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The Respondent is Domain Admin, PrivacyProtect.org of Queensland, Australia / Ma Ying Jo of Shanghai, China.
The disputed domain name <intesasanpao.com> is registered with RegisterMatrix.com Corp. (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on April 9, 2013. On April 9, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 16, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 17, 2013, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on April 18, 2013.
The Center appointed Cherise Valles as the sole panelist in this matter on May 23, 2013. 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 relevant trademark in this Complaint is INTESA SANPAOLO which the Complainant uses in connection with banking and financial services. The Complainant is the foremost Italian banking group and a main protagonist in the European financial arena. The company, Intesa Sanpaolo, is the resulting of a merger (effective as of January 1, 2007) between Banca Intesa S.p.A. and Sanpaolo IMI S.p.A., two of the top Italian banking groups.
Intesa Sanpaolo contends it is among the top banking groups in the euro zone, with a market capitalisation exceeding 29,8 billion euro, and the undisputed leader in Italy, in all business areas (retail, corporate and wealth management). With a network of approximately 5,700 branches that are well-distributed throughout Italy, and a market share of more than 17% in most Italian regions, Intesa Sanpaolo offers its services to approximately 11 million customers. Intesa Sanpaolo has a strong presence in Central-Eastern Europe with a network of approximately 2,000 branches and over 8,5 million customers. Moreover, its international network that specialises in supporting corporate customers is present in 29 countries, in particular in the Mediterranean as well as in other areas where Italian companies are very active, such as the United States of America,the Russian Federation, China and India.
The disputed domain name was registered on December 16, 2012.
The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
- The disputed domain name is confusingly similar or identical to the Complainant's registered trademark, INTESA SANPAOLO, in light of the fact that it wholly incorporates the Complainant's mark.
- The Complainant states that the Respondent should be considered as having no rights or legitimate interests in the disputed domain name. The Complainant has never licensed or otherwise permitted the Respondent to use its trademarks or to register any domain name that included its trademarks.
- The Complainant asserts that the disputed domain name was registered in bad faith. The mere fact of registration of a domain name that is confusingly similar or identical to a famous trademark by an entity that has no relationship to that mark is itself evidence of bad faith registration and use.
The Respondent has not filed a response to the Complainant’s contentions.
The Respondent has failed to file a response in these proceedings and is therefore in default and the Panel may draw appropriate inferences from the available evidence.
- Italian trademark registration n. 1042140 “INTESA SANPAOLO”, applied on February 2, 2007 and granted on March 07, 2007, in classes 9, 16, 35, 36, 38, 41 and 42.
The Complainant owns many domain names that contain the term “intesa sanpaolo”.
The Panel finds that the Complainant’s marks are distinctive and that the disputed domain name, <intesasanpao.com>, is confusingly similar to the Complainant’s mark as it merely deletes two letters from the Complainant’s mark.
“It has long been held that… the addition of a few letters, especially where those letters form a generic expression indicating a company or an activity in which the trademark owner operates does not detract from confusing similarity….” Graybar Services Inc. v. GrayBar Elec, Grayberic Lawrenge, WIPO Case No. D2009-1017 (finding <grayberinc.com> confusingly similar to GRAYBAR). The Panel finds that the deletion of the two letters “LO” do not detract from the confusing similarity between the Complainant’s mark and the disputed domain name.
The Complainant submits that the Respondent is not in any way associated with the Complainant and has never sought nor received authorization or a license to use the Complainant’s valuable and distinctive INTESA SANPAOLO trademark in any way or manner. The Respondent has not and cannot demonstrate that it has ever made any legitimate offering of goods or services under the Complainant’s INTESA SANPAOLO trademark. The Respondent simply utilizes a domain name that is very similar to the Complainant’s mark, with the clear intent to confuse Internet users and improperly redirect traffic. This is a clear violation of the Policy. See, e.g., Graybar Services Inc. v. Graybar Elec, Grayberinc Lawrenge,supra.
Furthermore, there is no evidence on record that the Respondent has been commonly known by the disputed domain name or that the Respondent is making, or intends to make, a legitimate noncommercial or fair use of the disputed domain name. The Respondent, therefore, has no rights or legitimate interests with respect to the use of the disputed domain name.
Finally, the Complainant submits that the Respondent is not making any fair or legitimate non-commercial use of the disputed domain name.
The Complainant submits that the Respondent is intentionally attempting to divert, for commercial gain, Internet users to a website containing offers from the Complainant’s competitors in the banking and financial services sector. This creates a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the disputed domain name and the websites to which it redirects. The Complainant further submits the registration and use of a domain name to re-direct internet users to websites of competing organizations constitute bad faith registration and use under the Policy. Where a respondent is found to be diverting users to its website (and/or the websites of associated third parties) to generate traffic and sales commissions for its own commercial benefit, such conduct is uniformly recognized by UDRP panels as constituting bad faith under the Policy. See YAHOO! INC. v. David Murray, WIPO Case No. D2000-1013 (finding bad faith where respondent chooses a domain name similar to the complainant’s mark for a site which offers services similar to the complainant); Edmunds.com v. Ultimate Search, Inc., WIPO Case No. D2001-1319 (“Registration and use of a domain name to redirect Internet users to websites of competing organizations constitutes bad faith registration and use under the Policy”); Netwizards, Inc. v. Spectrum Enterprises, WIPO Case No. D2000-1768 (“Registration and continued use of the contested domain name for re-directing Internet users, i.e. particularly customers and potential customers of the Complainant, from the Complainant’s website to the website of…a company which directly competes with the Complainant, constitutes bad faith registration and use”).
The Complainant also submits that the use of the disputed domain name, which allows accessing to the web sites of the Complainant’s competitors, causes damage to the latter, due to the fact that the Complainant’s current clients are likely to be misled and it may lose potential clients. See Microsoft Corporation v. StepWeb WIPO Case No. D2000-1500.
Furthermore, considering that the disputed domain name is almost identical to the Complainant’s trademark, the Panel finds that the Respondent registered the disputed domain name in order to create a likelihood of confusion with the Complainant’s trademarks and thus to profit from its reputation. The registration without authorization of a domain name that is identical to a complainant’s famous mark is evidence of bad faith, and the knowledge of the mark at the time of registration of the domain name suggests bad faith. See PepsiCo, Inc. v. Paul J. Swider, WIPO Case No. D2002-0561. Moreover, as stated in the Amendment to the Complaint, Ma Ying Jo has been involved in several other typosquatting cases in connection with INTESA SANPAOLO.
The Complainant further submits that the Respondent appears to have utilized a privacy registration program. It is clear to the Panel that the Respondent has intentionally hidden its true identity and contact information. “[T]he use of a proxy service would more usually (although not necessarily always) be indicative that the respondent is seeking to hide its activity from scrutiny in proceedings under the Policy. The natural inference from this is a negative one – that the respondent has ‘something to hide”. The Saul Zaentz Company d/b/a Tolkein Enterprises v. Eurobox Ltd. / “The Saul Zaentz Company”, WIPO Case No. D2008-0156. In this case, the Panel draws a negative inference from the Respondent’s use of the privacy registration service.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <intesasanpao.com> be transferred to the Complainant.

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The publications on superheavy elements and long-lived isomeric states can be downloaded.
1) Nuclear Resonance Absorption in Dy161 Situated in Dy2O3 and Dysprosium Iron Garnet, S. Ofer, P. Avivi, R. Bauminger, A. Marinov and S.G. Cohen, Phys. Rev. 120, (1960) 406-410.
2) Study of the Internal Fields Acting on Iron Nuclei in Iron Garnets, Using the Recoil-Free Absorption in Fe57, of the 14.4 keV Gamma Radiation from Fe57m, R. Bauminger, S.G. Cohen, A. Marinov and S. Ofer, Phys. Rev. 122, (1961) 743-748.
3) Study of the Low Temperature Transition in Magnetite and the Internal Fields Acting on Iron Nuclei in Some Spinel Ferrites, Using Mossbauer Absorption, R. Bauminger, S.G. Cohen, A. Marinov, S. Ofer and B. Segal, Phys Rev. 122, (1961) 1447-1450.
4) Hyperfine Interactions in the Ground State and First Excited State of Dy161 in Dysprosium Iron Garnet, R. Bauminger, S.G. Cohen, A. Marinov and S. Ofer, Phys. Rev. Letters 6, (1961) 467-470.
5) Nuclear Moments of States of Dy161, R. Bauminger, S.G. Cohen, A. Marinov and S. Ofer, Proceedings of the Rutherford Jubilee Conf., Manchester, (1961) 329-332.
