-step inquiry asks: (1) Does the challenged law impinge upon a right protected by the Second Amendment? and (2) Does intermediate scrutiny or strict scrutiny apply?
the conduct at issue falls outside the Second Amendment's protection. At a high level of generality, the present ban is consistent with a longstanding tradition of targeting select groups' ability to access and to use arms for the sake of public safety. More specifically, the present ban appears consistent with a longstanding tradition of age- and safety-based restrictions on the ability to access arms. In conformity with founding-era thinking, and in conformity with the views of various 19th-century legislators and courts, Congress restricted the ability of minors under 21 to purchase handguns because Congress found that they tend to be relatively immature and that denying them easy access to handguns would deter violent crime.
Op. at 26-27. Thus the court ruled that it didn't even need to get to the second question.
But just in case, it did. On the second question, the court applied intermediate scrutiny and held that curbing violent crime by those under 21 constitutes an important government objective and that the sales ban--not a blunter possession ban--adequately served that end.
In its opinion in American Freedom Defense Initiative v. Suburban Mobility for Regional Transportation (SMART), the Sixth Circuit upheld SMART's rejection of advertisements for city buses.
The potentional advertising group, American Freedom Defense Initiative, is indeed the same one whose advertisements on NYC subways caused controversy last month. The Sixth Circuit, unlike the district judge in New York, rejected the Intiative's First Amendment claim when it challenged the refusal to run its advertisements. In large part, the distinction between the two situations rests upon the policies of the transportation agencies.
According to the complaint, AFDI “acts against the treason being committed by national, state, and local government officials . . . in their capitulation to the global jihad and Islamic supremacism.” Compl. ¶ 7. The complaint explains that AFDI “promotes its political objectives by, inter alia, sponsoring anti-jihad bus and billboard campaigns, which includes seeking advertising space on SMART vehicles.” Id. ¶ 8. By its own admission, therefore, AFDI sought to place advertisements on the SMART vehicle to “promote its political objectives.” Moreover, by denying the placement of the fatwa advertisement, AFDI alleges that SMART “denied Plaintiffs’ advertisement, and thus denied Plaintiffs access to a public forum to express their political and religious message.” Id. ¶ 21. AFDI understood its own advertisement to contain a political message; therefore, it would be reasonable for SMART to read the same advertisement and reach the same conclusion.
Doctrinally, SMART's ability to enforce a political exclusion rests upon the court's acceptance of the city buses as nonpublic forums. Yet there is some circularity here: SMART's "tight control" over the advertising space, as well as the fact that it "has banned political advertisements, speech that is the hallmark of a public forum" support the court's conclusion.
The panel recognized that there are close calls, and even suggested an advertisement that would not be political, but ultimately validated SMART's call as correct and consistent with its practices.
In an interview in Rolling Stone, President Obama responds to a query about the future of the constitutional right to abortion.
I don't think there's any doubt. Governor Romney has made clear that's his position. His running mate has made this one of the central principles of his public life. Typically, a president is going to have one or two Supreme Court nominees during the course of his presidency, and we know that the current Supreme Court has at least four members who would overturn Roe v. Wade. All it takes is one more for that to happen.
Obama also responds to questions about NFIB v. Sebelius, the Affordable Health Care Act opinion, including Justice Roberts' role.
Judge Rudolph Contreras (D.D.C.) reminded us this week in Harris v. United States Supreme Court that a federal district court has no power to review a decision of the Supreme Court.
Judge Contreras quoted Justice Jackson--"We are not final because we are infallible, but we are infallible only becuase we are final," Brown v. Allen (1953)--in dismissing a case brought by a disappointed basketball player who didn't make the cut for the Tulsa 66ers. The player first sued in the Northern District of Oklahoma and took his case all the way to the Supreme Court. Alas, the Court declined to hear his case.
So he naturally sued the Court itself in the D.C. district. No luck, wrote Judge Contreras: a district court has no power to review a decision of the Supreme Court.
The current controversy in the UK over voting by persons who are presently incarcerated and the imminent US election again raise questions regarding the general US policy of disenfranchisement by persons convicted of felonies (even if not incarcerated), a topic we've previously addressed here and here.
Ruvi Ziegler's 2011 article, Legal Outlier, Again? US Felon Suffrage: Comparative and International Human Rights Perspectives, 29 Boston University International Law Journal 197, available on ssrn, situates the US practices and doctrine within international human rights and comparative constitutional law perspectives.
Ziegler concludes that defending the "rights of convicts is hardly a popular task. However,defending their right to vote means, inter alia, defending the substantivedemocratic legitimacy of criminal law, which labels certain community members as convicts by proscribing their acts and which sanctions the imposition of punishments. Convicts’ disenfranchisement is a hurdle on the path towards the democratic project’s successful completion. It can and should be removed."
This is worth a read for any scholar or student pondering the relationship between the fundamental right to vote and punishment.
It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be.
In 2009, the ECHR expressed "serious concern" that the Hirst judgment had not been implemented.
