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The Complainant is Convergència Democràtica de Catalunya, Barcelona, Spain, represented by Mr. Roger Dedeu Pastor, Spain.
The Respondent is ar mas, Girona, Spain.
The disputed domain name <arturmas.tv> is registered with .tv Corporation International.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 30, 2003. On October 31, 2003, the Center transmitted by email to .tv Corporation International a request for registrar verification in connection with the domain name at issue. On November 11, 2003, .tv Corporation International transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 12, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was December 2, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent�s default on December 3, 2003.
The Center appointed Ángel García Vidal as the sole panelist in this matter on December 10, 2003. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant is the Spanish political party Convergència Democràtica de Catalunya, founded in November 17, 1974, in Barcelona and registered in February 23, 1977.
The political party Convergència Democràtica de Catalunya participates in the local and autonomous elections in the Autonomous Community of Catalunya and at national level in the legislative elections for the Spanish Parliament in Spain, and is part of a coalition with another political party named Unió Democràtica de Catalunya. The coalition is called Convergència i Unió.
The candidate of Convergència i Unió for the Autonomous community elections for year 2003 was Mr. Artur Mas. Since the year 2000, and with a view to the electoral campaign for the elections to the Autonomous Community of Catalunya, the bureau of the Convergència Democràtica de Catalunya party (with the explicit consent of the candidate Mr. Artur Mas) obtained the domain names <arturmas.com>, <arturmas.net>, <arturmas.org>, <arturmas.info>, and <arturmas.biz>, in order to promote the candidate Mr. Artur Mas on the Internet as an essential part of his electoral campaign.
On April 22, 2003, the domain name <arturmas.tv> was registered with .tv Corporation International. The registrant used a false name since "arm as" is neither a real name or surname. Furthermore, neither the street address provided in the Whois page or the telephone number exist in real life.
The domain name <arturmas.tv> is devoted basically to parody and to discredit Mr. Artur Mas.
Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy is applicable to the disputed domain name.
In relation to element (i) of paragraph 4(a) of the Policy, the Complainant indicates that the Convergència Democràtica de Catalunya party whose leader is Mr. Artur Mas, requested the domain names that correspond to his name, but omitted to request the <arturmas.tv> domain name. The Complainant asserts that the party Convergència Democràtica de Catalunya has previously registered the domain names <arturmas.com>, <arturmas.net>, <arturmas.org>, <arturmas.info>, and <arturmas.biz> before the Respondent registered the <arturmas.tv> domain name. The Complainant asserts that the Respondent�s intention with the acquisition of this domain name is to confuse anyone who, through a search engine seeks information about the politician Mr. Arthur Mas.
In relation to element (ii) of paragraph 4(a) of the Policy, the Complainant indicates that it is evident that the Respondent in this procedure does not have a legitime interest in the <arturmas.tv> domain name, as the registrant, using a false identity, aims to confuse persons seeking information about Mr. Artur Mas and to criticise both Mr. Mas and the political party which he represents.
Lastly, in relation to element (iii) of paragraph 4(a) of the Policy, the Complainant indicates that the domain name <arturmas.tv> has been registered and is being used in bad faith, since the registrants mere goal is to frustrate the candidacy of Mr. Artur Mas in the elections for the Presidency of the Generalitat of Catalunya, which were held in November 16, 2003.
"164. The views of commentators on the desirable scope of the administrative procedure were divided. Certain commentators favored the broad approach of opening the procedure to any intellectual property dispute with respect to a domain name registration. In general, they favored the development of a body of administrative law that would, through the procedure, provide an effective international enforcement mechanism for intellectual property rights as an alternative to expensive and time-consuming multijurisdictional litigation.
165. The preponderance of views, however, was in favor of restricting the scope of the procedure, at least initially, in order to deal first with the most offensive forms of predatory practices and to establish the procedure on a sound footing. Two limitations on the scope of the procedure were, as indicated above, favored by these commentators.
167. The second limitation would define abusive registration by reference only to trademarks and service marks. Thus, registrations that violate trade names, geographical indications or personality rights would not be considered to fall within the definition of abusive registration for the purposes of the administrative procedure. Those in favor of this form of limitation pointed out that the violation of trademarks (and service marks) was the most common form of abuse and that the law with respect to trade names, geographical indications and personality rights is less evenly harmonized throughout the world, although international norms do exist requiring the protection of trade names and geographical indications.
168. We are persuaded by the wisdom of proceeding firmly but cautiously and of tackling, at the first stage, problems which all agree require a solution."
It is clear from this Report that personality rights were not intended to be made subject to the proposed dispute resolution procedure. In adopting the procedure proposed in the WIPO Report, ICANN did not vary this limitation on its application. It must be concluded, therefore, that ICANN did not intend the Policy to apply to personality rights.
"199. It is clear that many sensitivities are offended by the unauthorized registration of personal names as domain names. It is clear also that the UDRP does not provide solace for all those offended sensitivities, nor was it intended to do so, as originally designed. The result is that there are some perceived injustices. Persons who have gained eminence and respect, but who have not profited from their reputation in commerce, may not avail themselves of the UDRP to protect their personal names against parasitic registrations. The UDRP is thus perceived by some as implementing an excessively materialistic conception of contribution to society. Furthermore, persons whose names have become distinctive in countries that do not recognize unregistered trademark rights are unlikely to find consolation in the UDRP in respect of bad faith registration and use of their personal names as domain names in those countries.
200. Nevertheless, we believe that the views expressed by the majority of commentators against the modification of the UDRP to meet these perceived injustices are convincing at this stage of the evolution of the DNS and the UDRP."
There are a number of cases under the Policy in which the complainant has successfully based a complaint on the complainant�s personal name. In some of these cases the personal name was registered as a trademark (e.g. Madonna Ciccone, p/k/a Madonna v. Dan Parisi and "Madonna.com", WIPO Case No. D2000-0847). In other cases the complainant, as a famous or at least widely known person, has unregistered trademark or service mark rights. Panels have noted that common law trademark rights exist under United States trademark law or under other national trademark laws, which is sufficient for the purposes of paragraph 4(a)(i) of the Policy (Julia Fiona Roberts v. Russell Boyd, WIPO Case No. D2000-0210; Cho Yong Pil v. ImageLand, Inc., WIPO Case No. D2000-0229; Jeanette Winterson v. Mark Hogarth, WIPO Case No. D2000-0235; Hunton & Williams v. American Distribution Systems, Inc. et al., WIPO Case No. D2000-0501; Daniel C. Marino, Jr. v. Video Images Productions, et al., WIPO Case No. D2000-0598). In these cases the Complainant proved that the personal name in question was used as a marketable commodity, allowing his or her name to be used for a fee, to promote someone else�s goods or services, or for direct commercial purposes in the marketing of his or her own goods and services.
In order to prove that the domain name at issue is identical or confusingly similar to a trademark or service mark in which the Complainant has rights, the Complainant points out that the registration of the Complainant�s domain names (<arturmas.com>, <arturmas.net>, <arturmas.org>, <arturmas.info>, and <arturmas.biz>) precedes the registration of the Respondent�s domain name <arturmas.tv>. Nevertheless, paragraph 4(a)(i) of the Policy states that the Complainant must have rights in a trademark or service mark. Possession of one or more domain names does not as such meet this requirement.
Therefore, the Complainant has not proved the first of the conditions stated in paragraph 4(a)(i) of the Policy.
In connection with criteria 2 and 3 under paragraph 4(a)(ii) and (iii), the Panel notes, inter alia, that the Respondent has not provided any explanation in this case and that the Respondent has supplied a false name and an incorrect contact information when registering the domain name. A number of prior Panels have found that deliberately furnishing false contact information to a disputed domain name registrar can constitute bad faith in registration and use. (See, for example, Home Director, Inc. v. HomeDirector, WIPO Case No. D2000-0111; Verio Inc. v. Sunshinehh, WIPO Case No. D2003-0255; Grupo Televisa, S.A., de C.V et al. v. Autosya S.A. de C.V., et al., WIPO Case No. DTV2001-0007).
Even so, whatever may be the situation with regard to elements (ii) and (iii) of the paragraph 4(a) of the Policy, the Complainant has not proved the first of the elements stated in paragraph 4(a) of the Policy. The Complainant has failed to prove that it is the owner of a trademark or service mark (registered or not) formed by the words "Artur Mas". This Panel has no doubt that Mr. Artur Mas is a famous Spanish politician, but the Policy and Rules which bind this Panel do not allow to rule that the domain name <arturmas.tv> be transferred to the Complainant.

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Executive Order 13800, Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure requires this report to “describe the legal…considerations…relevant to…” transitioning agencies to consolidated network infrastructures or shared services. Exec. Order No. 13,800, 82 FR 22391, § 1(c)(vi)(B)(2) (May 11, 2017). This appendix, along with the report itself, does so. The report suggests increased use of consolidated network architectures and shared services. Generally, Federal law contemplates that agencies control their own systems and information either directly or through contract. Moving to consolidated network architectures, commercial cloud and shared services generally involves moving away from agency control and thus tends to increase tension with relevant law and requires greater analysis and legal documentation. While additional legal review and documentation would need to be performed during any eventual development of the consolidated network architectures, commercial cloud, and shared services based on their exact facts, implementation of the report’s recommendations can likely be achieved within existing law in most instances, as long as they are designed with a view toward satisfying applicable legal requirements. A summary of some of the main areas of law and legal issues implicated by this report are discussed below.