6) Studies of the Internal Fields Acting on Nuclei in Ferrimagnetic and Paramagnetic Solids Using Recoil-Free Resonance Absorption (Mossbauer Effect), R. Bauminger, S.G. Cohen, A. Marinov and S. Ofer, Proceedings of the International Conference on Magnetism and Crystallography, Kyoto, Japan, 1961, Vol. 1, 123-124.
7) Mossbauer Effect Experiments in Jerusalem, R. Bauminger, S.G. Cohen, A. Marinov and S. Ofer, Proceeding of the Second International Conference on the Mossbauer Effect, Saclay, France, edited by D.M.J. Compton, A.M. Schoen, 1961, 177-181.
8) Inhomogeneous Quadrupole Interactions and the Mossbauer Effect in Ta181, S.G. Cohen, A. Marinov and J.I. Budnick, Phys. Letters 12, (1964) 38-40.
9) Isobaric-Analogue States in Cu65, L.L. Lee, Jr., A. Marinov and J.P. Schiffer, Phys. Letters 8, (1964) 352-354.
10) New Isotopes K46 Produced with the Ca48 (d,α)K46 Reaction, A. Marinov and J.R. Erskine, Phys. Letters 14, (1965) 46-48.
11) Dependence of the Angular Distribution in the (α,p) Reaction on the Total Angular-Momentum Transfer, L.L. Lee, Jr., A. Marinov, C. Mayer-Boricke, J. P. Schiffer, R.N. Bassel, R.M. Drisko and G.R. Satchler, Phys. Rev. Letters 14, (1965) 261-263.
12) Measurements of Proton Strength Functions, A.J. Elwyn, A. Marinov and J.P. Schiffer, Phys. Rev. 145, (1966) 957-962.
13) Energy Levels in Sc49 from Ca48(He3,d)Sc49 and other Reactions, Proceeding from Ca48, J.R. Erskine, A. Marinov and J.P. Schiffer, Phys. Rev. 142, (1966) 633-637.
14) Measurement of the Spins of Some States in Fe55, L.L. Lee, Jr., D.S. Gemmel, A. Marinov and J.P. Schiffer, Phys. Rev. 144, (1966) 923- 927.
15) Studies of Elastic Scattering of Protons and Deuterons by Calcium Isotopes, A. Marinov, L.L. Lee, Jr. and J.P. Schiffer, Phys. Rev. 145, (1966) 852-861.
16) Isobaric Analog States in I131, J. Burde, L. Birstein, G. Engler, A. Ginsburg, A.A. Jaffe and A. Marinov, Inter. Conf. on Isobaric Spin in Nuclear Physics, Tallahassee, Florida (1966) 631-639.
17) Isobaric Analog States in 75As, Ch. Drory, A. Marinov, Sh. Mordechai, J. Burde, G. Engler, E. Navon and Y. Tikochinsky, Inter. Conf. on Nuclear Physics, Gatlinburg, Tennessee (1966), (Academic Press) 274-277.
18) Isobaric-Analog States in Sc49, K.W. Jones, J.P. Schiffer, L.L. Lee, Jr., A. Marinov and J.L. Lerner, Phys. Rev. 145, (1966) 894-900.
19) Energy Levels of Ca48 and Ca40 as Observed with Inelastic Scattering of 11.5-MeV Protons, A. Marinov and J.R. Erskine, Phys. Rev. 147, (1966) 826-828.
20) Dependence of the Angular Distribution of the (d,p) Reaction on the Total Angular-Momentum Transfer II, J.P. Schiffer, L.L. Lee, Jr., A. Marinov and C. Mayer-Boricke, Phys. Rev. 147, (1966) 829-835.
21) The Ca46(He3,d)Sc47 Reaction, J.J. Schwartz, W. Parker-Alford and A. Marinov, Phys. Rev. 153, (1967) 1248-1252.
22) Scattering of Protons Near Thresholds of (p,n) Reactions to Analogue States, E. Friedman, A. Ginzburg, A.A. Jaffe and A. Marinov, Nuclear Phys. A110, (1968) 300-304.
23) Elastic and Inelastic Protons Scattering from 40Ca and Two-Particle One- Hole States in 41Sc, A. Marinov, Ch. Drory, E. Navon, J. Burde and G. Engler, Phys. Rev. Letters 23, (1969) 23-26.
24) Isobaric Analogue States of Ruthenium Isotopes, E. Friedman, B. Mandelbaum, J. Zioni, A.A. Jaffe, A. Marinov, A. Ginzburg and Z. Elitzur, Nuclear Phys. A139, (1969) 425-433.
25) Study of Elastic and Inelastic Scattering of Protons from 128Te and 130Te at Isobaric Analog Resonances, J. Burde, G. Engler, A. Ginzburg, A.A. Jaffe, A. Marinov and L. Birstein, Nuclear Phys. A141, (1970) 375- 399.
26) The Character of Excited States in 41Sc Studied by Elastic and Inelastic Proton Scattering from 40Ca, A. Marinov, Ch. Drory, E. Navon, J. Burde and G. Engler, Nucl. Phys. A145, (1970) 534-548.
27) Evidence for the Possible Existence of a Superheavy Element with Atomic Number 112, A. Marinov, C.J. Batty, A.I. Kilvington, G.W.A. Newton, V.J. Robinson and J.D. Hemingway, Nature 229, (1971) 464-467.
28) Isobaric Analogue Resonances in 127I, 125I and 123I, J. Burde, G. Engler, A. Ginzburg, V. Shitzer, A.A. Jaffe, A. Marinov and L. Birstein, Nucl. Phys. A167, (1971) 583-601.
29) The Level Structure of 46K Studies by Comparison of the (d,α) Reactions on 42Ca and 48Ca, M. Paul, A. Marinov, Ch. Drory, J. Burde, E. Navon and Sh. Mordehai, Nucl. Phys. A168, (1971) 267-272.
30) Spontaneous Fission Previously Observed in a Mercury Source, A. Marinov, C.J. Batty, A.I. Kilvington, J.L. Weil, A.M. Friedman, G.W.A. Newton, V.J. Robinson, J.D. Hemingway and D.S. Mather, Nature 234, (1971) 212- 215.
31) Status Report of Rutherford Laboratory Experiments, A. Marinov, Invited talk given in the Third International Transplutonium Element Symposium, Argonne, 1971, Conf-711078, ZAED No. 3, A340892 (1972).
32) Velocity Measurements of Recoil Nuclei from α-Decay and the Determination of their Mass, C.J. Batty, A.I. Kilvington and A. Marinov, Nucl. Inst. and Methods 99, (1972) 179-182.
33) Study of Elastic and Inelastic Scattering of Protons from 74Ge at Isobaric Analogue Resonances, Ch. Drory, A. Marinov, E. Navon, J. Burde, Sh. Mordechai, G. Engler and M. Paul, Nucl. Phys. A275, (1977) 100-110.
34) Particle-Hole States in 42K Studies by the 44Ca(d,α)42K Reaction, M. Paul, A. Marinov, J. Burde, Ch. Drory, J. Lichtenstadt, Sh. Mordechai and E. Navon, Nucl. Phys. A289, (1977) 94-108.
35) Study of the 41K(d,p)42K Reaction, J. Lichtenstadt, A. Marinov, M. Paul and J. Burde, Nucl. Phys. A311, (1978) 61-74.
36) Production of Actinides by Secondary Reactions in the Bombardment of a Tungsten Target with 24 GeV Protons, A. Marinov (Invited Talk), S. Eshhar and J.L. Weil, Proc. Int. Symp. on Superheavy Elements, Lubbock, Texas, 1978, 72-80.
37) Study of Au, Tl and Pb Sources Separated from Tungsten Targets that were Irradiated with 24 GeV Protons, Indications for the Possible Production of Superheavy Elements, A. Marinov (Invited Talk), S. Eshhar, and B. Alspector, Proc. Int. Symp. on Superheavy Elements, Lubbock, Texas, 1978, 81-88.
38) Study of Isobaric Analogue States in 49Sc and Core Excited States in 49Ca, E. Navon, A. Marinov, I. Lichtenstadt, Ch. Drory, R. Benin, A. Knoll, J. Burde and M. Paul, Nucl. Phys. A329, (1979) 127-140.
39) An Application of SSNTD to Nuclear Physics: Search for Superheavy Elements, R. Brandt, T. Lund, D. Molzahn, P. Vater, H. Jungelas and A. Marinov, Nucl. Inst. and Meth. 173, (1980) 121-125.