And it seems that PM Cameron is voicing his opinion that Hirst will never be implemented - at least under his government.
Excellent reporting from The Guardian here, with details of the debates here.
A three-judge panel of the Ninth Circuit ruled in OSU Student Alliance v. Ray that a conservative student newspaper at Oregon State sufficiently alleged constitutional claims against university officials after they removed the newspaper's distribution bins from around campus and limited the locations where the newspaper could replace the bins. The ruling reverses a lower court ruling dismissing the case, allows the plaintiffs to amend their complaint as to certain defendants, and means that the case will move forward on the merits.
The case arose when Oregon State officials removed distribution bins of the conservative Liberty newspaper, published by the Student Alliance. Officials did not similarly remove distribution bins of the official student newspaper, the Daily Barometer, or outside newspapers (like USAToday). Officials claimed that they were enforcing an unwritten policy prescribing the acceptable campus locations for outside newspaper distribution bins. Officials treated the Liberty as an outside newspaper, even though it has a student editorial staff, because its funding came almost exclusively from outside sources--donations and advertising. In contrast, the Daily Barometer received university funding through the student government. Officials said that this distinction explained why they treated Liberty bins differently than Daily Barometer bins, but it obviously didn't explain why it treated Liberty bins differently than USAToday bins.
The newspaper sued under 42 U.S.C. Sec. 1983, arguing that four university officials--the president, a vice-president, the vice-provost for student affairs, and the director of facilities services--violated their rights to free speech, due process, and equal protection. The district court dismissed the claims for injunctive and declaratory relief after the school changed its policy; and it dismissed the claims for damages because the plaintiffs didn't plead that any of the four defendants participated in the confiscation of the newsbins.
The Ninth Circuit reversed. It ruled that the plaintiffs sufficiently pleaded that the certain defendants "caused" a "deprivation of federal right" and remanded to allow the plaintiffs to replead as to others.
As to the deprivation, the court said that the OSU campus is "at least a designated public forum," that the unwritten "policy" left university officials with unbridled discretion (alone enough to doom the policy), and that any standard (identified only post hoc) that distinguished between on-campus and outside publications bore no relationship to the school's interest in reducing clutter around campus. "OSU's standardless policy cannot qualify as a valid time, place, and manner restriction." Op. at 12778. And the plaintiffs correctly pleaded that it was viewpoint discrimination.
The court also said that the plaintiffs sufficiently pleaded an equal protection violation, because they pleaded that the university treated them differently than a similarly situated newspaper in a way that trenched on a fundamental right (free speech). It also said that the plaintiffs adequately pleaded that the defendants removed their bins without prior notice in violation of due process.
The court wrote that the complaint sufficiently tied the director of facilities to the due process violation--that he was responsible for the unwritten bin policy, and that the confiscation happened pursuant to the policy--but that it didn't sufficiently tie the president and vice-president to the policy.
As to the vice-provost, the court said that the complaint didn't sufficiently allege that he knew of the free speech violations and that he wasn't sufficiently tied to the due process violation.
The court remanded the case to allow the plaintiffs to amend their complaint to bring in the president and the vice-president on the due process claims and the vice-provost on any claims.
Judge Ikuta dissented in part, arguing that the majority's approach as to the president and vice-president "resurrects the very kind of supervisory liability that Iqbal interred."
A "daily read" worth watching: Richard Posner (pictured) presented his lecture "How I Interpret Statutes and the Constitution" via video for Columbia Law Federalist Society's Madison Lecture Series on Judicial Engagement.
Posner speaks about originalism and living constitutionalism, proposing his own "middle-ground theory of interpretation that emphasizes common sense and analytic simplicity."
The Supreme Court today rejected an application to vacate the Ninth Circuit's stay of District Judge Lovell's earlier decision that Montana's low campaign contribution limits violated the First Amendment. (Thanks to Emily Phelps over at the Constitutional Accountability Center's Text and History Blog for the tip.) This latest ruling in Lair v. Bullock means that Montana's contribution limits will remain in place pending appeal to the Ninth Circuit and, in particular, through the election. All signs now point to a Ninth Circuit reversal of Judge Lovell's ruling that the contribution limits violated the First Amendment.
Our most recent post on the case, with links to earlier decisions and background, is here. Phelps's post at CAC's Text and History blog, with more on the political context of the case, is here.
In a divided opinion today, New York's highest court denied a tax exemption for an adult juice bar in In the Matter of 677 New Loudon v. State of NY Tax Appeals Tribunal. The juice bar, at which there are dance performances, argued that admission fees should not be taxed under the rules governing a "place of amusement in the state" but included in the exemption for "dramatic or musical arts performances." The majority rejected this contention in less than 5 pages.