The Federal Information Security Modernization Act of 2014 (FISMA) and later amendments are codified in subsection II of chapter 35 of title 44 of the U.S. Code. These provisions, which we will refer to here as FISMA, create a whole-of-Government approach to Federal information security1 pursuant to which OMB oversees agency information security policies and practices; DHS administers implementation of these policies and practices for Federal, civilian, executive-branch agencies, including by assisting agencies and providing certain Government-wide protections; and agencies are responsible for providing information security protections commensurate with the risk and magnitude of the potential harm to their agency information and information systems. See 44 U.S.C. §§ 3551-3558. FISMA also requires agencies to implement a minimum set of information security controls and techniques, assess the effectiveness of these controls, comply with NIST standards, DHS directives, and OMB policies, and report certain cybersecurity information to DHS, OMB and to Congress. The consolidated network architectures, commercial cloud, and shared services recommended in this report will need to provide levels of security and transparency that enable agency heads to ensure compliance with FISMA and its related requirements, while also providing technical solutions that fit the needs of multiple agencies.
The Homeland Security Act, as amended, requires DHS to “deploy, operate, and maintain” and “make available for use by any agency” capabilities to detect cybersecurity risks in agency network traffic and take actions to mitigate those risks. 6 U.S.C. § 151(b)(1). DHS currently provides these capabilities through its EINSTEIN program and, as required by law, ensures all retention, use, and disclosure of information obtained through EINSTEIN occurs only for the purpose of protecting information and information systems from cybersecurity risks. See id. § 151(c)(3). Federal law also requires agencies to apply these capabilities to “all information traveling between an agency information system and any information system other than an agency information system.” Id. § 151, note. Because this statutory mandate defines “agency information system” as any “system owned or operated by an agency,” the statutory mandate itself does not always require agencies to apply those capabilities to systems operated by contractors. But existing policy requires broader application of EINSTEIN, and DHS and agencies can choose to apply the capabilities to contractor-operated systems.
There are many provisions of law and regulation that that protect personally identifiable information by, for example, limiting access. See, e.g., U.S. Const. amend IV; Fed. R. Crim. Pro. 6(e)(2)(B) (grand jury confidentiality rule); 5 U.S.C. § 552a (Privacy Act of 1974); 26 U.S.C. § 6103 (restrictions on access to tax return information); 13 U.S.C. § 9(a) (Census confidentiality statute); 18 U.S.C. § 2511 (Wiretap Act); 6 U.S.C. § 151 (DHS’s Federal Intrusion Detection and Prevention System). Personnel operating consolidated network architectures, commercial cloud, and shared services described in this report will sometimes require access to such information. Technical capabilities and administrative processes will need to be developed to enable compliance with the laws and regulations applicable to each type of information. This will require a significant role for SAOPs and agency privacy programs.
Agencies receive requests for information in their possession through various means, including, for example, Freedom of Information Act (FOIA) requests, Privacy Act requests, congressional requests, Government Accountability Office audits, Inspector General inquiries, court proceedings, requests from the White House or other agencies, and other legal process. Legal agreements between shared service providers and client agencies will be required to define who will be responsible for responding to such requests when the information resides in a shared service in a way that satisfies legal requirements and provides agencies with sufficient control over their own information. Likewise, agency notices and regulations should adequately inform the public and others who might make requests of the appropriate procedures for accessing information.
The Federal Information Technology Acquisition Reform Act (FITARA) increases the authority of agency Chief Information Officers to play a significant role in the planning, programming, budgeting, management, governance and oversight of Federal information technology. 40 U.S.C. § 11319(b)(1)(A). FITARA is consistent with a move toward consolidated network architectures, commercial cloud, and shared services and enhances the legal authority for agency CIOs move in that direction. Among other actions, FITARA and associated policy require agencies to implement data center consolidation strategies that support (i) movement of information technology infrastructure to the as-a-service model and (ii) transition to the cloud. See 44 U.S.C. § 3601, note.
The Economy Act, 31 U.S.C. § 1535, which authorizes Federal agencies to enter into agreements to obtain supplies or services from another Federal agency and requires full reimbursement.


On July 10, 2018, Judge John H. McBryde of the United States District Court for the Northern District of Texas, Fort Worth Division, held an insurer owed no coverage to a New Jersey rock quarry owner for the accidental pumping of crushed rock particles into a stream. The policy’s pollution exclusion precluded coverage, regardless of whether the rocks were “wanted or useful.” Great Am. Ins. Co. v. ACE Am. Ins. Co., No. 4:18-CV-114-A, 2018 WL 3370620, at *5 (N.D. Tex. July 10, 2018). Absent coverage or any injury independent of the claim for policy benefits, the court also rejected the insured’s bad faith claim.
Eastern Concrete Materials, Inc. operates a New Jersey rock quarry, where it crushes rock into small stones and fines. Rock fines are small particles of rocks generated in the crushing process, which are washed off with water and placed into settling ponds. Once settled, the fines are removed, dried out, and prepared for use as reclamation fill at the quarry or sold as fill material.
Anticipating substantial rainfall in July 2017, Eastern lowered the level of its settling ponds by pumping into an adjacent stream. But Eastern’s quarry manager failed to stop the pumping before the rock fines were pumped into the settling ponds. This failure caused many rock fines to be pumped into the stream, and subsequent physical damage to the stream and stream beds. New Jersey government bureaus issued violation notices to Eastern, and required Eastern to remove the rock fines to ensure protection of fish habitats and prevent further migration of the fines.
Eastern notified its insurer, Great American Insurance Company, of the claims and demanded defense and indemnity. Great American then sought a declaratory judgment in Texas federal court. Eastern sued separately in New Jersey state court, arguing the pollution exclusion would be interpreted unfavorably to it in Texas law. But the New Jersey court agreed to stay that action pending the outcome of the Texas action. Great American moved for summary judgment, arguing its “absolute” pollution exclusion precluded coverage and, therefore, it owed no duty to defend or indemnify. Great American argued Eastern’s counterclaims for breach of contract and bad faith should be dismissed for the same reason.
The district court began by determining Texas had the most significant relationship with the substantive issue to be resolved—whether the pollution exclusion applied—because the policy was negotiated, brokered and issued in Texas. Further, Eastern had admitted that its parent, U.S. Concrete, Inc., that purchased the policy was “at home” in Texas. Lastly, the policy covered a group of risks scattered throughout the United States and, therefore, the court gave little weight to the location of the insured risk in determining choice of law.
According to Judge McBryde, the exclusion was “clear, unambiguous, and absolute,” and the term “pollution” is “not a term of art.” Great Am., 2018 WL 3370620 at *5. Instead, “substances can constitute pollutants regardless of their ordinary usefulness.” Id. (citing Nautilus Ins. Co. v. Country Oaks Apts. Ltd., 566 F.3d 452, 455 (5th Cir. 2009) (substance need not generally or usually act as irritant or contaminant to constitute a “pollutant”)). Here, the rock fines were waste material generated in the rock crushing process, and that they were “wanted or useful” did not change their nature. The rock fines also became “irritants or contaminants” when they were discharged and dispersed where they did not belong. Eastern itself had argued the underlying remediation was necessary to protect the environment.
The district court found the exclusion was “fatal” to Eastern’s duty to defend claims. Likewise, because the same reasons negating the duty to defend “likewise negate[d] any possibility that [Eastern] will ever have a duty to indemnify,” Eastern’s duty to indemnify claims failed as a matter of law. Lastly, Eastern argued it should be allowed to replead its bad faith claim under Texas law. But the district court held repleading would not “salvage” the claim. “Where an insurer has properly denied a claim that is in fact not covered, generally there is no claim for bad faith.” Great Am., 2018 WL 3370620 at *6 (citing Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 341 (Tex. 1995)). Because Eastern raised no genuine fact issue on any act by Great American “so extreme that it caused injury independent of the policy claim,” see, e.g., Progressive Cty. Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 922 (Tex. 2005), the district court also granted summary judgment on Eastern’s claim for breach of the duty of good faith and fair dealing.
Great American is significant because it offers a recent, but rare, example of a Texas court finding the same reasons negating the duty to defend likewise negated the duty to indemnify. See, e.g., Farmers Texas Cty. Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 84 (Tex. 1997). Since the Texas Supreme Court’s holding in D-R Horton-Texas, Ltd. v. Markel International Insurance Company, Ltd., 300 S.W.3d 740, 745 (Tex. 2009), that an insurer may still owe a duty to indemnify even where it owes no duty to defend, Griffin has often been limited to its facts and construed narrowly by policyholders and courts. Great American serves as a well-reasoned opinion for insurers to cite to support arguments that indemnity issues may be decided on the same grounds, and at the same time, as defense issues.
