of the United States of America, 35 U.S.C. § 1 et seq.
cassettes, magnetic resonance imaging (MRI) machines, and compact discs.
Data is pursuing remedies for infringement of its patents in venues throughout the world.
Asserting Patent No. EP1520409 (Landgericht Düsseldorf).
Gerard O’Regan, A BRIEF HISTORY OF COMPUTING at 99 (2012).
Anthony Pollard, GRAMOPHONE: THE FIRST 75 YEARS at 231 (1998).
later Blu-ray, which Philips launched with Sony in 1997 and 2006 respectively.
Advertisements for Philip’s Compact Disc Products (1982).
Internet-connected computers, and numerous other types of media streaming devices.
patents-in-suit disclose cutting-edge video compression and transmission technologies.
video chips for specialized video processors.”).
which include over 400 patents issued by patent offices around the world.
See, e.g., Japanese Patent Nos. JP4583924B2; JP5059855B2; JP5153336B2; JP4637585B2.
See, e.g., U.S. Patent Nos. 6,930,729; 7,911,537; 7,532,764; 8,605,790; and 8,095,887.
9,281,847; 9,319,448; 9,419,749; 9,843,844; 9,917,874; and 9,877,033.
See, e.g., U.S. Patent No. 8,787,454 and U.S. Patent Appl. No. 10/003,793.
See, e.g., U.S. Patent Nos. 7,554,559; 7,362,377; and 8,462,164.
See, e.g., U.S. Patent Nos. 8,325,273 and 9,377,987.
liability company organized under the laws of Delaware.
with the several hundred additional issued United States and international Patents.
groundbreaking technology, both here in the United States and throughout the world.
including a facility in Austin, Texas employing more than 5,000 employees.
See, e.g., U.S. Patent Nos. 7,218,354 and 8,174,615.
See, e.g., U.S. Patent Nos. 7,092,032 and 8,290,308.
See, e.g., U.S. Patent Nos. 8,164,687 and 8,432,495.
See, e.g., U.S. Patent Nos. 7,362,378 and 7,423,961.
Preston Road, Frisco, Texas 75034.
retail location in Plano and Frisco.
valued at several hundred thousand dollars.
under 28 U.S.C. §§ 1331 and 1338(a).
Venue is proper in this district under 28 U.S.C. §§ 1391(b)-(d) and 1400(b).
days. Dynamic Data is the owner by assignment of all right, title, and interest in the ‘073 patent.
A true and correct copy of the ‘073 patent is attached hereto as Exhibit 1.
successfully process the video data.
the frames, wherein the decoding unit recovers the motion vectors for the second frame.
regions of the first frame.
• Samsung Electronics Co., Ltd.
• SK Planet Co. Ltd.
The ‘257 patent claims specific methods and systems for processing a keyed image.
keyed image, and the scaled key-only image is merged with the scaled keyed image.
image information, without introducing visible artifacts.
information is extracted from the color-keyed image.
January 17, 2002. The ‘054 patent is subject to a 35 U.S.C. § 154(b) term extension of 1,162 days.
and correct copy of the ‘054 patent is attached hereto as Exhibit 3.
motion vector for a group of pixels of an image.
by adding a further candidate motion vector to the set of candidate motion vectors.
vectors being extracted from a set of previously estimated motion vectors.
for calculating match errors of respective candidate motion vectors.
motion vector, both belonging to the set of previously estimated motion vectors.
the second forward motion vector field being different.
vector and the first motion vector.
• Tencent Technology (Shenzhen) Co., Ltd.
‘918 patent is attached hereto as Exhibit 4.
generating an image on a display device.
generated on a display device.
comprises a portion of the overlay data.
overlay needs to be stored on-chip.
The ‘918 patent claims a technical solution to a problem unique to video processing.
copy of the ‘689 patent is attached hereto as Exhibit 5.
encoding/decoding at least one of the other simultaneously encoded/decoded images.
to a first memory, further comprising a second memory.
comprising providing a subset of image data stored in the second memory in the first memory.
sharing to at least one image.
cited the ‘689 patent and its underlying patent application as relevant prior art.
candidate vectors to determine block-based motion vectors.
determines at least a most frequently occurring block-based motion vector.
based motion vector to obtain a global motion vector.
patent is attached hereto as Exhibit 7.
The ‘112 patent discloses novel methods and systems for video compression.
macroblock is coded using reference pixels from at least one other video frame.
reference pixels being from a video frame.
stream of digital video/graphics data is pre-processed to output pre-processed data.
in the processing of a color key from the pre-processed data to output resulting data.
processing a color key from the pre-processed data to output resulting data.
patent family as relevant prior art.
the ‘529 patent is attached hereto as Exhibit 9.
vectors that are each assigned to individual image regions.
video and image signals during the motion estimation process.
assigned to individual image regions of an image.
through which the motion vector assigned to the first image block at least partially passes.
function of a motion vector assigned to at least the second image block.
motion vector to the first image block.
patent is attached hereto as Exhibit 10.
is dynamically configurable to effect various combinations of functions for each pipeline.
includes a pool of auxiliary function blocks that are provided as required to select pipelines.
provided for selective insertion of auxiliary functions between core functions of select pipelines.
multiplexer that allows it to be selectively coupled within each pipeline.
elements that are configured to sequentially process data as it traverses the pipeline.
configured to be selectively coupled to multiple pipelines of the plurality of pipelines.
auxiliary elements are responsive to external coupling-select signals.
traverses between the pair of core elements.
and its underlying patent application as relevant prior art.