Like the majority and the [Tax] Tribunal, I find this particular form of dance unedifying -- indeed, I am stuffy enough to find it distasteful. Perhaps for similar reasons, I do not read Hustler magazine; I would rather read the New Yorker. I would be appalled, however, if the State were to exact from Hustler a tax that the New Yorker did not have to pay, on the ground that what appears in Hustler is insufficiently "cultural and artistic." That sort of discrimination on the basis of content would surely be unconstitutional (see Arkansas Writers' Project, Inc. v Ragland, 481 US 221, 229-230 ). It is not clear to me why the discrimination that the majority approves in this case stands on any firmer constitutional footing.
It is easy to imagine the attorneys for the adult juice bar considering a petition for writ of certiorari to the United States Supreme Court raising First Amendment claims, although the constitutional status of dancing as expressive speech is not as firmly established as that of newspapers.
Over at SCOTUSBlog, ConLawProf Ron Collins has a terrific Q & A with Jeffrey Toobin about Toobin's latest book, The Oath.
In The Oath you refer to Justice Clarence Thomas [pictured] as a “conservative intellectual path-breaker.” You mention this in the context of some of his First Amendment opinions. Of the 29 First Amendment free expression opinions rendered by the Roberts Court, however, Justice Thomas has authored only two majority opinions, neither of which was path-breaking. (See Reichle v. Howards, 2012 (8-0) and Washington State Grange v. Washington State Rep. Party, 2008 (7-2)).
In what sense, then, do you seem him as a First Amendment “path-breaker”? Which of his separate opinions do you see as point the path to future First Amendment precedents?
Still, I think Thomas’s concurrence in McIntyre v. Ohio Elections Commission and his dissent in Nixon v. Shrink Missouri Government PAC include themes that are clearly reflected in Justice Kennedy’s decision in Citizens United.
Collins and Toobin also discuss Roberts on affirmative action and the Court's work load. An interesting read!
Judge John D. Bates (D.D.C.) dismissed the habeas corpus claims of detainees at Bagram Airfield (Afghanistan) last week in Al Maqaleh v. Gates. The ruling is the latest chapter in the detainees' quest to challenge their detentions by way of habeas in federal court, just as Guantanamo detainees won the right to challenge their detention by way of habeas in Boumediene v. Bush. The detainees may appeal, but their chances seem slim, at best, especially given the history of the case.
Recall that Judge Bates originally ruled that Bagram detainees enjoyed the privilege of habeas in 2009. Judge Bates wrote that with technology the courts could hear Bagram detainees' habeas claims just as easily as they could hear Guananamo detainees' claims, and that habeas claims wouldn't unduly disrupt the government's prosecution of the war. But the D.C. Circuit reversed, saying that Bagram was fundamentally different than Guantanamo. The D.C. Circuit ruled that Bagram was in an active war zone, that the government didn't have the kind of control over Bagram that it had over Guantanamo, and that habeas claims risked interfering with the government's prosecution of the war.
This latest case arose when the same Bagram detainees argued that certain developments at Bagram undermined the D.C. Circuit's ruling. In particular, the Bagram detainees argued that new evidence showed that the government intends to stay at Bagram indefinitely; that recent criminal trials at Bagram showed that practical obstacles to litigation are far less serious than the D.C. Circuit believed; that the government was attempting to avoid habeas jurisdiction by detaining prisoners at Bagram; and that procedures used to determine the detainees' status are unacceptable.
Judge Bates rejected these claims, in short disagreeing with the detainees' interpretation of their new evidence, or saying that their "new" evidence wasn't new at all--that it was fully available to the D.C. Circuit when the D.C. Circuit issued its earlier ruling.
Judge Bates also rejected the habeas claim in a companion case brought by a minor, Hamidullah v. Obama. Hamidullah argued that his age set him apart from the others, because habeas is "somewhat more robust" for minors. Judge Bates ruled that he failed to support this argument.
The case likely marks the end of the line for Bagram detainees. Even if they appeal, given the D.C. Circuit's ruling and Judge Bates's most recent ruling, they're likely to lose.
George McGovern, former United States Senator and 1972 Presidential nominee, died yesterday at the age of 90.
I think that liberalism has been so battered by its critics that people have almost become self-conscious about using the word. I don`t feel self-conscious about it because I think Thomas Jefferson was a liberal. Thomas Paine was a liberal. James Madison was a liberal. These early Founders, the ones who were really the deep thinkers, I think had a liberal streak through them. Now, they also had some conservative streaks. And I`m not against the conservative traditions. In fact, in my book, I say that the genius of American politics is the creative tension that exists between conservatism, on the one hand, and liberal on the other. My dad and mother lived and died as conservative Republicans. I had some pretty good arguments with them in later life, but I respect both of those traditions. And I don`t think people ought to be ashamed to say, I am a conservative, I am a liberal. I respect both traditions.
A liberal in today`s world, and the definition has changed with the passage of time, but I would say a 20th century liberal or 21st century, now, liberal, is one who believes in a positive federal government that takes concrete measures that are in the interest of the ordinary citizen. A liberal doesn`t -- doesn`t sell out to the special interests. He or she seeks to serve the great American public.
Watching the video interview of McGovern, or reading one of his books, is a worthy way to remember him.

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