On May 26, 2017, Texas Governor Greg Abbot signed into law Texas House Bill 1774/Senate Bill 10. The new law makes changes to the Texas Insurance Code that will impact the way in which weather claims are brought and how those claims may be defended. The new law becomes effective on September 1, 2017.
The amendments to the Texas Insurance Code add a new Chapter 542A, which governs certain consumer actions related to claims for property damage. Specifically, Chapter 542A applies to any first-party claim which arises from “damage to or loss of covered property caused, wholly or partly, by forces of nature, including an earthquake or earth tremor, a wildfire, a flood, a tornado, lightning, a hurricane, hail, wind, a snowstorm or rainstorm.” Claims against the Texas Windstorm Insurance Agency are exempted from the new law.
Chapter 542A continues the policies underlying Section 541.154(a) of the Texas Insurance Code that require notice of a potential claim at least 61 days before suit is filed and provide the insurer an opportunity to settle a dispute claim pre-suit.
The scope of Chapter 542A, however, is significantly broader than the notice provisions that currently exist under Section 541.154 and the Texas Deceptive Trade Practices Act (“DTPA”). Chapter 542A broadly applies to any action on a claim against an insurer, including claims for breach of contract, fraud and misrepresentation, common law bad faith, alleged violations of the Texas Insurance Code and the DTPA. This means that Chapter 542A requires a potential claimant to notify its insurer of potential litigation before he or she files suit, regardless of the nature of the claim involved.
The notice also must now contain very specific information about the claim, including: (1) a statement of the acts or omissions giving rise to the claim; (2) the specific amount allegedly owed; and (3) the amount of reasonable attorney’s fees incurred to date in connection with the claim. This notice is not required if notice is impracticable due to an impending statute of limitations deadline or if the claim is being asserted as a counterclaim.
Importantly, the notice provisions under Section 542A.003 provides specific instructions and requirements for the attorney’s fees demand in a pre-suit notice. Unlike the existing notice provision under § 541.154, the amount of attorney’s fees set forth in the demand must be based on the amount of hours actually worked by the claimant’s attorney, as reflected in contemporaneously kept time records.
Once notice is given, § 542A.003 allows for a 60-day deadline for an insurer to make a settlement offer. Section 542A.004 also allows an insurer 30 days in which to request an inspection of the property at issue. If a claimant fails to provide the required notice, choosing instead to simply file a lawsuit, § 542A.005 requires that a court abate the claim. Similarly, a court must abate a claim if an insurer does receive notice, but is denied the opportunity to inspect the property at issue.
The new law also changes the damages which may be assessed for certain violations of the Prompt Payment of Claims Act. The prior version of the Prompt Payment of Claims Act imposed additional damages equal to 18% per annum of the actual damages on an insurer who violated the Act. However, for those claims covered by new Texas Insurance Code Chapter 542A, an insurer which is not in compliance with the Prompt Payment of Claims Act will now be liable for additional damages of 5% percent per annum interest added onto the post-judgment variable interest rate determined under Texas Finance Code Section 304.003.
Under the Texas Finance Code, the post-judgment interest rate varies between 5% and 15%, depending on the prime rate established by the Federal Reserve.. Thus, insurers in violation of the Act in claims subject to Chapter 542A face a sliding scale of statutory interest damages that will range from 10% to 20% per annum. While the new rate could exceed the existing 18% per annum if interest rates increase significantly to levels not seen in decades, the new interest damages are likely less that the current 18% per annum damages, at least for the foreseeable future. Currently the post-judgment interest rate is 5% per annum, which results in 10% additional interest damages under the Act until such time as the post-judgment variable interest rate is raised.
The new interest calculation only applies to a claim that is first tendered to a carrier after the effective date of the Act on September 1, 2017.
In weather related first party litigation, the threat of potential attorney’s fees triggered by minor infractions of the Texas Insurance Code has often been used as a hammer to induce settlement. However, the new law links recovery of attorney’s fees to the claimant’s trial recovery and initial demand.
Section 542A.007 limits an attorney’s fees recovery to the lesser of: (1) the amount of fees incurred by the claimant in bringing an action; (2) the fees recoverable under another law; or (3) an amount based on the difference between the demand and the amount awarded in a judgment. Under this final provision, the court would divide the amount to be awarded by the amount of the initial demand to obtain a ratio. This ratio is then be multiplied against the amount of fees actually incurred by the claimant. Thus, an excessive demand will result in a substantial reduction of recoverable attorney’s fees, or no recovery at all; but a reasonable or even low demand will result in a recovery of attorney’s fees in excess of the fees actually incurred.
The new law also provides additional and very important restrictions on an attorney’s fees recovery. If a defendant is not given notice as required, § 542A.007(d) prevents a court from awarding any attorney’s fees incurred after the defendant files a separate pleading with the Court. The separate pleading must be filed within 30 days of the date the defendant filed its original answer. The outright bar on recovering attorney’s fees created by § 542A.007(d) should serve as a substantial incentive to follow the law for those lawyers that have traditionally ignored the pre-suit notice requirements in the Texas Insurance Code. Otherwise, insurers will have a valuable tool at their disposal to defend themselves when sued without any prior notice.
The new law also includes provisions relating to the potential liability of third parties. A common occurrence in recent weather related first party litigation involves the inclusion in a lawsuit of local or independent adjusters or consultants in a claim. Among other impacts, their inclusion prevents insurers from removing a state-filed case to federal court.
Under the new law, however, an insurer can remove the local adjuster or consultant from a claim altogether by agreeing to be liable for any conduct by such local adjuster or consultant. Under § 542A.006, an insurer may accept any liability this third party, as its agent, might have to the claimant by providing written notice to the claimant. If an insurer accepts its agent’s liability before an action is filed, a claimant has no cause of action against the agent, and if the claimant files an action, the court must dismiss that action with prejudice. Alternatively, if the insurer accepts its agent’s liability while an action is pending, the court must also dismiss that action with prejudice.
How exactly this will impact weather-related insurance claims is not yet known. If an insurer receives the required notice before a lawsuit is filed and makes a timely election, the insurer should be able to remove the case to federal court even if the local adjuster or consultant is named because the claimant has no realistic chance of recovering against the local adjuster or consultant. Indeed, the acceptance of liability provision was explicitly designed to create an option to remove the case.
However, under existing precedent, if the insured makes the election while an action is pending, the subsequent dismissal of the local adjuster or consultant likely will not allow the insurer to remove the case. The jurisprudence surrounding the removal statute states that the removability of a case is determined as of the date of filing, and a case becomes removable at a later date only by some voluntary action by the claimant. Thus, if the claimant does not provide the required notice and files suit, the insurer does not have the opportunity to make that election beforehand. Although this may create an incentive to file without notice, the corresponding prohibition on recovering attorney’s fees arguably makes it less likely that a claimant would do so.
The new law nonetheless does carve out a few exceptions to this provision. First, an insurer cannot accept the liability of a local adjuster or consultant if the insurer is in receivership at the time a claimant files an action against the insurer. Second, an insurer’s election of liability cannot be used to obtain the dismissal of an action against an agent if the election of liability allows the insurer to avoid liability for any claim-related damage caused to the claimant by the agent’s acts or omissions. However, if an insurer makes an election of liability in an action where the agent is not a party, evidence of the agent’s acts or omission may be offered at trial and included in the judgment against the insurer. Finally, the insurer may not condition the acceptance of liability in such a way as to avoid responsibility for the local adjuster’s or consultant’s acts or omissions.
Importantly, an insurer which accepts the liability of a local adjuster or consultant will be required to make that person available for deposition under § 542A.006(d). If the insurer fails to make that agent available, §§ 542A.007(a), (b), and (c), which relate to attorney’s fees, will not apply to the action in which the insurer made the election, unless the court finds: (1) a change in circumstances which makes it impracticable to make the agent available; (2) the agent whose liability was assumed would not have been a proper party to the action; or (3) obtaining a deposition of the agent is not warranted under the law.
The new amendments to the Texas Insurance Code potentially have significant impact on how weather-related claims are brought and defended. Insurers and policyholders alike should take careful note of these changes, particularly in the beginning stages of a claim. The stringent pre-suit notice requirements should afford insurers an opportunity to try to resolve claims one last time before becoming embroiled in protracted litigation and, if necessary, use that additional time to demand an appraisal on a disputed loss to limit its potential exposure on extra-contractual claims.
In Madrigal v. Allstate Indemnity Co., Cause No. 16-55830 (9th Cir. June 15, 2017), the Ninth Circuit upheld a jury award assessing $14 million in bad faith damages, even though it was unclear whether the insurer could have met the settlement demand which it allegedly refused in bad faith.
In 2009, Carlos Madrigal (“Madrigal”) was riding a motorcycle when he was hit by a car driven by Richard Tang. The accident left Madrigal a paraplegic. A police report for the accident listed Madrigal at fault for the accident. Allstate provided insurance to Richard Tang and his wife, Anna Tang, with limits of $100,000 per claimant.