Displaying Information, was filed on February 12, 2003, and claims priority to March 11, 2002.
of the ‘450 patent is attached hereto as Exhibit 11.
The ‘450 patent discloses novel methods and systems for displaying information.
need to make a new selection after being switched from one service to a second service.
to be displayed a second time.
elements of the stream of the second service.
having elementary streams of video and of data elements.
displayed on the device are received.
basis of the user selection is performed.
device, on the basis of the first data element selected by the filer is performed.
the second one of the services, on basis of the user selection is performed.
device, on basis of the second data-element selected by the filter is performed.
all cited the ‘450 patent and its underlying patent application as relevant prior art.
of this Complaint as if fully set forth herein.
encoded based on previous frames using prediction and motion estimation.
(collectively, the “Apple ‘073 Product(s)”).
Apple ‘073 Products in regular business operations.
on previous frames using prediction and motion estimation.
mapping of previous frames for subsequent frames.
required to successfully process the video data.
encoded first frame and an encoded second frame.
frame and corresponding regions of the first frame.
the motion vectors for the second frame.
the re-mapping strategy for corresponding regions of the first frame.
individuals throughout the United States.
individuals located in the Eastern District of Texas.
or more claims of the ‘073 patent, including at least claim 14 pursuant to 35 U.S.C. § 271(a).
actively inducing infringement under 35 USC § 271(b).
infringement, including by way of this lawsuit.
materials to actively induce the users of the accused products to infringe the ‘073 patent.
such use constitutes infringement of the ‘073 patent.
https://developer.apple.com/support/beta-software/install-beta/ (last visited Nov. 2018).
with respect to the ‘073 patent.
Apple together with interest and costs as fixed by the Court.
products and/or services for image processing.
Pro X (collectively, the “Apple ‘257 Product(s)”).
Apple ‘257 Products in regular business operations.
technology for scaling a keyed image.
technology for image processing, including but not limited to the Apple ‘257 Products.
corresponding to key regions in a keyed image.
form a scaled key-only image.
image and the scaled keyed image.
to 35 U.S.C. § 271(a).
the ‘257 patent and knew of its infringement, including by way of this lawsuit.
materials to actively induce the users of the accused products to infringe the ‘257 patent.
such use constitutes infringement of the ‘257 patent.
with respect to the ‘257 patent.
products and/or services for estimating a current motion vector for a group of pixels of an image.
(collectively, the “Apple ‘054 Product(s)”).
Apple ‘054 Products in regular business operations.
technology for estimating a current motion vector for a group of pixels of an image.
not limited to the Apple ‘054 Products.
calculating a difference between the second motion vector and the first motion vector.
infringing one or more claims of the ‘054 patent, including at least claim 1 pursuant to 35 U.S.C.
materials to actively induce the users of the accused products to infringe the ‘054 patent.
such use constitutes infringement of the ‘054 patent.
with respect to the ‘054 patent.
Apple ‘918 Products in regular business operations.
video processing technology, including but not limited to the Apple ‘918 Products.
overlay such as a cursor in an on-screen display in a consumer electronic device.
downloading on-screen display (OSD) data for generating an image on a display device.
on-screen display (OSD) data in segments separated by gaps.
an overlay on the image generated on a display device.
data downloaded during a gap that comprises a portion of the overlay data.
downloading occurring in segments separated by gaps.
the ‘918 patent and knew of its infringement, including by way of this lawsuit.
materials to actively induce the users of the accused products to infringe the ‘918 patent.
such use constitutes infringement of the ‘918 patent.
with respect to the ‘918 patent.
products and/or services for encoding and decoding video data.
TV (collectively, the “Apple ‘689 Product(s)”).
Apple ‘689 Products in regular business operations.
technology for encoding and decoding video data.
stored in the second memory in the first memory.
encoding/decoding is performed by access sharing to at least one image.
of the ‘689 patent, including at least claim 1 pursuant to 35 U.S.C. § 271(a).
materials to actively induce the users of the accused products to infringe the ‘689 patent.
such use constitutes infringement of the ‘689 patent.
with respect to the ‘689 patent.
products and/or services for motion estimation.
(collectively, the “Apple ‘177 Product(s)”).