40) Search for Spontaneous Fission Emitters in Atlantis II (Part II), T. Lund, R. Brandt, D. Molzhan, G. Tress, P. Vater and A. Marinov, Zeit. Phys. A, 300, (1981) 285-288.
41) Selective Population of States in 36Ar by the 12C(28Si,α)36Ar Reaction, M. Paul, I. Labaton, D. Fink, A. Marinov and O. Meirav, a) Fizika, 13, Sup., 41 (1981), b) Phys. Rev. C 26, (1982) 1295-1298.
42) Consistent Interpretation of the Secondary-Reaction Experiments in W Targets and Prospects for Production of Superheavy Elements in Ordinary Heavy-Ion Reactions, A. Marinov, S. Eshhar, J.L. Weil and D. Kolb, Phys. Rev. Letters 52, (1984) 2209-2212; 53, 1984 1120 (E).
43) The Prospects to Produce the Superheavy Elements in Heavy-Ion Accelerators Based on the Secondary Reaction Experiments in CERN W Targets, A. Marinov, (Invited talk), S. Eshhar, J.L. Weil and D. Kolb, Proc. Inter. Symp. on In-Beam Nuclear Spectroscopy, Edited by Z.S. Dombradi and T. Fenyes, Debrecen, Hungary (1984) 433-438.
44) Study of Proton-Hole States in 61Co Using the 62Ni(d,3He)61Co Reaction at 78 MeV, A. Marinov, W. Oelert, S. Gopal, G.P.A. Berg, J. Bojowald, W. Hurlimann, I. Katayama, S.A. Martin, C. Mayer-Boricke, J. Meissburger, J.G.M. Romer, M. Rogge, J.L. Tain, P. Turek, L. Zemlo, R.B.M. Mooy, P.W.M. Glaudemans, S. Brant, V. Paar, M. Vouk and V. Lopac, Nucl. Phys. A431, (1984) 317-343.
45) Proton-Hole States in 57Co Studied with the 58Ni(d,3He)57Co Reaction at 78 MeV, A. Marinov, W. Oelert, S. Gopal, B. Brinkmoller, G. Hlawatsch, C. Mayer-Boricke, J. Meissburger, D. Paul, M. Rogge, J.G.M. Romer, J.L. Tain, P. Turek. L. Zelmo, R.B.M. Mooy, P.W.M. Glaudemans, S. Brant, V. Paar, M. Vouk and V. Lopac, Nucl. Phys. A438, (1985) 429-449.
46) Experiments on Secondary Reaction Products from High Energy Spallation, A. Marinov, Invited talk given in the 7th Europhysics Study Conference on Synthesis and Structure of Exotic Nuclei and Atoms, Varna, Bulgaria, September 1985.
47) Evidence for Long-Lived Isomeric States in Neutron-Deficient 236Am and 236Bk Nuclei, A. Marinov, S. Eshhar and D. Kolb, Phys. Letters 191B, (1987) 36-40.
48) Neutron-Deficient Actinides and Superheavy Elements via Secondary Reactions, A. Marinov, Invited talk in Proc. of the 6th Adriatic Int. Conf. on Nucl. Phys., "Frontiers on Heavy-Ion Physics", Dubrovknik, Yugoslavia, p. 179-190, Editors: N. Cindro, W. Greiner and R. Caplan, World Scientific, 1987.
49) Study of Secondary Reaction Experiments in the Superheavy and Actinide Regions, A. Marinov, S. Eshhar and D. Kolb, Proceedings of the 5th Int. Conf. on Nuclei far from Stability, Rosseau Lake, Canada, Vol. 1, p. 12, September 1987, and in AIP Conference Proceedings 164, Editor: I.S. Towner, 796-799, 1988.
50) Study of Long-Lived Superheavy Elements in W Targets via Secondary and Direct Heavy-Ion Reactions, A. Marinov, Invited Talk in "Intern. Symp. On Structure and Reactions of Unstable Nuclei", Eds. K. Ikeda and Y. Suzuki, Niigata, Japan, World Scientific (1991) 317-324..
51) The Evidence for Production of the Superheavy Element with Z=112 via Secondary and Direct Heavy-Ion Reactions, A. Marinov, S. Gelberg and D. Kolb, 6th Int. Conf. on Nuclei Far From Stability and 9th Int. Conf. on Atomic Masses and Fundamental Constants, Bernkastelkues, Institute of Physics Conference Series 132, Germany, 437-442, 1992.
52) The Evidence for Element Z=112 via Secondary and Direct Heavy-Ion Reactions, A. Marinov, S. Gelberg and D. Kolb, Invited talk, Int. School-Seminar on Heavy Ion Physics, Dubna, Russia, Eds. Yu Ts. Oganessian, Yu. E. Penionzhkevid and R. Kalpakchieva, Vol.1 162-171, 1993.
54) Discovery of Strongly Enhanced Low Energy α-Particle Decay Probably to Superdeformed Band and Evidence for Long-Lived Proton Radioactivity Produced by the 16O + 197Au Reaction at 80 Mev, A. Marinov, (Invited Talk), S. Gelberg and D. Kolb, 15 European Nucl. Phys. Divisional Conference, Lend-95, St. Petersburg, Russia, Ed. Yu.Ts. Oganessian, World Scientific, (1995) 537-544.
55) Discovery of Strongly Enhanced Low Energy α Decay of a Long-Lived Isomeric State Obtained in 16O + 197Au Reaction At 80 Mev, Probably to Superdeformed Band, A. Marinov, S. Gelber and D. Kolb, Mod. Phys. Lett. A11 (1996) 861-869.
56) Evidence for Long-Lived Proton Decay not Far From The beta-Stability Valley, Produced by the 16O + 197Au Reaction at 80 Mev, A. Marinov, S. Gelberg and D. Kolb, Mod. Phys. Lett. A11 (1996) 949-956.
57) Isomeric States in the Second Well of the Potential and Long Lived Superheavy Elements, A. Marinov, S. Gelberg and D. Kolb, Int. Sym. on Exotic Nuclear Shapes, Eds. Zs. Dombradi, Z. Gacsi and A. Krasznahorkay, Debrecen, Hungary (1997) APH N.S. Heavy Ion Physics 7 (1998) 47-50.
58) Super- and Hyper-deformed Isomeric states and Long-Lived Superheavy Elements, A. Marinov, S. Gelberg, D. Kolb and J.L. Weil, Proc. Sec. Int. Conf. On Fission and Properties of Neutron-Rich Nuclei, Eds. J.H. Hamilton, W.R. Phillips and H.K. Carter, St. Andrews, Scotland (1999) 231-234.
59) Semiempirical Shell Model Masses with Magic Proton Number Z = 126 for Superheavy Elements, S. Liran, A. Marinov and N. Zeldes, Phys. Rev. C 62 (2000) 047301, 1-4.
60) Abnormal Radioactive Decays out of Long-Lived Super- and Hyper-deformed Isomeric States, A. Marinov, S. Gelberg and D. Kolb, Acta Phys. Hung. New Ser. Heavy Ion Phys. 13 (2001) 133-137.
61) Semiempirical Shell Model Masses with Magic Proton Number Z = 126 for Translead Elements, S. Liran, A. Marinov and N. Zeldes, Hyp. Interac. 132 (2001) 425-432.
62) Semiempirical Shell Model Masses with Magic Proton Number Z = 126 for Translead Elements with N ≤ 126, S. Liran, A. Marinov and N. Zeldes, Phys. Rev. C 63 (2001)017302, 1-4.
63) Semiempirical Shell Model Tabulated Masses for Translead Elements with Magic Proton Number Z = 126, S. Liran, A. Marinov and N. Zeldes, 2001, arXiv:nucl-th/0102055.
64) Discovery of Long-Lived Shape Isomeric States which Decay by Strongly Retarded High-Energy Particle Radioactivity, A. Marinov, S. Gelberg and D. Kolb, Int. J. Mod. Phys. E10 (2001) 185-208.
65) Strongly Enhanced Low Energy α-Particle Decay in Heavy Actinide Nuclei and Long-Lived Superdeformed and Hyperdeformed Isomeric States, A. Marinov, S. Gelberg , D. Kolb and J. L. Weil, Int. J. Mod. Phys. E10 (2001) 209-236.
66) Application of Semiempirical Shell Model Masses based on a Proton Magic Number Z = 126 to heavy and Superheavy Nuclei, S. Liran, A. Marinov and N. Zeldes, Phys. Rev. C 66 (2002) 024303, 1-5.
67) New Outlook on the Possible Existence of Superheavy Elements in Nature, A. Marinov, S. Gelberg, D. Kolb, R. Brandt, and A. Pape, Phys. Atom. Nucl. 66 (2003) 1137-1145.