Madrigal, through counsel, offered to settle his claims against Richard Tang for $100,000. As a condition of settlement, Madrigal demanded that Allstate produce an asset sheet for the Tangs. Madrigal also requested that Allstate identify any issues with the form of the demand. Allstate forwarded the demand to the Tangs, noting that the exposure to the Tangs might well exceed the available policy limits and recommending that the Tangs consult an attorney about the potential excess exposure. While the settlement demand remained pending, Allstate’s investigator obtained a statement from a “credible witness” indicating that Tang (not Madrigal) caused the accident with Madrigal.
Allstate initially informed Madrigal’s counsel that it accepted the $100,000 demand, but subsequently withdrew that acceptance, claiming that the acceptance was made on the mistaken belief that Madrigal had his own insurance. In place of the $100,000 demand, Allstate offered to pay Madrigal’s then existing medical bills of approximately $35,000. After a verbal conversation, Madrigal’s counsel sent a letter to Allstate confirming the rejection of the $35,000 offer. In response, Allstate communicated in writing that it agreed to pay the $100,000. However, Madrigal declined to accept this offer, noting that Allstate already rejected it. Madrigal filed suit, which resulted in a damage verdict against Tang exceeding $10,000,000, with Tang assessed 100% fault.
After trial, the Tangs assigned their rights against Allstate to Madrigal in exchange for an agreement not to execute the judgment as against the Tangs. Madrigal then filed suit against Allstate, for breach of contract and breach of the implied covenant of good faith and fair dealing.
Both parties moved for summary judgment. Particularly, Allstate argued that it was entitled to summary judgment because: (1) Madrigal’s settlement demand was unreasonable because it only included Richard Tang, but made no mention of Anna Tang; (2) Allstate’s tender of policy limits on two occasions showed Allstate’s good faith; and (3) Madrigal’s settlement demand could not be met, as the Tangs refused to provide an asset sheet. In response, Madrigal argued that Allstate never identified Anna Tang as an insured, or indicated that Anna Tang required a release of liability. Madrigal argued that the exchange of letters of settlement showed that Allstate rejected the settlement demand, and later attempts to accept that demand were untimely. Finally, Madrigal argued that the Tangs would have provided an asset sheet, had Allstate requested one from the Tangs. As such, Madrigal argued that Allstate breached its obligation to accept a reasonable settlement offer within policy limits.
Both parties heavily disputed the evidence submitted by the other. Ultimately, the trial court concluded that fact issues precluded summary judgment for either party. Trial was held on Madrigal’s claim against Allstate for breach of the implied covenant of good faith and fair dealing, resulting in a $14 million judgment for Madrigal.
On appeal, Allstate raised the same issues as found in its Motion for Summary Judgment, as well as additional issues relating to evidence admitted at trial and the submitted jury charge. The Ninth Circuit, in an unpublished opinion, upheld the trial court judgment against Allstate.
The Ninth Circuit first considered whether the demand for an asset sheet rendered Allstate unable to accept the demand. The Ninth Circuit noted that conflicting evidence was presented to the jury as to whether or not the Tangs actually refused to provide the asset sheet. As such, the trial evidence did not permit a conclusion that Allstate was unable to respond to the demand.
The Ninth Circuit then considered whether Allstate could reject a demand offering to release only one insured since that would violate its obligation to protect all insureds when settling a claim. The court noted that Madrigal’s original demand offered to provide an “appropriate release” and that this language could permit a jury to find that any release would include any other insureds whom Allstate believed needed to be released to resolve the claim. As such, a jury could again conclude that Madrigal’s demand was reasonable.
The Ninth Circuit then considered the exchange of settlement demands. The Ninth Circuit noted that whether an insurer acts unreasonably is generally a question of fact for a jury, and the insurer’s conduct must be unreasonable under all of the circumstances. In this case, at the time of the settlement demand, Allstate knew of a witness who would assess liability against Tang, had medical bills showing exposure in excess of the policy limit, informed the Tangs about a potential excess exposure and declined to identify any problems with the settlement demand. Based on this evidence, the Ninth Circuit concluded a jury had basis to conclude that Allstate breached the covenant of good faith and fair dealing when it rejected the settlement demand.
Consequently, the Ninth Circuit affirmed the trial court judgment against Allstate.
Although Allstate appears to have had reasonable positions regarding the form and language of the underlying settlement demand, Madrigal demonstrates that questions regarding the form of a demand may not excuse an insurer which fails to settle a claim. When a claim involves catastrophic injuries, and insufficient funds to pay for those injuries, a carrier should carefully evaluate any settlement demand before rejecting it.
The West Virginia Supreme Court recently granted an insurer the extraordinary legal remedy of a writ of prohibition, awarding it an immediate dismissal of the insureds’ bad faith claims. State ex rel. Universal Underwriters Insurance Company v. Wilson, ___ S.E.2d ___, 2017 WL 2415343 (W. Va. Jun. 1, 2017). The court reasoned that because the insurer is defending the insureds in the underlying tort action, the insureds have not yet suffered any recoverable item of damages as necessary to make their bad faith claims ripe for adjudication.
The defendants in the underlying tort lawsuit include Salvatore Cava, Salvatore’s father, Daniel Cava, and Daniel Cava’s business, Dan’s Car World, LLC d/b/a Dan Cava’s Toyota World (“Dan’s Car World”). The insurer’s policy was issued to Dan’s Car World, and it included a garage coverage part with a $300,000 limit of liability and a commercial umbrella coverage part with a $5,000,000 limit of liability.
On May 13, 2014, then 19 year-old Salvatore was driving a Rav4 when he was involved in an accident with a motorcycle. David Allen, the driver of the motorcycle, suffered catastrophic injuries and died nine days later. At the time of the accident, Salvatore was living in his parents’ home and working for his father at Dan’s Car World. The Rav4 he was driving with his father’s permission was owned by Dan’s Car World, but Salvatore was not engaged in any activity on behalf of the business at the time of the collision. Allen’s widow filed suit against Salvatore and Dan’s Car World, asserting that Salvatore was an employee, agent, or servant of Dan’s Car World. She also asserted a declaratory judgment action against the insurer to determine the amount of coverage available.
The insurer determined that the complaint triggered its duty to defend, and retained separate counsel for Salvatore (the son) and Dan’s Car World (the insured business). It also retained counsel to defend the declaratory judgment coverage action. While the insurer admitted that the garage coverage part provides coverage for the underlying tort claims, it maintains that the commercial umbrella coverage part does not provide any such coverage because Salvatore was not operating the Rav4 for business purposes.
Allen’s widow subsequently filed an amended complaint that added Daniel Cava (the father) as a defendant and asserted negligent entrustment and family use claims against him. The insurer then retained defense counsel for Daniel as well. In addition to answering the amended complaint, the insureds “mounted a sweeping attack on [the insurer’s] defense strategy or alleged lack thereof, and filed individual cross-claims against [the insurer]” for statutory unfair trade practices and common law bad faith. The insureds generally asserted that the insurer had placed its interest above theirs during the course of the litigation, and acted in bad faith by failing to properly investigate and settle the case. The insureds further alleged that the insurer’s bad faith conduct caused Salvatore and Daniel to suffer “emotional and mental distress.” Id. at *4-7.
The insureds countered that they were merely asserting well-recognized claims for breach of the duty to provide an effective defense, and that they should not be forced to endure a trial for which they are not being adequately defended. The insurer replied that it had no right to control the litigation strategy of the defense counsel it retained to represent the insureds, and that the issue of whether or not the defense counsel it retained “have adequately represented the [insureds] is a question that is ‘in flux’ because the representation is ongoing.” Id. at *12.
The gravamen of the [insureds’] cross-claims is that they should not have to endure a trial for which the lawyers retained to represent them … are “unprepared” which may cause them to suffer a potential verdict in excess of the to-be-determined policy limit. However, the issue of whether the [insureds] will suffer any of their alleged economic damages is contingent on future events: the resolution of the plaintiff’s claims against the [insureds], and her declaratory judgment action against [the insurer]. As these claims are pending before the circuit court, certain damages are not impending and the issue is not ripe for adjudication.
Id. at *17-18 (emphasis in original). The court also found that the insureds’ claims relating to “litigation-induced emotional distress” failed because such alleged damages are not recoverable as a matter of law. In so doing, it emphasized that an insurer should have the right to defend or prosecute a declaratory judgment action “without risking exposure merely because the strain inherent in litigation discomfits its insured.” Id. at *18, n. 18.
In conclusion, this case stands for the well-reasoned principles that: (1) an insured should not be able to maintain a bad faith claim until it has actually suffered recoverable damages, (2) an insured should not be able to pull an insurer into litigation to defend the actions of the defense counsel it has retained to protect the insured, particularly when the defense is ongoing and the insurer has no right to control the litigation strategy of the defense counsel at issue, and (3) litigation induced emotional distress is not a recoverable category of damages, at least not in West Virginia.
On June 6, 2017, the U.S. District Court for the Eastern District of California found, consistent with longstanding California precedent, that a material misrepresentation made in the course of a coverage investigation voids coverage. The holding reaffirms the importance of the insurer’s investigation into claims it suspects may be fraudulent. The court also, again consistent with California precedent, declined to find any bad faith conduct in the absence of coverage.
Young v. Progressive Casualty Insurance Co., No. 1:16-CV-01198-DWM, 2017 WL 2462497 (E.D. Cal. Jun. 6, 2017) concerned Young’s claim to Progressive for the theft of his motor home. His policy provided comprehensive coverage with an agreed value for the motorhome of $63,000 with no deductible. Law enforcement recovered the motor home from a canal the same day Young reported it missing. The license plates and VIN tag were missing. The steering wheel was tied in place and the accelerator was depressed with a pole.
Progressive’s Special Investigations Unit investigated the claim, obtaining the cell phone records of Young’s family. His son’s cell phone “pinged” a cell tower when it was used at a location near the canal at 4:03 a.m. on the same day Young reported the motor home missing. Further, the phone was used several times in the days prior near Young’s home. Progressive also took examinations under oath of Young’s family. Young testified that his son’s phone was inadvertently left in the truck of a customer several days before the purported theft of the motor home, meaning that the 4:03 a.m. “ping” was not because Young’s son used his phone. Young’s son testified, however, that he had access to and used his phone in the days leading up to the motor home’s disappearance. Progressive denied coverage on the ground that Young’s statement about the whereabouts of his son’s phone in the period just before the motor home’s disappearance was a material misrepresentation.
The court, relying on Cummings v. Fire Insurance Exchange, 202 Cal. App. 3d 1407, 1418-19 (1988), indicated that if in the course of an insurance claim an insured knowingly misrepresents material facts intending to deceive the insurer, coverage is voided. The intent to defraud the insurer is implied when the misrepresentation is material and the insured willfully makes it with knowledge of its falsity. The facts establishing misrepresentation remained undisputed, as oddly, Young never opposed Progressive’s summary judgment motion. Progressive proved that Young’s statement about the whereabouts of his son’s phone were false with the cell phone records and his son’s contrary testimony. Progressive proved materiality by showing the location of the phone was near where the motorhome was recovered, suggesting it was intentionally sunk.
California remains a jurisdiction in which a bad faith claim cannot be stated without a breach of contract. The court here invoked this longtime rule, but indicated that even if there were somehow coverage, Progressive’s investigation and position were reasonable, given the facts uncovered.
On March 6, 2017, the Georgia Supreme Court answered certified questions regarding the application of Georgia’s Pre-Suit Offer statute concluding that O.C.G.A. § 9-11-67.1, the statute dealing with the formation of settlement agreements pursuant to pre-suit offers to settle tort claims arising from the use of a motor vehicle, does not prohibit a claimant from conditioning acceptance of a pre-suit offer upon the performance of an act, such as timely or prompt payment. Grange Mutual Casualty Co. v. Woodard, 797 S.E.2d 814 (2017). In doing so, the Court clarified that the statute sets forth the minimum requirements for pre-suit offers. Beyond those required terms, the Court explained, parties are free to add additional terms. This includes presenting a pre-suit offer as a unilateral contract that demands acceptance in the form of performance (in addition to the required written acceptance) before it becomes a binding and enforceable settlement.
The case deals with a settlement following an automobile accident. The Woodards, the parents of the deceased, made a settlement offer through their attorney to Grange Mutual Casualty Company, the defendant’s insurer. The settlement offer required that Grange accept it in writing within thirty (30) days, and that Grange remit payment within ten (10) days of the written acceptance. Grange accepted the offer on day 29, and issued the required checks seven (7) days later. However, an addressing error delayed the checks’ arrival. Eleven (11) days after the checks were required to arrive, and before claimants received the checks, claimants’ counsel retracted the offer. Grange immediately sent new checks, which claimants’ counsel returned two days later.
Grange filed suit against the Woodards in United States District Court for the District of Georgia for breach of the settlement contract. The Woodards argued the parties did not reach a settlement agreement because Grange failed to satisfy the payment condition. Grange argued that, under Georgia law, the Woodards’ attempt to require timely payment as a condition of acceptance was not permissible. The district court did not agree with the insurer, Grange, holding that the statute does not prohibit a party from requiring payment as a condition of acceptance. The district court also rejected Grange’s argument that it had issued the settlement checks in a timely manner.
Grange appealed to the Eleventh Circuit, which concluded the requirements in O.C.G.A. § 9-11-67.1 were ambiguous and certified the questions related to the dispute to the Georgia Supreme Court. The Supreme Court held that O.C.G.A. § 9-11-67.1 permits unilateral contracts by the offerors (claimants) including demanding acceptance in the form of performance before there is a binding, enforceable settlement contract. It also held that O.C.G.A. § 9-11-67.1 does not preclude a pre-suit offer from demanding timely payment as a condition of acceptance.
The Court’s holding recognizes that subsection (a) of O.C.G.A. § 9-11-67.1 provides that a pre-suit offer must contain the following five “material terms:” (1) time period within which such offer must be accepted (which shall be not less than 30 days from receipt of the offer); (2) amount of the payment; (3) the party or parties that the claimant will release if the offer is accepted; (4) the type of release, if any, the claimant will provide to each releasee; and (5) the claims to be released. However, the Court concluded that subsection (a) permits pre-suit offers to include additional terms, as long as the minimum five material terms are also included. The court reasoned that subsection (a) is a list of necessary, but not exclusive, terms to be included in a pre-suit offer.
Subsection (c) also supports the Court’s interpretation. It provides, “Nothing in this Code section is intended to prohibit parties from reaching a settlement agreement in a manner and under terms otherwise agreeable to the parties.” Considering the mandatory language of subsection (a), which provides what terms “shall” be included, subsection (c) indicates that pre-suit offers can include terms in addition to those required by subsection (a). Further, the term “manner” in subsection (c) indicates that claimants may require recipients (usually insurers) of pre-suit offers to perform tasks beyond acceptance in writing for the acceptance to be valid.
The case will now return to the Eleventh Circuit for a determination on the merits.
Even though the Georgia Pre-Suit Offer statute does not apply to non-automobile claims, claimant attorneys in Georgia sometimes use the standards of this statute in making pre-suit offers in those non-automobile claims. While an insurer may not be under any statutory duty to comply with a pre-suit offer in non-automobile tort claim cases, it may still want to consider timely responding and complying with a pre-suit offer regardless of the tort claim involved as part of its best claims handling practices. And, insurers handling Georgia automobile claims need to be cognizant that the Georgia Pre-Suit Offer statute addresses minimum requirements. It is yet to be determined what will be considered a satisfactory “prompt payment” term or other terms of performance.


We have previously written about stays of litigation before the PTAB has acted on a petition for IPR or CBM review. A recent Board decision addresses a contrasting circumstance: staying a CBM proceeding in light of activity in litigation. In Samsung Elecs. Am., Inc. v. Smartflash LLC, (and related CBM review proceedings), the Board denied a Patent Owner’s request for authorization to file a motion to stay the CBM proceeding based on the Board’s statutory mandate to complete the CBM proceeding within one year of institution. CBM2014-00190, Paper 13 (May 6, 2015).
Smartflash sued multiple entities in the Eastern District of Texas alleging infringement of several patents. Defendants moved for summary judgment of invalidity pursuant to 35 U.S.C. § 101, but the district court denied their motion. Meanwhile, the Board instituted CBM review of several Smartflash patents on § 101 grounds.
In light of the favorable outcome at the district court, Smartflash requested that the Board provide authorization to file a motion to stay the CBM proceedings. Smartflash argued that it would be “an improper use of Board resources to re-litigate issues that have been resolved in district court” and further that the “rules direct [the PTAB] to conduct these proceedings in a speedy, efficient, and inexpensive manner.” The Board found these arguments unpersuasive.
Under 35 U.S.C. § 326(a)(11), the Board is required to issue its final determination in a CBM proceeding “not later than 1 year after the date on which the Director notices the institution of a proceeding . . . . except that the Director may, for good cause shown, extend the 1-year period by not more than 6 months.” See also AIA § 18(a)(1). In light of this statutory mandate, as well as the fact that the “parties cannot control the timing of the district court trial and/or possible subsequent appeal to the Federal Circuit, even if [the PTAB] were to extend the deadlines in these cases by up to six months,” the Board concluded that there was no justification to stay the CBM proceedings.
Hence, in this circumstance a favorable outcome concerning validity for a Patent Owner at the district court did not outweigh the PTAB’s mandate to expeditiously determine a question of invalidity in a CBM proceeding. This outcome is not inconsistent with Federal Circuit case law. See, e.g., Envtl. Designs, Ltd. v. Union Oil Co. of Cal., 713 F.2d 693, 700 n.9 (Fed. Cir. 1983) (stating courts do not hold a patent valid, only the “patent challenger did not carry the burden of establishing invalidity in the particular case before the court”); Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1429 n.3 (Fed. Cir. 1988) (“[A] court’s decision upholding a patent’s validity is not ordinarily binding on another challenge to the patent’s validity in either the courts or the PTO.”) (internal citations omitted).