68) Coherent Description for Hitherto Unexplained Radioactivities by Super- and Hyperdeformed Isomeric States, A. Marinov, S. Gelberg, D. Kolb, R. Brandt and A. Pape, Int. J. Mod. Phys. E12 (2003) 661-668.
69) Super- and Hyperdeformed Isomeric States and Long-Lived Superheavy Elements, A. Marinov, S. Gelberg, D. Kolb, R. Brandt, R.V. Gentry and A. Pape, 2nd Int. Conf. on the Chemistry and Physics of the Transactinide Elements (TAN 03) Napa, California,2003, p. 31; arXiv:nucl-ex/0405020.
70) Response to the IUPAC/IUPAP Joint Working Party Second Report 'On the Discovery of Elements 110-118', A. Marinov, S. Gelberg, D. Kolb and G. W. A. Newton, 2004, arXiv:nucl-ex/0411017.
71) The Chemical Separation of Eka-Hg from CERN W Targets in view of Recent Relativistic Calculations, D. Kolb, A. Marinov, G.W.A. Newton and R. Brandt, Kerntechnik 70 (2005) 167-169.
72) Existence of Long-lived Isomeric States in Naturally-occurring Neutron-deficient Th Isotopes, A. Marinov, I. Rodushkin, Y. Kashiv, L. Halicz, I. Segal, A. Pape, R. V. Gentry, H. W. Miller, D. Kolb and R. Brandt, Phys. Rev. C 76, 0211303(R) (2007).
73) Existence of long-lived isotopes of a superheavy element in natural Au, A. Marinov, I. Rodushkin, A. Pape, Y. Kashiv, D. Kolb, R. Brandt, R.V. Gentry, H.W. Miller, L. Halicz, I. Segal, Int. J. Mod. Phys. E 18 (2009) 621-629.
74) Reply to "Comment on 'Existence of long-lived isomeric states in naturally-occurring neutron-deficient Th isotopes'" ,A. Marinov, I. Rodushkin, Y. Kashiv, L. Halicz, I. Segal, A. Pape, R. V. Gentry, H. W. Miller, D. Kolb, and R. Brandt, Phys. Rev. C 79, 049802 (2009).
76) Response to " 'Discovery of the element with atomic number 112' by Robert C. Barber, Heinz W. Gäggeler, Paul J. Karol, Hiromichi Nakahara, Emanuele Vardaci and Erich Vogt (PAC-REP-08-03-05)", A. Marinov, D. Kolb and J. L. Weil, arXiv:0909.1057 (2009) .
77) Enrichment of the Superheavy Element Rg in Natural Au, A. Marinov, A. Pape, D. Kolb, L. Halicz, I. Segal, N. Tepliakov, Y. Kashiv, and R. Brandt, Int. J. Mod. Phys. E 20 (2011) 2391-2401.
A. Marinov, A. Pape, Y. Kashiv, D. Kolb, L. Halicz, I. Segal and R. Brandt, Int. J. Mod. Phys. E 20 (2011) 2403-2406.

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• “Toxin diversity and biology of neglected venomous species in the era of modern venomics“.
iDiv annual conference 2017, Leipzig, Germany, 19.09.2017.
• “Dark Venomics. Toxin evolution of the first venomous crustacean and other neglected venomous invertebrates“.
Invited talk, iDiv seminar series, Max Planck Institure for Evolutionary Antropology lecture Hall, Leipzig, Germany, 23.11.2016.
• “Dark Venomics: transcriptomics, proteomics and morphology enlight the first venomous crustacean, cave dwelling Remipedia“.
Invited talk, Congress of the International Society of Toxinology, Oxford University, United Kingdom, 30.09.2015.
• “The first venomous crustacean, Speleopnectes tulumensis (Remipedia) and its unique venom cocktail“.
Invited talk at the Venom Day, Bangor University, United Kingdom, 16.11.2013.
• “Diving Deep for venomous crustaceans“.
Nature live talks for public audience in the David Attenborough studio, Natural History Museum, London, United Kingdom, 22.08.2013.
• “On the trail of the first venomous crustaceans: Transcriptome profiling and 3D reconstruction of venom glands of underwater cave dwelling Remipedia“.
Invited talk to “venomics” session at the 2nd BioSyst Congress, Vienna, Austria, 18.-23.02.2013.
• “Pancrustacean phylogenomics: an ambiguous path to paddle“.
Invited talk to Department seminar talk at Queen Mary University, London, United Kingdom, 25.01.2013.
• “Pancrustacean phylogenomics: a closer inspection of potential and pitfalls“.
Invited talk to the Hennig Society Meeting Phylogenomics-Symposium, Riverside, California, USA, June 24- 30, 2012.
• “Pancrustacean and arthropod evolution using phylogenomic data – pitfalls and promises of transcriptomic data analyses“.
Invited talk to Department of Molecular Biology, Faculty of Science, University of South Bohemia, Czech Republic. 14.12.2011.
• “Discovering the evolution of pancrustaceans within arthropods: prospects and pitfalls of molecular methods including phylogenomic data“.
Invitated talk as keynote speaker, arthropod session: Deep Metazoan Phylogeny Congress, München, Germany 11.-14. October 2011.
• “Phylogenomic and evolutionary aspects of Pancrustacea and Remipedia -the hope and headache of “phylogenomics“.
• “Evolutionary aspects to Remipedia and Pancrustacea – the hope and headache of phylogenomic data“, v. Reumont, Misof.
Invited talk to University of Greifswald, Zoologisches Kolloquium, Greifswald, Germany, 28.04.2011.
Deutsche Crustaceologentagung, Regensburg Germany. 08.04.2011.
• “Phylogenomics of crustaceans – hope and headache“, v. Reumont, Misof, Waegele.
Biosystematics meeting, Berlin, Germany, 23.02.2011.
• “Molecular phylogeny of crustaceans“, v. Reumont, Waegele.
DFG DMP meeting, Bonn, Germany. 15.05.2009.
• “Tauchen in das Erdaltertum – Auf der Suche nach den Rätselhaften Remipedia in Mexico“.
Kuratorium Alexander Koenig Stiftung, ZFMK Bonn, Germany, 22.03.2009.
• “Molecular insights to cerustacean phylogeny within arthropods – present, promises and prospective (home)work“, v. Reumont, Meusemann, Misof, Waegele.
Celebrating darwin: From the origin of species to Deep Metazoan phylogeny, Berlin, Germany, 04.03.2009.
• “A new approach to test the Mandibulata concept and to infer the phylogeny of Crustacea“, v. Reumont, Meusemann, Misof, Waegele.
SSE Evolution Congress 2008, Minnesota, USA, 22.06.2008.
• “Phylogenie der Crustacea“, v. Reumont, Waegele, Waloßek.
DFG DMP meeting, Bonn, Germany. 15.01.2008.
• “Phylogeny of the Crustacea formerly focused on the Entomostraca“, v. Reumont, Waegele, Waloßek.
• “Phylogeny of the Entomostraca“, v. Reumont, Waegele, Waloßek.
DFG DMP Meeting Göttingen, Germany. 17.11.2006.


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As we promised in an earlier post, we provide here a deeper analysis of the Second Circuit’s holding in United States v. Caronia and the context in which it should be viewed by industry.
Since the 2004 Warner-Lambert settlement, the federal government has investigated hundreds of companies for promotion of approved products for unapproved uses, commonly known as “off-label promotion.” Many of the publicly known investigations have been fueled by whistleblowers who file qui tam suits under the federal False Claims Act ("FCA") in hopes of gaining a share of the government’s recovery. These civil suits rely on an underlying violation of the Federal Food, Drug, and Cosmetic Act ("FDCA") to support the theory that certain claims for reimbursement from federal programs were false. The government also has litigated a number of criminal prosecutions of companies and individuals for their alleged off-label promotion. In light of the Second Circuit’s statement about the Agency’s wrongful criminalization of this type of conduct, we address below whether Caronia is likely to curtail future enforcement efforts by the government.
Much to the surprise of many companies, the term “off-label promotion” is not found anywhere in the FDCA. FDA’s authority to regulate off-label promotion draws from the FDCA prohibitions against introducing an “unapproved new drug” or a “misbranded” drug into interstate commerce. 21 U.S.C. §§ 331(a), (d). If a company promotes a drug for a use that is not embodied in the FDA-approved labeling, then it can be deemed a “new drug” because it is not generally recognized as safe and effective “for use under the conditions prescribed, recommended, or suggested in the labeling thereof.” 21 U.S.C. § 321(p). This definition of “new drug” requires that the new intended use be evident in the “labeling” of the product. The definition of “labeling” is quite broad. It includes “all labels and other written, printed, or graphic matter . . . accompanying such article,” 21 U.S.C. § 321(m), and could include brochures, leaflets, letters, and arguably websites. Under this “unapproved new drug” theory, the off-label claims must be contained in the labeling, i.e., the company’s written promotional materials.