The United States Department of Justice (Department) initiated this matter as a compliance review of Taos County, New Mexico (County) under title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131-12134, and the Department's implementing regulation, 28 C.F.R. Part 35. Because the County receives financial assistance from the Department of Justice, the review was also conducted under the authority of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Department's implementing regulation, 28 C.F.R. Part 42, Subpart G.
As part of its compliance review, the Department reviewed the following facilities, which – because construction or alterations commenced after January 26, 1992 – must comply with the ADA's new construction or alterations requirements: Planning and Community Development Offices, Road Department, and Agricultural Center.
The Department's program access review covered those of the County's programs, services, and activities that operate in the following facilities: Old Taos County Courthouse (aka Mercado), Sheriff's Department, Youth Build / DWI Office, Filemón Sanchez Fairground & Park, and County Complex Buildings (including The Offices, Finance / Treasurer / Solid Waste, Adult Detention, Juvenile Detention, County Court House and Administration Building).
The Department conducted a program access review of the following polling places: Ranchos Elementary School, Taos High School, Taos Middle School, Head Start, Cerro Fire Department, Rio Costilla Elementary School, Rio Fernando Fire District, Holy Trinity Parish Hall, and Convention Center. This review was limited to the areas of the facilities used by the voting public: parking, the route from the parking area to the area used for voting, and the area used for voting.
The Department reviewed the County's policies and procedures regarding notification of ADA policies, grievance procedures, effective communication, voting, emergency management and disaster prevention, and web-based services and programs to evaluate whether persons with disabilities have an equal opportunity to utilize these programs.
Finally, the Department reviewed the County's Sheriff's Department's policies and procedures regarding providing effective communication to persons who are deaf or hard-of-hearing.
1. The ADA applies to the County because it is a "public entity" as defined by title II. 42 U.S.C. § 12131(1).
2. The Department is authorized under 28 C.F.R. Part 35, Subpart F, to determine the compliance of the County with title II of the ADA and the Department's title II implementing regulation, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements. Furthermore, the Attorney General is authorized, under 42 U.S.C. § 12133, to bring a civil action enforcing title II of the ADA should the Department fail to secure voluntary compliance pursuant to Subpart F.
3. The Department is authorized under 28 C.F.R. Part 42, Subpart G, to determine the County's compliance with section 504 of the Rehabilitation Act of 1973, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements. Furthermore, the Attorney General is authorized, under 29 U.S.C. § 794 and 28 C.F.R. §§ 42.530 and 42.108-110, to suspend or terminate financial assistance to the County provided by the Department of Justice should the Department fail to secure voluntary compliance pursuant to Subpart G or to bring a civil suit to enforce the rights of the United States under applicable federal, state, or local law.
4. The parties to this Agreement are the United States of America and Taos County, New Mexico.
7. The County has a designated ADA Coordinator. Grievances are brought to the attention of the Coordinator who then works towards a resolution of the matter.
8. The County has issued a Notice to the public regarding the County's compliance with title II of the ADA.
9. The County has issued grievance procedures to address complaints under the ADA.
10. The County has contracted with the Community Outreach Program for the Deaf located in Santa Fe, New Mexico for regular and emergency sign language interpreting services when required.
11. Within three months of the effective date of this Agreement, the County will identify sources of qualified sign language and oral interpreters, real-time transcription services, and vendors that can put documents in Braille, and will implement and report to the Department its written procedures, with time frames, for fulfilling requests from the public for sign language or oral interpreters, real-time transcription services, and documents in alternate formats (Braille, large print, cassette tapes, etc.).
12. The County will take steps to ensure that all appropriate employees are trained and practiced in using the New Mexico Relay Service to make and receive calls.
13. Within three months of the effective date of this Agreement, the County will adapt for its own use and implement the Taos County Sheriff's Department Policy Statement on Effective Communication with People Who are Deaf or Hard of Hearing [Attachment A] and distribute to all sheriff's department officers the Guide for Law Enforcement Officers When in Contact with People Who are Deaf or Hard of Hearing [Attachment B].
14. Within three months of the effective date of this Agreement, the County will contract with one or more local qualified oral/sign language interpreter agencies to ensure that the interpreting services will be available on a priority basis, twenty-four hours per day, seven days a week, to its Sheriff's Department or make other appropriate arrangements (such as contracting directly with or hiring qualified interpreters).
15. Within three months of the effective date of this Agreement, the County will ensure that each Sheriff's station or substation and each detention facility is equipped with a working TTY to enable persons who are deaf, hard of hearing, or who have speech impairments to make outgoing telephone calls. Where inmate telephone calls are time-limited, the County will adopt policies permitting inmates who use TTY's a longer period of time to make those calls, due to the slower nature of TTY communications compared with voice communications.
C will make reasonable accommodations for the known physical or mental limitations of a qualified applicant or employee with a disability upon request unless the accommodation would cause an undue hardship on the operation of the County's business.
C If an applicant or an employee requests a reasonable accommodation and the individual's disability and need for the accommodation are not readily apparent or otherwise known, the County may ask the individual for information necessary to determine if the individual has a disability-related need for the accommodation.
C will make an individualized assessment of whether a qualified individual with a disability meets selection criteria for employment decisions. To the extent the County's selection criteria have the effect of disqualifying an individual because of disability, those criteria will be job-related and consistent with business necessity.
17. Some of the County polling places may be owned or operated by other public entities subject to title II or by public accommodations subject to title III and, as such, would be subject to the obligation to provide program access or to remove barriers to accessibility under the ADA. This Agreement does not limit such future enforcement action against the owners or operators of these polling places by any person or entity, including the Department.
18. Within one month of the effective date of this Agreement, the County will request in writing that each of the owners and operators of the polling places listed in Attachment C below will remove the noted barriers to access for persons with disabilities and the County will distribute to them the Department's ADA Checklist for Polling Places (www.ada.gov/votingck.htm) (Attachment D). The request will specify that the remediation be completed within one year of the effective date of this Agreement. The County will simultaneously send a courtesy copy of the request to the Department.
19. Within 14 months of the effective date of this Agreement, the County will survey all facilities mentioned in Attachment C to determine whether the actions requested by the County have been implemented. If not, for each polling place that still contains inaccessible parking, exterior route, entrance, or interior route to the voting area, the County will identify within 18 months of the effective date of this Agreement an alternate location where these elements are accessible. That identification will utilize the survey instrument that appears as Attachment D to this Agreement. The County will then take immediate steps to change its polling place to the new location.
20. Until all polling places in each precinct or voting district have accessible parking, exterior routes, entrances, and interior routes to the voting area, prior to each election, the County will identify and widely publicize to the public and to persons with disabilities and organizations serving them the most accessible polling place(s) for each precinct or voting district.
21. Within three months of the effective date of this Agreement, the County will provide opportunities for same-day balloting for voters with disabilities whose assigned polling place does not have accessible parking, exterior route, entrance, and interior route to the voting area. The method for providing these opportunities may include allowing the individual to vote at another nearby location that is accessible, vote by an absentee ballot that is accepted if postmarked on the day of the election (or picked up by election officials at the home of the voter on the same day as the election), provide curbside voting at the inaccessible polling place, or any other method that ensures that disabled voters have the same degree of information available to them when casting their ballots as others.
22. Within one year of the effective date of this Agreement, the County will develop and implement a way for persons who are blind or have low vision to vote independently and privately, whether through ballots and instructions in alternate formats (in-person and absentee), Braille templates and audio instructions, the provision of accessible voting machines, or some other method.
23. Within three months of the effective date of this Agreement, the County will survey its voter registration locations for accessibility to persons with disabilities by using the form provided at Attachment D and will report the results of this survey to the Department. If barriers to access are identified, the County will implement and report the Department its plan to provide program access, which may include allowing persons to register to vote through alternative means or at alternative locations.
24. Within three months of the effective date of this Agreement, the County will make all voter registration materials available in alternate formats, including Braille, large print, audio tape, and computer disk.
25. Starting three months from the effective date of this Agreement, when the County purchases or otherwise acquires new voting machines, one such newly-acquired machine per polling location will be the most accessible model for persons with disabilities (including those with mobility and visual impairments) that has been approved for County use by the applicable governing authority (e.g., State Secretary of Elections or other such official).
26. Starting three months from the effective date of this Agreement, when setting up its voting equipment, the County will ensure that the equipment's accessibility to persons with disabilities is maximized, such as setting up table-top equipment on accessible tables and within the reach ranges required by the Standards, as shown in Attachment D.
27. Within the month prior to the next election that utilizes the County's polling places, and at yearly anniversaries of the effective date of this Agreement until it expires, the County will train poll workers on the rights of people with disabilities and the practical aspects of assuring those rights. The training will cover, at minimum, the need to maintain the physical accessibility of polling locations; how to assist people with disabilities, as necessary; and how to operate any non-standard voting equipment or accessible features of standard equipment (particularly new, accessible equipment).
28. If the County contracts with another entity, such as the American Red Cross or another local government, to provide its emergency preparedness plans and emergency response services, the County will ensure that the other entity complies with the following provisions on its behalf.
29. Within three months of the effective date of this Agreement, the County will implement and report to the Department its written procedures that ensure that it regularly solicits and incorporates input from persons with a variety of disabilities and those who serve them regarding all phases of its emergency management plan (preparation, notification, response, and clean up).
30. Within three months of completion of final emergency management plan, the County will implement and report to the Department its written procedures that ensure that its community evacuation plans enable those who have mobility impairments, vision impairments, hearing impairments, cognitive disabilities, mental illness, or other disabilities to safely self-evacuate or be evacuated by others. Some communities are instituting voluntary, confidential registries of persons with disabilities who may need individualized evacuation assistance or notification. If the County adopts or maintains such a registry, its report to the Department will discuss its procedures for ensuring voluntariness, appropriate confidentiality controls, and how the registry will be kept updated, as well as its outreach plan to inform persons with disabilities of its availability. Whether or not a registry is used, the County plan should address accessible transportation needs for persons with disabilities.
31. Within three months of completion of final emergency management plan, the County will implement and report to the Department its written procedures that ensure that if its emergency warning systems use sirens or other audible alerts, it will also provide ways to inform persons with hearing impairments of an impending disaster. The use of auto-dialed TTY messages to pre-registered individuals who are deaf or hard of hearing, text messaging, e-mails, open-captioning on local TV stations and other innovative uses of technology may be incorporated into such procedures, as well as lower-tech options such as dispatching qualified sign language interpreters to assist with emergency TV broadcasts.
32. Within three months of completion of final emergency management plan, the County will implement and report to the Department its written procedures that ensure that it has identified temporary accessible housing (such as accessible hotel rooms within the community or in nearby communities) that could be used if people with disabilities cannot immediately return home after a disaster if, for instance, necessary accessible features such as ramps or electrical systems have been compromised.
33. Within 1 month of the effective date of this Agreement, and on subsequent anniversaries of the effective date of this Agreement, the County will distribute to all persons – employees and contractors – who design, develop, maintain, or otherwise have responsibility for content and format of its current and/or future website(s) or third party websites used by the County (Internet Personnel) the technical assistance document, "Accessibility of State and Local Government Websites to People with Disabilities," which is Attachment E to this Agreement (it is also available at www.ada.gov/websites2.htm).
35. The elements or features of the County's facilities that do not comply with the Standards, including those listed in Attachments F and G prevent persons with disabilities from fully and equally enjoying the County's services, programs, or activities and constitute discrimination on the basis of disability within the meaning of 42 U.S.C. § 12132 and 28 C.F.R. §§ 35.149 and 35.150.
36. The County will comply with the cited provisions of the Standards when taking the actions required by this Agreement.
37. Within three months of the effective date of this Agreement, the County will install signage as necessary to comply with 28 C.F.R. § 35.163(b), after having surveyed all facilities that are the subject of this Agreement for the purpose of identifying those that have multiple entrances not all of which are accessible.
38. Newly Constructed Facilities: In order to ensure that the spaces and elements in County facilities for which construction was commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the County will take the actions listed in Attachment F.
39. Program Access in County Existing Facilities: In order to ensure that each of the County's programs, services, and activities operating at a facility that is the subject of this Agreement, when viewed in its entirety, is readily accessible to and usable by persons with mobility impairments, the County will take the actions listed in Attachment G.
40. Except as otherwise specified in this Agreement, at yearly anniversaries of the effective date of this Agreement until it expires, the County will submit written reports to the Department summarizing the actions the County has taken pursuant to this Agreement. Reports will include detailed photographs showing measurements, architectural plans, work orders, notices published in the newspaper, copies of adopted policies, and proof of efforts to secure funding/assistance for structural renovations or equipment.
41. Throughout the life of this Agreement, consistent with 28 C.F.R. § 35.133(a), the County will maintain the accessibility of its programs, activities, services, facilities, and equipment, and will take whatever actions are necessary (such as routine testing of accessibility equipment and routine accessibility audits of its programs and facilities) to do so. This provision does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs. 28 C.F.R. § 35.133(b).
42. Within six months of the effective date of this Agreement, the County will develop or procure a two-hour training program on the requirements of the ADA and appropriate ways of serving persons with disabilities. The County will use the ADA technical assistance materials developed by the Department and will consult with interested persons, including individuals with disabilities, in developing or procuring the ADA training program.
43. Within one year of the effective date of this Agreement, the County will deliver its training program to all County employees who have direct contact with members of the public. At the end of that period, the County will submit a copy of its training curriculum and materials to the Department, along with a list of employees trained and the name, title, and address of the trainer.
44. If at any time the County desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the Department in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification. Until there is written Agreement by the Department to the proposed modification, the proposed modification will not take effect. These actions must receive the prior written approval of the Department, which approval will not be unreasonably withheld or delayed.
45. The Department may review compliance with this Agreement at any time. If the Department believes that the County has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department for a modification of the relevant terms, the Department will so notify the County in writing and it will attempt to resolve the issue or issues in good faith. If the Department is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to the County, it may institute a civil action in federal district court to enforce the terms of this Agreement, or it may initiate appropriate steps to enforce title II and section 504 of the Rehabilitation Act.
46. For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the County to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written agreement with the Department for an extension of the relevant time frame imposed by the Agreement.
47. Failure by the Department to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein will not be construed as a waiver of the Department's right to enforce other deadlines and provisions of this Agreement.
48. This Agreement is a public document. A copy of this document or any information contained in it will be made available to any person by the County or the Department on request.
49. This Agreement constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement (including its Attachments, which are hereby incorporated by reference), will be enforceable. This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect the County's continuing responsibility to comply with all aspects of the ADA and section 504 of the Rehabilitation Act.
50. This Agreement will remain in effect for four years.
51. The person signing for the County represents that he or she is authorized to bind the County to this Agreement.
52. The effective date of this Agreement is the date of the last signature below.


Somewhere near the banks of the oft-overflowing Passaic River in Clifton, New Jersey, there exists a roadside greasy spoon known for its fried “ripper” hot dogs known as Rutt’s Hut (hereinafter, “Rutt’s”). Rutt’s has been around since 1928 and has been featured in The New York Times, numerous television shows and was listed in the book 1,000 Places to See in the USA and Canada Before You Die. That being said, the author grew up less than ten miles from Rutt’s and has never been there. Nonetheless, it clearly has a following and can relish in its status a veritable New Jersey icon.
Rutt’s, the holder of an incontestable trademark registration for its restaurant services, demurred to Mutt’s use of its trademark, sending a cease and desist letter to advise that Mutt’s was barking up the wrong tree. In order to be effective, a cease and desist letter has to have teeth—e.g., the threat of litigation to show the recipient of the letter that the subject matter of the letter is not a trifling matter. In other words, the sender has to show the recipient that its bite is indeed worse than its bark.
Last week, Rutt’s did just that by filing a complaint in the United States District Court for the District of New Jersey entitled, Rutt’s Hut, Inc. v. Mutt’s Hut International, Adam’s Bagel & Deli, Magdi Muhammad and Ed Madsen, No. 2:11-01350 (D.N.J. filed March 9, 2011)(hereinafter, “the Action”). The Action, which sounds in federal trademark infringement and unfair competition under the Lanham Act, 15 U.S.C. §1051 et seq. and corresponding state statutory and common law claims, seeks preliminary and permanent injunctive relief, damages under 15 U.S.C. §1117(a) and attorneys’ fees, amongst other things.
OUT OF THE FRYING PAN AND INTO…INJUNCTIVE RELIEF?
Phonetically, the marks are similar but not identical. Courts have held that one-letter phonetically-different marks can be confusingly similar to one another. However, an evaluation of Lapp factor No. 1 will also include “the manner in which the marks are used.” In the Action here, both marks are used in connection with restaurant services and—more specifically—to sell hot dogs. Further still, both are conveniently within the City of Clifton. The plaintiff also alleges actual confusion, which shouldn’t be surprising given the proximity of the two restaurants.
SHOULD MUTT’S HUT ROLL OVER AND PLAY DEAD?
As such, there is a danger to plaintiff that its claims will not pass mustard [sic]. Nevertheless, the less than five (5) miles separating the plaintiff and defendants—all within the same town—should factor prominently in the Court’s decision. Thus, the RALLO versus GALLO and “SLIDE” versus “GLIDE” examples above will not likely benefit Mutt’s here because of the proximity of the services (both in terms of distance and sort of services rendered under the marks) in connection with identical products served—hot dogs.
No matter how the Court decides this one, niche market and hometown heroes such as Rutt’s should take that as a signal to look to expand upon their fame (newly-found or otherwise) and seek private label agreements for products complementary to the services rendered. It is not unheard of for restaurants to sell eponymously-labeled sauces, processed meats or entrees. Seeking trademark registrations for such products outside of International Class 042 or 043 (encompassing restaurant services) will only serve to strengthen one’s brand and if your client has a laundry list of trademarks to cite, it might scare off local imposters at the cease and desist stage.