Drug and device marketing, however, is often conducted through oral communications between a company’s sales and marketing team and healthcare providers. Therefore, the government may not have evidence sufficient to support an unapproved new drug charge. Instead, the government proceeds under a convoluted misbranding charge, called the “backdoor new drug” charge, to support its civil and criminal cases. Under this theory, a drug is misbranded for failing to bear adequate directions for its intended uses. 21 U.S.C. § 352(f)(1). FDA relies on an exemption contained in the regulations precluding prescription drugs from ever meeting this requirement, 21 C.F.R. § 201.5, and then uses the oral promotional statements of the company’s sales representatives as evidence of the company’s intended use. 21 C.F.R. § 201.128.
The use of speech to support a “backdoor new drug” charge has withstood earlier First Amendment challenges. For example, in Whitaker v. Thompson, 353 F.3d 947 (D.C. Cir. 2004), the plaintiff argued that he had a First Amendment right to label his product with a disease claim, even though FDA had not reviewed and approved the claim. The D.C. Circuit determined that the “use of speech to infer intent, which in turn renders an otherwise permissible act unlawful, is constitutionally valid.” Id. at 953. In fact, it ruled the First Amendment allows “the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.” Id.
The government justifies its crackdown on off-label promotion on the ground that it is protecting the integrity of FDA’s drug approval process. The notion is that a manufacturer might seek approval of a new product for only a narrow (and easily approvable) claim, and once the drug is approved, the sky would be the limit for the company to make other claims that would lead to larger sales. This perception, however, ignores other reasons why a manufacturer would not illegally off-label promote, such as litigation commenced under states’ product liability laws for ineffective products and the resulting reputational harm from such lawsuits.
FDA has made clear that it does not intend to go after all promotional statements. For example, it recognizes that truthful and non-misleading speech about an approved use of an approved drug does not by itself establish a new intended use of the drug. See Declaration of Rachel E. Sherman, submitted in support of Defendant’s Memorandum in Support of Motion to Dismiss, in Par v. United States, No. 1:11-cv-1820, ¶ 14 (D.D.C. Jan. 11, 2012). “While manufacturer speech is always a relevant factor in determining intended use, in the absence of other evidence that an unapproved use is intended, a drug manufacturer that engages in truthful and non-misleading speech about an approved use is not placing itself in violation of the FDCA.” Defendant’s Memorandum in Par, at 27.
FDA also recognizes the value of manufacturers providing off-label information in certain contexts. It has drafted guidance documents describing parameters under which a manufacturer can disseminate reprints of peer-reviewed scientific literature, sponsor educational programs, and respond to unsolicited requests for off-label information. FDA states that if a manufacturer meets the factors contained in the guidance, the Agency will not use the activity as evidence that the company created a new intended use for the product.
On November 30, 2009, a jury found Alfred Caronia guilty of misdemeanor conspiracy to introduce misbranded drugs into interstate commerce. His conviction was based on off-label statements he made while employed as a pharmaceutical sales representative for Orphan Medical, Inc. (“Orphan”). Specifically, Caronia verbally promoted the drug Xyrem, a central nervous system depressant approved only for the treatment of certain categories of narcolepsy patients, to treat a variety of other conditions including insomnia, fibromyalgia, and Parkinson’s. He also promoted Xyrem for use in an unapproved patient population – individuals under the age of 16.
The government began its investigation of Orphan in 2005, when former Orphan saleswoman Shelley Lauterbach filed a qui tam suit against the company. During the course of the investigation, Caronia was recorded on two occasions discussing off-label uses of Xyrem. On both occasions, Caronia was recorded speaking alongside Dr. Peter Gleason, a doctor that Caronia had engaged to participate in “speaker programs” intended to educate other physicians about Xyrem. Caronia and Dr. Gleason discussed off-label uses for Xyrem with Dr. Jeffrey Charo, an undercover informant for the government. In 2006, the government filed charges against Orphan, Dr. Gleason, Caronia, as well as David Tucker (a former Orphan sales manager) for conspiring to promote Xyrem for off-label uses, and thereby introduce a misbranded drug into interstate commerce.
In March 2007, David Tucker pleaded guilty to a single felony misbranding charge. In July 2007, Orphan pleaded guilty to felony charges, and its parent company, Jazz Pharmaceuticals, Inc., agreed to pay $20 million and enter into a Corporate Integrity Agreement to resolve both criminal and civil charges. In August 2008, Dr. Gleason also pleaded guilty to criminal misbranding charges.
Caronia, however, did not plead guilty and filed a motion to dismiss his case based inter alia on First Amendment grounds. The District Court denied his motion, but noted that the allegations against Caronia included First Amendment-protected speech. Nevertheless, the District Court concluded that the government’s interpretation of the FDCA was constitutional under the commercial speech doctrine because it did not limit speech more than was necessary to achieve the government’ objectives. On appeal of Caronia’s criminal conviction, the Second Circuit disagreed.
The Second Circuit first clarified that the government did, in fact, prosecute Caronia for “mere off-label promotion.” Slip op. at 26. The court’s opinion details the government’s statements to that effect, as well as the jury instructions that reflected a focus on the off-label promotion rather than promotion as evidence of the intended use of Xyrem. The court next concluded that strict scrutiny should apply to the government’s interpretation of the FDCA misbranding provisions to prohibit and criminalize off-label promotion. According to the court, the government’s position was speaker-based: many individuals (physicians, researchers, etc.) were permitted to access off-label information and make off-label statements, while others (pharmaceutical companies and sales representatives) were not. It also was content-based because it restricted off-label promotion while permitting favored on-label promotion. The court determined that Caronia’s prosecution failed to pass strict scrutiny.
The court went further. Even assuming that off-label promotion triggered only intermediate scrutiny under the Central Hudson test, the Second Circuit found that Caronia’s prosecution would not pass this lower threshold. First, the off-label speech in question concerned lawful activity and was not false or misleading. Second, while the government’s interests in drug safety and the public health were substantial, its construction of the FDCA to prohibit off-label promotion did not directly advance those interests. Third, because physicians can prescribe and patients can receive drugs off-label, even if pharmaceutical manufacturers could not promote drugs for such uses, prohibition of truthful promotion did not directly further the government’s goals: “the government’s prohibition of off-label promotion by pharmaceutical manufacturers ‘provides only ineffective or remote support for the government’s purpose.’” Id. at 47.
Finally, the court determined that the government’s interpretation of the FDCA – a “complete and criminal ban on off-label promotion by pharmaceutical manufacturers” – was not narrowly drawn to protect its interests. The court construed “the misbranding provisions of the FDCA as not prohibiting and criminalizing the truthful off-label promotion of FDA-approved prescription drugs.” The court cited several less-restrictive methods the government could have used to protect its interests instead, such as developing a warning or disclaimer system, and concluded “that the government cannot prosecute pharmaceutical manufacturers and their representatives under the FDCA for speech promoting the lawful, off-label use of an FDA-approved drug.” Id. at 51.
Under the Federal Rules of Appellate Procedure, the government has a few options for handling the Second Circuit’s decision. Of course the government could do nothing, and let the Caronia decision stand as law in the Second Circuit.
The government also could petition the Second Circuit for a rehearing, or a rehearing en banc, or both. See Fed. R. App. P. 35 – 35.1, 40. Rehearing is generally disfavored, and will not be ordered unless “en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or . . . the proceeding involves a question of exceptional importance.” Id. at Rule 35. Should the government proceed with a rehearing, it must file its petition within 14 days after the entry of judgment, which occurred on December 3, 2012. Therefore, the deadline for this petition is December 17, 2013.
Alternatively, the government may petition for writ of certiorari to the United States Supreme Court. A writ of certiorari is not a matter of right, but of judicial discretion, and the Court may consider granting certiorari if a “Circuit Court decision conflicts with that of another Circuit Court on the same ‘important matter.’” S. Ct. Rule 10. The petition must be filed with the Supreme Court clerk within 90 days of entry of the judgment. S. Ct. Rule 13. Therefore, if no petition for rehearing or rehearing en banc is filed, the government must file a writ of certiorari by March 4, 2013. If the government petitions for a rehearing and/or en banc, then the time to file a writ of certiorari is 90 days from the date of the denial of the rehearing. Even if the Supreme Court grants review, it may dispose of the case by summary affirmance or reversal, or by simply vacating the judgment below and remanding for further proceedings.
There is no circuit split that would make likely the Supreme Court’s granting of the writ. The government may claim that the D.C. Circuit’s opinion in Whitaker v. Thompson creates a split of opinions. Whitaker, however, was not a criminal prosecution like Caronia, and the Second Circuit went to great pains to highlight that Caronia did not involve a situation in which the government used speech as evidence of establishing intended use.
Although oral argument was heard on December 6, 2012, in the Ninth Circuit in another high-profile off-label case, United States v. Harkonen, the former CEO of InterMune was convicted of wire fraud, not the FDCA misbranding charge at issue in Caronia (see our previous posts here and here). While Harkonen’s defense team consistently has attempted to raise the First Amendment issue throughout trial and on appeal, the Ninth Circuit is likely to remain silent on the issue due to the allegations by the government of the false or misleading nature of Harkonen’s statements.
The decision to seek rehearing en banc and/or seek Supreme Court review is made by the Solicitor General of the United States, not FDA. If FDA seeks further review of the decision, we expect that the Solicitor General will surely require FDA to demonstrate why it cannot live with this ruling.
Assuming the Caronia decision stands, can industry expect any changes in FDA’s enforcement focus? The federal government frequently touts the multi-million dollars it has recovered in settlements for off-label promotion cases. It would be premature to believe that the government would give up easily on these high-profile and lucrative recoveries, and we certainly do not expect the case to have any effect on relators, who will continue to bring off-label promotion allegations to the attention of the government. But the Second Circuit’s holding represents an unmistakable setback for the government from continuing business as usual.
Even though the FDCA allows for strict liability prosecution, criminal charges have generally been brought against manufacturers and their agents only in cases involving intentionally false or misleading statements. These selective prosecutions may have been due to prescient prosecutors who recognized the potential First Amendment implications of these cases, or simply an effort to enhance the jury appeal of a case. With Caronia, industry can expect to see even closer review of criminal charges to ensure there is strong evidence that a company lied about the safety or efficacy of a drug or device, or made mistakes and/or incomplete statements about the product at issue. It is unlikely that we will see prosecutors bringing criminal charges against companies, and companies willing to pay money, in cases in which there is strong scientific support for an unapproved use of a product, absent clear evidence that there also were false or misleading statements.
Indeed one of the key factors the government considers in deciding to pursue a criminal off-label case is whether the company had previously sought, and FDA had explicitly denied, the use that the company is allegedly promoting. In such cases, the government generally views the company’s conduct as a direct attack on FDA’s drug approval process, and has been more inclined to prosecute the company criminally. But in light of Caronia, and other FDA guidance, there is a strong argument that the company should be allowed to provide truthful and non-misleading information that may have developed since FDA’s original review of the unapproved use without fear of criminal prosecution.
We wonder if we will see FDA shift its focus to the “unapproved new drug” charge to support off-label promotion cases against pharmaceutical manufacturers. Note that there is no analogous “new device” definition contained in the FDCA. This shift would require evidence of labeling containing the drug’s new intended use. Companies should continue to scrutinize promotional materials to be sure they do not contain false or misleading claims.
Companies also should be wary that FDA may use knowledge of a drug’s intended use as independent evidence to support a misbranding charge. 21 C.F.R. §§ 201.128, 801.4. Under its regulations, FDA requires manufacturers to provide adequate labeling for a product that the company knows is being used off-label, even if there is no active promotion by the manufacturer. This requirement has been rarely enforced, but we are aware of a recent Warning Letter in which it was cited to require changes to a product’s labeling. After Caronia, FDA may look to creative ways, such as this, to curtail off-label promotion without using the manufacturer’s speech.
It is important to note that the holding from Caronia is only the law of the Second Circuit, which covers Connecticut, New York, and Vermont. Given the broad reach of the Commerce Clause, it is difficult to imagine that any FDA-regulated industry can claim that it is not subject to jurisdiction outside the Second Circuit. Indeed the U.S. Attorney’s Office in Boston is the most active prosecutor of off-label promotion cases, but only a handful of the companies it has prosecuted have been headquartered in its district.
The Caronia decision also may have some bearing on the federal False Claims Act, and its state counterparts. In this context, there arguably has always been a requirement that the government demonstrate that the claim involves falsity – thus the name “false claim” – used to obtain fraudulent reimbursement from a federal healthcare program. Caronia makes clear that if promotional statements about a product are true and scientifically supported, FDA cannot prohibit this truthful, non-misleading speech. Therefore it follows that neither can a sister agency of FDA use that same speech to recover hundreds of millions of dollars. Thus we expect companies to challenge the government and relators on their burden to prove that the claim is actually false. This may affect future False Claims Act settlements, which have been some of the government’s most sizable.
Although Caronia has made some waves, the tide has far from turned. Industry remains exposed to substantial risk if it exercises its First Amendment right to free speech by promoting off-label. Now seems like a ripe opportunity for FDA to provide further clarification to industry on how it will proceed in its enforcement actions after Caronia.


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Workers’ Compensation Subrogation: Can Injured Workers Be Made Whole?
A workers’ compensation claim coupled with third-party negligence brings to light the tension in the law between the “made whole” doctrine and the statutory prohibition against double recovery. Whether you represent the client on the workers’ compensation claim, the negligence claim, or both, you must understand the implications of subrogation to maximize recovery for your client.
Workers’ compensation benefits are limited to income and medical benefits. Other types of special damages, such as loss of consortium or pain and suffering, are not compensable under workers’ compensation.
Many of us became lawyers because we hate math. I recall that during law school, you could palpably feel the anxiety level rise in the room each time our tax professor wrote numbers on the board, even if the figures involved were simple. Although the professor often assured us it was third-grade math, the mere thought of adding and subtracting sent many students into a dither. Even if you are mathematically inclined, trying to make heads or tails of workers’ compensation subrogation law can make you reach for antacid tablets and aspirin. For instance, pursuant to Hillman v. American Mutual Liability Ins. Co., 631 S.W.2d 848 (Ky. 1982), if a judgment cannot be satisfied out of the insurance funds, you may be forced to use a formula whereby the injured worker and the workers’ compensation carrier each recover a pro rata share of the available funds in an amount directly proportionate to the relationship between the portion of the judgment subject to subrogation and the portion that is not. This situation is more easily understood by hypothetical.
made whole and take the entire policy to compensate him for his pain and suffering?
its reasoning should be used in highly disputed subrogation issues or to effectuate change in the law.
Apportionment becomes especially complex if the tortfeasor files a third-party complaint against the employer for contribution. For instance, an injured worker files a product liability suit against the maker of a press that caused his injury. The employer intervenes for subrogation against what it paid out in workers’ compensation benefits. The maker of the press then files a third-party complaint again the employer, alleging fault on the part of the employer for failure to install guards on the machine.
Using the numbers from the previous hypothetical, the jury awards $100,000 in damages to the injured worker, with $25,000 allocated for pain and suffering, and $75,000 for medicals and lost income. The jury further finds the maker of the press 75 percent at fault and the employer 25 percent at fault. The employer is allowed to recoup the percentage of benefits it paid under workers’ compensation that was caused by the negligent third party’s fault. Thus, if the employer paid $75,000 medical and income benefits, the employer can recoup 75 percent of that amount, or $56,250.
The analysis is not over, however. The injured employee can only collect 75 percent of his damages because the exclusive remedy provision bars direct recovery from the employer, even though the employer was found to be at fault.12 Now, the total judgment recoverable by the injured employee is $75,000.
What if the tortfeasor only has $25,000 in assets to cover the judgment? The answer seems to require reconciliation of Hillman and Bush—not a simple task. Hillman requires us to distribute the judgment pro rata, so we must compare the portion of the judgment subject to subrogation, and the portion that is not.
suffering caused by the employer? While the Bush decision rejected the “made whole” doctrine, it did not provide instruction on how to reconcile its reasoning with Hillman. Toss Minton into the equation and the subrogation issues become even more complex.
Placing allocation and offsets exclusively into a judge’s hands is a dangerous endeavor in light of the complexities of subrogation law. Being proactive is a better strategy. If you include both the tortfeasor and employer in settlement negotiations, it is possible to engineer a “global settlement” which removes the risk of the trial judge getting it wrong.
by the terms of the agreement.16 Depending on the circumstances, a wiser choice might be to structure the terms of the settlement to include some compensation for lost wages but not impairment of the ability to earn income into the future. While the workers’ compensation carrier would still be entitled to subrogation as to lost wages, the carrier may lose the right to recoup future income benefits paid.