 See, Rutt’s Hut, http://en.wikipedia.org/wiki/Rutt’s_Hut (visited Mar. 17, 2011).
 See, Clifton, New Jersey, http://en.wikipedia.org/wiki/Clifton,_New_Jersey (visited Mar. 17, 2011).
 See, e.g., Clifton hot dog giant sues competitor for trademark infringement, http://www.nj.com/news/index.ssf/2011/03/clifton_hot_dog_giant_rutts_hu.html#cmpid=v2mode_be_smoref_face (visited Mar. 17, 2011).
 See, Hugh R. Morley, Rutt’s Hut in legal dogfight over name, http://www.northjersey.com/news/business/118148464_Dogfight_cooking_in_Clifton.html (visited Mar. 17, 2011).
 See Rutt’s Hut, Inc. v. Mutt’s Hut International et al., No. 2:11-01350 (D.N.J. filed March 9, 2011), Complaint, (Doc. 1) at 1, 11-12.
 See Dranoff-Perlstein Assocs. v. Sklar, 967 F.2d 852, 862 (3d Cir. 1992)(quotation omitted); see also, A&H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 237 F.3d 198, 211 (3d Cir. 2000).
 See 721 F.2d 460, 463 (3d Cir. 1983)(citing Scott Paper Co. v. Scott’s Liquid Gold, Inc., 589 F.2d 1225, 1229 (3d Cir. 1978)).
 See A&H Sportswear, 237 F.3d at 211 (quoting Lapp, 721 F.2d at 463). Court approach the application of the Lapp factors qualitatively. Because of that, “[n]ot all factors will be relevant in all cases; further, the different factors may properly be accorded different weights depending on the particular factual setting. A district court should utilize the factors that seem appropriate to a given situation.” Id. at 215.
 See Checkpoint Sys. v. Check Point Software Tech., Inc., 269 F.3d 270, 281 (3d Cir. 2001).
 See A&H Sportswear, 237 F.3d at 216 (citing Ceiba-Geigy Corp. v. Bolar Pharm. Co., Inc., 747 F.2d 844, 851 (3d Cir. 1984)).
 See Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 713 (3d Cir. 2004)(quoting A&H Sportswear, 237 F.3d at 216)(emphasis in original)).
 See Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728 (C.C.P.A. 1968)(holding that BEEP and VEEP are confusingly similar); see also, Nikon, Inc. v. Ikon Corp., 803 F.Supp. 910 (S.D.N.Y. 1992)(holding that NIKON and IKON were confusingly similar); see also, Bell Publishing Corp. v. Bantam Doubleday Dell Publishing Group, Inc., 1990 U.S. Dist. LEXIS 5066 (E.D. Pa. 1990)(holding that BELL and DELL were confusingly similar).
 See W.L. Gore & Assoc., Inc. v. Johnson & Johnson, 882 F.Supp. 1454, 1458 (D.Del. 1995)(quotation omitted).
 See J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION at §23:25 (4th ed., West 2010).
 See 430 F.Supp.2d 1064, 1094 (E.D.Ca. 2005).
 See W.L. Gore, 882 F.Supp. at 1458.


Employees' Retirement System of the State of Hawaii, Appellee-Appellee/Cross-Appellee.
[87 Hawai'i 155] Michael A.S. Chun, Gladys Farm, Herbert T. Imanaka, Jimmy T. Izu, Samuel Y. Kakazu, Billy G. Southwood, Eishin Tengan, Thomas Y. Yano, Valerie Yamada Southwood, and Barbara Jane Luke.
Russell A. Suzuki, Diane Erickson, Katherine C. Desmarais, and Girard D. Lau, Deputy Attorneys General, on the briefs, for appellee-appellant/cross-appellee Board of Trustees of the Employees' Retirement System of the State of Hawai'i.
Mark J. Bennett, McCorriston Miho Miller Mukai, on the briefs, Honolulu, for appellee-appellee/cross-appellee Employees' Retirement System of the State of Hawai'i.
Before MOON, C.J., and LEVINSON, NAKAYAMA and RAMIL, JJ., and Circuit Court Judge HUDDY, in place of KLEIN, J., Recused.
The appellee-appellant/cross-appellee Board of Trustees of the Employees' Retirement System of the State of Hawai'i (the Board) and the appellee-appellee/cross-appellee Employees' Retirement System of the State of Hawai'i (the ERS) appeal, and the appellants-appellees/cross-appellants Michael A.S. Chun, Gladys Farm, Herbert T. Imanaka, Jimmy T. Izu, Samuel Y. Kakazu, Billy G. Southwood, Eishin Tengan, Thomas Y. Yano, Valerie Yamada Southwood, and Barbara Jane Luke (collectively, the Retirees)--who, as retired public school principals, vice principals, or teachers are members of the ERS--cross-appeal from the circuit court's (1) "final order," filed on March 4, 1996, reversing the Board's decision and order entered on March 23, 1995 and (2) final judgment entered on March 11, 1996.
(3) ruling that, in the calculation of their pension benefits, the Retirees are entitled to the same treatment as legislators, who are deemed to be full-year employees notwithstanding that their official duties are not uniformly distributed throughout the entire calendar year; (4) setting aside the Board's factual finding, on the basis that the reasons therefore were not ascertained, that the Department of Education (DOE) treats the summer months as paid vacation time; (5) ruling that the Retirees' substantial rights were prejudiced by the inaccurate calculation of their pension benefits; and (6) including similarly situated persons, who retired subsequent to the filing of the Retirees' class action lawsuit, in the certified classes.
Because we hold--in the absence of the express authorization of the Board, conferred by an official majority vote of its members--that the ERS (at the behest of its purported "administrator") and "the Board" (at the behest of the Attorney General) lacked the power to appeal the circuit court's final order and judgment, we decline to address the merits of their points of error and dismiss their unauthorized appeals. The Retirees' cross-appeal thus being rendered moot, we need not reach the points of error raised therein.
Prior to retiring, the Retirees (as public school principals, vice principals, or teachers) were all "ten-month employees" of the DOE, who worked primarily during the school year but received their salaries in equal periodic installments throughout the calendar year. The present appeal arises out of two class action lawsuits--one brought on behalf of retired principals and vice principals and the other on behalf of retired teachers--filed in the first circuit court. Each complaint sought declaratory and injunctive relief based upon the allegation that the ERS had miscalculated the benefits to which the Retirees were entitled under HRS ch. 88 by excluding the Retirees' "earned summer salaries," see supra note 3, from the computation of their "average final compensation" (AFC), as authorized by the "high-three method" described in HRS § 88-81(a)(1)(B), see supra note 2.
The circuit court entered summary judgment in favor of the retired principals and vice principals, ruled that "the lump sum payment of 'earned summer salary,' paid upon retirement[,] was compensation attributable to the month in which the member of the class retired," and therefore ordered the ERS to include those amounts in the recalculation of the principals' and vice principals' AFC. Chun v. Employees' Retirement Sys., 73 Hawai'i 9, 10, 828 P.2d 260, 261, reconsideration denied, 73 Hawai'i 625, 829 P.2d 859 (1992) (Chun I ). The ERS appealed. Id. at 11, 828 P.2d at 261.
71 Hawai'i 367, 791 P.2d 1261 (1990), [87 Hawai'i 158] remanded the case "with the direction that the [circuit] court [further] remand the matter to the ERS for a full and fair administrative hearing" prior to any further judicial action. Chun I, 73 Hawai'i at 11, 14, 828 P.2d at 261, 263. Based on Chun I, the circuit court likewise remanded the retired teachers' complaint to the ERS for an administrative hearing. The two matters were then consolidated for hearing by the Board.
Before the administrative hearing commenced, the Retirees moved: (1) to disqualify two trustees of the ERS--Kenneth Matsuura and Annette Hee--from participation in the hearing on the basis of alleged "actual" bias; (2) to disqualify attorney Mark Bennett from representing the ERS at the hearing by virtue of an alleged conflict of interest; and (3) to postpone the hearing of the Retirees' appeals until (a) the recently created seat for a "retirant" trustee was filled, see supra note 4, and (b) the Board appointed an "administrator" in accordance with the provisions of HRS § 88-29, as amended, see supra note 5. The Board entertained arguments regarding the foregoing motions on February 27, 1995 and, four days later, orally denied them all.
1. [The Retirees] have the burden of producing evidence and the burden of persuasion in this matter. The degree of proof is by a preponderance of the evidence.
2. Regulations of the Department of Education of the State of Hawaii refer to the Summer Months as summer vacation; there is no statutory definition of the term "payment of salary in lieu of vacation" as that term is used in HRS § 88-81.
3. [The ERS's] longstanding practice and its construction of HRS § 88-81 in treating the Summer Months as paid vacation and the Lump Sum Payment as payment of salary in lieu of vacation is correct.
4. [The ERS's] longstanding practice and its construction of HRS § 88-81 in that regard conforms with law, is consistent with the [ERS's] treatment of other State employees and retirees[,] and is not unfair or unjust to [the Retirees] or to other State employees or retirees.
Based upon these COLs, the Board entered a "decision" denying all of the Retirees' claims.