Finally, it is possible to settle the injured workers claim against the tortfeasor and include terms in the settlement agreement that specifically exclude the subrogation claim of the workers’ comp carrier.17 As a practical matter, it may be difficult to get the tortfeasor to agree to such an arrangement since the workers’ comp carrier can pursue the claim against the tortfeasor on its own if it so desires.
3 AIK Selective Self-Insurance Fund v.
Bush, 74 S.W.3d 251, 257 (Ky. 2002).
7 Whittaker v. Hardin, 32 S.W.3d 497 (Ky. 2000).
14 G&J Pepsi-Cola Bottlers, Inc. v. Fletcher, 229 S.W.3d 915 (Ky. App. 2007).
Aluminum Corp., 183 S.W.3d 154 (Ky. 2005).
16 See Whittaker v. Hardin, 32 S.W.3d 497 (Ky. 2000).
17 See AIK v. May, 957 S.W.2d 257 (Ky. App. 1997).

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Whether you had a lot of bills pile up at once, or you simply forgot about a bill that was due, your account(s) ended up in collections. And if that’s happened, you are probably all too familiar with phone calls and notices coming from a collection agency or debt collector. No one likes having that happen — after all, you’re already stressed out enough trying to repay what you owe.
While you still need to pay the debt back in most situations, you do have rights that protect you from being harassed or threatened by anyone looking to get you to pay up. So, if you feel a debt collector is crossing the line, here’s what you need to know.
The Fair Debt Collection Practices Act (FDCPA) was approved by Congress in September 1977 and protects consumers from being mistreated by debt collectors. Because of the FDCPA, debt collectors are legally not allowed to harass you or mislead you in any way (more on this in a moment). So, if you are being harassed by a debt collector, you are able to take legal action because of the FDCPA.
What Is Off-Limits for a Debt Collector?
As we mentioned, debt collectors or representatives from debt collection agencies are not allowed to harass you in any way. This means they can’t threaten you, publish your personal information, use profane language, or repeatedly call you or any third parties about you. They also legally aren’t allowed to threaten you with jail time, wage garnishment, or legal action (unless they intend to take legal action). In fact, debt collectors can’t make any false or misleading claims of any kind.
Debt collectors are also regulated on how and when they contact you. For example, they are not allowed to call you at unusual times (like before 8 a.m. or 8 p.m. unless you specifically request they do so) or contact you by postcard.
This is just a brief overview of what the FDCPA entails. Below is the Act in its entirety. For more information about your debt collection rights, you can read this guide.
(a) Abusive practices. There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.
(b) Inadequacy of laws. Existing laws and procedures for redressing these injuries are inadequate to protect consumers.
(c) Available non-abusive collection methods. Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts.
(d) Interstate commerce. Abusive debt collection practices are carried on to a substantial extent in interstate commerce and through means and instrumentalities of such commerce. Even where abusive debt collection practices are purely intrastate in character, they nevertheless directly affect interstate commerce.
(e) Purposes. It is the purpose of this title [15 USCS § § 1692 et seq.] to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.
(6) after the debt collector knows the consumer is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorney’s name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the debt collector.
(b) Communication with third parties. Except as provided in section 804 [15 USCS § 1692b], without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a post judgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.
(3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy. If such notice from the consumer is made by mail, notification shall be complete upon receipt.
(d) “Consumer” defined. For the purpose of this section, the term “consumer” includes the consumer’s spouse, parent (if the consumer is a minor), guardian, executor, or administrator.
(3) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of section 603(f) or 604(3) of this Act [15 USCS § § 1681a(f) or 1681b(3)].
(6) Except as provided in section 804 [15 USCS § 1692b], the placement of telephone calls without meaningful disclosure of the caller’s identity.
(b) become subject to any practice prohibited by this title [15 USCS § § 1692 et seq.].
(16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency as defined by section 603(f) of this Act [15 USCS § 1681a(f)].
(b) Disputed debts. If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.
(c) Admission of liability. The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.
(b) Authorization of actions. Nothing in this title [15 USCS §§ 1692 et seq.] shall be construed to authorize the bringing of legal actions by debt collectors.
(b) Any person who violates this section shall be liable to the same extent and in the same manner as a debt collector is liable under section 813 [15 USCS § 1692k] for failure to comply with a provision of this title [15 USCS § § 1692 et seq.].
(c) Intent. A debt collector may not be held liable in any action brought under this title [15 USCS § § 1692 et seq.] if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.
(d) Jurisdiction. An action to enforce any liability created by this title [15 USCS § § 1692 et seq.] may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.
(e) Advisory opinions of Commission. No provision of this section imposing any liability shall apply to any act done or omitted in good faith in conformity with any advisory opinion of the Commission, notwithstanding that after such act or omission has occurred, such opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.
(a) Federal Trade Commission. Compliance with this title [15 USCS § § 1692 et seq.] shall be enforced by the Commission, except to the extent that enforcement of the requirements imposed under this title [15 USCS § § 1692 et seq.] is specifically committed to another agency under subsection (b). For purpose of the exercise by the Commission of its functions and powers under the Federal Trade Commission Act [15 USCS § § 41 et seq.], a violation of this title [15 USCS § § 1692 et seq.] shall be deemed an unfair or deceptive act or practice in violation of that Act [15 USCS § § 41 et seq.]. All of the functions and powers of the Commission under the Federal Trade Commission Act [15 USCS § § 41 et seq.] are available to the Commission to enforce compliance by any person with this title [15 USCS § § 1692 et seq.], irrespective of whether that person is engaged in commerce or meets any other jurisdictional tests in the Federal Trade Commission Act [15 USCS § § 41 et seq.], including the power to enforce the provisions of this title [15 USCS § § 1692 et seq.] in the same manner as if the violation had been a violation of a Federal Trade Commission trade regulation rule.
(6) the Packers and Stockyards Act, 1921 [7 USCS § § 181 et seq.] (except as provided in section 406 of that Act [7 USCS § § 226 and 227]), by the Secretary of Agriculture with respect to any activities subject to that Act [7 USCS § § 181 et seq.]. The terms used in paragraph (1) that are not defined in this title [15 USCS § § 1692 et seq.] or otherwise defined in section 3(s) of the Federal Deposit Insurance Act (12 U.S.C. 1813(s)) shall have the meaning given to them in section 1(b) of the International Banking Act of 1978 (12 U.S.C. 3101).
(c) Agency powers. For the purpose of the exercise by any agency referred to in subsection (b) of its powers under any Act referred to in that subsection, a violation of any requirement imposed under this title [15 USCS § § 1692 et seq.] shall be deemed to be a violation of a requirement imposed under that Act. In addition to its powers under any provision of law specifically referred to in subsection (b), each of the agencies referred to in that subsection may exercise, for the purpose of enforcing compliance with any requirement imposed under this title [15 USCS § § 1692 et seq.] any other authority conferred on it by law, except as provided in subsection (d).
(d) Rules and regulations. Neither the Commission nor any other agency referred to in subsection (b) may promulgate trade regulation rules or other regulations with respect to the collection of debts by debt collectors as defined in this title [15 USCS § § 1692 et seq.].
(b) In the exercise of its functions under this title [15 USCS § § 1692 et seq.], the Commission may obtain upon request the views of any other Federal agency which exercises enforcement functions under section 814 of this title [15 USCS § 1692l].
This title [15 USCS § § 1692 et seq.] does not annul, alter, or affect, or exempt any person subject to the provisions of this title [15 USCS § § 1692 et seq.] from complying with the laws of any State with respect to debt collection practices, except to the extent that those laws are inconsistent with any provision of this title [15 USCS § § 1692 et seq.], and then only to the extent of the inconsistency. For purposes of this section, a State law is not inconsistent with this title [15 USCS § § 1692 et seq.] if the protection such law affords any consumer is greater than the protection provided by this title [15 USCS § § 1692 et seq.].
The Commission shall by regulation exempt from the requirements of this title [15 USCS § § 1692 et seq.] any class of debt collection practices within any State if the Commission determines that under the law of that State that class of debt collection practices is subject to requirements substantially similar to those imposed by this title [15 USCS § § 1692 et seq.], and that there is adequate provision for enforcement.
I Found a Judgment on My Credit Report. Now What?
Can a creditor send your credit card bill to a relative? I recently moved locally and the credit card company sent my bill to one of my relatives who lives in another region of the country. I have no idea how they even determined our relationship- they don’t share my last name.
It depends. Creditors aren’t covered by the Fair Debt Collection Practices Act like third party debt collectors are, but there may be state laws that apply. You could try checking with your state consumer protection office or file a complaint with the CFPB.
I tried to make a payment arrangement with a debt collecter and they refused , so i then asked them if i could get a receipt when they recieved my payments they also said no they dont not have to give me anything , so i have no proof in writing that they are recieving my payments or were its going .. Is that legal..
Please submit a complaint to the Consumer Financial Protection Bureau. No, they should not refuse to give you an acknowledgement of payment when you request it.
My husband has 4 medical collections on his credit reports. We attempted to settle with the collection agency on these 4 accounts and was informed that he has several more accounts (that are apparently over 7 years old, since they aren’t on his reports). They insisted that if we wanted to make a settlement offer it had to be on all the accounts they hold not just on the 4. Can they do that? At this point we sent the collection agency a debt validation letter via certified mail but have not received a response yet.
Can I Pay a Creditor Less Than I Owe?
I had a past due amount from smud that was sold to a debt collector but now smud pick it back up and wants it in 30days can they do that after they have sold my debt.
They may not have sold it–they may have simply placed it for collection. But even if they did, presumably they could take it back if the collector was unsuccessful.
Does the collection agency have to provide proof of how the debt reached the level it has? I had a student loan for 22,000 that I defaulted on and it was sent to a collection agency that now says i owe $56,000 but even after numerous requests can not show me how the debt escalated to that amount. They also took my federal tax return of $5000 and they have no documentation of that amount being removed from the debt.
I would recommend you at least get a consultation with a consumer law attorney who understands student loan law to find out if what they have done is illegal. You can locate one through the National Association of Consumer Advocates or via The Student Loan Lawyer website. The other option would be to file a complaint with the CFPB, but given the amount of money you are talking about, in my opinion it would be at least worth talking with an attorney who understands this area of law.
I owed a fine at my local public library, which according to them was in the amount of $4.00. I had special ordered this book from a library out of town. Now, I have received a bill from a collection agency for this library in the amount of $19.00. Am I obligated to pay this fine at both places? Also, why have they been allowed to charge $19.00, which is obviously a lot more than the $4.00 my library says I owe?
The collection agency has likely added on their collection costs. Paying the collection agency should resolve the debt.
Can a third party collector add $400 to your balance after you have arranged to pay off the original balance?
I opened a loan five years ago with a local company. I did not pay the loan because it came out that the employee who opened it was doing illegal practices. The company has continued to run my credit. I have four inquiries this year alone from them. Can they continue to run my credit like this?
I would suggest you report it to the CFPB and your state attorney general or contact a consumer law attorney for assistance.
You have the right under federal law to request verification of the debt. Exactly what they must send you is a bit unclear, but they shouldn’t refuse you this right. You may need to get the CFPB or a consumer law attorney involved.
Is it actually legal for a Collections Agency to tell me “If you pay on time, and pay the agreed amount, you can save your credit score from any negative marks”?
I ask because I paid everything per agreed, on time, and in full (including interest), and I now have a negative collections mark on my credit score from the collections agency. Thankfully it has it as paid in full, but the mark is still there.
If they told you that but then it didn’t happen, then it certainly sounds like a misrepresentation to me. You can either file a complaint with the CFPB or consult a consumer law attorney for help.
Thank you for the insight! I’ve gone ahead and filed a complaint with the CFPB, which was a fantastically easy process. Consider me impressed with the ease-of-use for such a site!
Good to hear. Let us know what happens!
Sprint has sent an account to collections under my name for an account 10 years old. We have received no bill, it is not reported on my credit report. I am not even sure it is my debt, we have switched banks and 10 years of receipts are not available. We have moved from VA to FL. The supposed debt occurred in VA. They have called stating that a lawsuit has been filed against me. What in the world???? Any advice?
Something doesn’t sound right. Are you sure you are dealing with a legitimate collection agency and not a scammer? My understanding is the statute of limitations in Virginia for written contracts is five years, and the same in Florida. Have you received anything in writing (as required by law)? Have you checked out this collector on DebtLookUp.com?
hoping to see if there is anything i can do. I recently had a debt collected for a fine i didnt pay when i was younger. I did not know it but my license was suspended due to the fine. I paid the fine via a check over the phone. So they released my license and i paid the reinstatement fees to dmv. Well then they submitted the check and it didnt go through due to the fact that the lady who took my check added the check number to the account info. They promptly re suspended my license and charged me 55 bucks. I called and talked to them and they said regardless of whos fault it is i was stuck with the extra bill. Plus i had to pay 75 dollars more to reinstate my license again. Is there anything i can do about this?
Veto – Call you state legislator’s office (your state representative). They often have staff members who help constituents cut through red tape with government agencies and this sounds like something they should help you with.
I was contacted about a month ago stating I would be turned over to collections due to an expired credit card. I e-mailed back asking how to fix it because they did not sent me any contact information to fix it. I heard nothing, I went into the actual facility to try to fix it, each time there was no manager to fix it and was told they would call me and never it. Each time I tried to contact them over the course of this month I e-mailed the original address that contacted me. I even got called by a billing agency that said they could tell me how much I owe ($75) but not take the payment. Today I tried going in AGAIN, and the company has now been bought out. The original company is no longer there. How do I stop this from going to collections and getting charged YET ANOTHER month of fees when I have been trying to fix this for the last month?
Erin – What type of business is this? Is it a gym membership? Who bought it out?
We just found out about garnishment from a collection agency. We had no prior notice of this debt, we don’t know what this debt is and were not informed of the court hearings. The office claims that there was a judgement in 08, 12 and now the garnishment. NOTHING on the credit report. They won’t tell us anything about the origination of the debt and the payroll dept. is no assistance.
Can a collection agency legally collect debt that is NOT past due i.e. demand a customer to accelerate pay for the rest of the year?
Help us understand more. Collection agencies do not generally get debts until they are already past due with the original creditor, so it’s hard to understand why they would have a debt that isn’t already past due.


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This is the third part in a series. For further reading, see "ACA v. FCC Close to a Slam Dunk for TCPA Defendants" and "TCPA Case Law Update (Vol. 2)."
The TCPA continues to generate significant case law nationwide. Since our last published update on June 5, 2018, there have been several significant decisions that all TCPA defense practitioners should be aware of. As always, we will continue to keep you apprised of developments going forward. The decisions are listed by issue category in alphabetical order.
ATDS: A federal circuit court vacated a summary judgment ruling in favor of the plaintiff and remanded the case for further consideration, based on the notion that the “capacity” language in the definition of an ATDS was best understood to refer to the functions a device was currently able to perform, rather than to functions that it would have the ability to perform after modifications. King v. Time Warner Cable Inc., 2018 U.S. App. LEXIS 17880, *1 (2nd Cir. June 29, 2018). Similarly, another circuit court affirmed an entry of summary judgment for the defendant because the plaintiff could not point to any evidence that created a genuine dispute of fact as to whether the system at issue had the present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers. Dominguez v. Yahoo, Inc., 2018 U.S. App. LEXIS 17436, *1 (3rd Cir. June 26, 2018).
Class certification: The court denied class certification in a TCPA fax case because it found that the class was not ascertainable. Career Counseling, Inc. v. Amsterdam Printing & Litho, Inc., 2018 U.S. Dist. LEXIS 110925, *18 (D.S.C. July 3, 2018). Similarly, the court reaffirmed its denial of class certification as to a subclass directed at the FCC’s so-called “Solicited Fax Rule” because it elected to follow the D.C. Circuit’s decision overturning that rule. Bais Yaakov of Spring Valley v. Educ. Testing Serv., 2018 U.S. Dist. LEXIS 96161, *16 (S.D.N.Y. June 6, 2018).
Personal jurisdiction: The court granted the defendant’s motion to dismiss a TCPA text message case for lack of personal jurisdiction because the plaintiff could not establish that the defendant (based in South Carolina) specifically targeted the state of Minnesota just because it sent text messages to phone numbers with Minnesota area codes. Frank v. Gold’s Gym of N. Augusta, 2018 U.S. Dist. LEXIS 108231, *7 (D. Minn. June 28, 20187).
Settlement approval: The court denied, without prejudice, final approval of a class action settlement that would have awarded plaintiffs’ counsel $390,000 in attorneys’ fees where the claims from the class had only totaled $27,430. Marengo v. Miami Research Assocs., LLC, 2018 U.S. Dist. LEXIS 95908, *10–11 (S.D. Fla. June 7, 2018).

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