Apple ‘177 Products in regular business operations.
technology for motion estimation and motion-compensated picture signal processing.
products and services for motion estimation and motion-compensated picture signal processing.
of candidate vectors to determine block-based motion vectors.
at least the most frequently occurring block-based motion vector to obtain a global motion vector.
the block-based motion vector estimation process.
the ‘177 patent and knew of its infringement, including by way of this lawsuit.
materials to actively induce the users of the accused products to infringe the ‘177 patent.
such use constitutes infringement of the ‘177 patent.
with respect to the ‘177 patent.
products and/or services for video compression.
(collectively, the “Apple ‘112 Product(s)”).
Apple ‘112 Products in regular business operations.
technology for video compression, including but not limited to the Apple ‘112 Products.
macroblock of pixels and the first group of reference pixels being from a video frame.
group of reference pixels being from at least one other video frame.
one or more claims of the ‘112 patent, including at least claim 11 pursuant to 35 U.S.C. § 271(a).
materials to actively induce the users of the accused products to infringe the ‘112 patent.
such use constitutes infringement of the ‘112 patent.
with respect to the ‘112 patent.
products and/or services for processing video and graphics data.
Pro X (collectively, the “Apple ‘688 Product(s)”).
Apple ‘688 Products in regular business operations.
technology for processing video and/or graphics data.
video or graphics data to output pre-processed data.
pre-processed data to output resulting data.
resulting from the processing a color key from the pre-processed data.
pursuant to 35 U.S.C. § 271(a).
the ‘688 patent and knew of its infringement, including by way of this lawsuit.
materials to actively induce the users of the accused products to infringe the ‘688 patent.
such use constitutes infringement of the ‘688 patent.
with respect to the ‘688 patent.
(collectively, the “Apple ‘529 Product(s)”).
Apple ‘529 Products in regular business operations.
technology for determining motion vectors that are each assigned to individual image regions.
including but not limited to the Apple ‘529 Products.
increase in the resolution of video and image signals during the motion estimation process.
modified motion vector is generated for at least a first image block.
to the first image block at least partially passes.
least the second image block.
method that assigns the modified motion vector as the motion vector to the first image block.
one or more claims of the ‘529 patent, including at least claim 1 pursuant to 35 U.S.C. § 271(a).
materials to actively induce the users of the accused products to infringe the ‘529 patent.
such use constitutes infringement of the ‘529 patent.
with respect to the ‘529 patent.
products and/or services for dynamically configuring a multi-pipe pipeline system.
Apple ‘041 Products in regular business operations.
technology for dynamically configuring a multi-pipe pipeline system.
selectively coupled within each pipeline.
elements to process the data as it traverses between the pair of core elements.
or more claims of the ‘041 patent, including at least claim 1 pursuant to 35 U.S.C. § 271(a).
materials to actively induce the users of the accused products to infringe the ‘041 patent.
such use constitutes infringement of the ‘041 patent.
with respect to the ‘041 patent.
products and/or services for displaying information.
Apple ‘450 Products in regular business operations.
technology for displaying information, including but not limited to the Apple ‘450 Products.
service to a second service.
define the type of information to be displayed a second time.
use to select the appropriate data elements of the stream of the second service.
content sources to share similar information models.
comprises services, with the services having elementary streams of video and of data elements.
selection of a type of information to be displayed on the device are received.
a first one of the services on the basis of the user selection is performed.
patent, including at least claim 8 pursuant to 35 U.S.C. § 271(a).
materials to actively induce the users of the accused products to infringe the ‘450 patent.
such use constitutes infringement of the ‘450 patent.
with respect to the ‘450 patent.
awarding to Dynamic Data enhanced damages.
LLC requests a trial by jury of any issues so triable by right.


text:
THIS case was brought up by writ of error from the Circuit Court of the United States for the western district of Virginia.
1. That the court withdrew from the jury all questions touching the proof of the patent and the particular boundaries thereof, though the defendants' cases consisted in showing the boundaries in the only copy of the patent produced to be erroneous, and the patent itself appeared to have issued irregularly, and without a precedent survey for the patentee.
Barclay et al. v. Howell's Lessee, 6 Peters, 498, 508, 511.
2. That the court withdrew from the jury the question, whether the fourth point of the defendant's patent, being in fact near and not on the river, was, under all the circumstances of the locality and survey, on or only near the river; or, in a word, whether the point 18, or the point G, or a point on the river at the end of a line from either 18 or G, perpendicular to the river, were the true fourth point, and whether the river or the right lines mentioned in the patent were the true boundary?
Barclay v. Howell, 6 Peters, 498, 508, 511.
3. Though it be conceded that, in many cases, a call for a point on a river, and then up or down the river to another point on the river, will in law be a call for a line with the river, yet this case is not within the principle; but, calling for a point near the river, it must be a question of fact where the point is, and how far from the river, as the law cannot determine the length of what parties meant by near. It must be for the jury to say, whether near means on the river, or is only a general description of the locality of the point, which is itself the real point contemplated by the patent.
Connelly v. Bowie, 6 Harris and Johnson, 141.
Rogers v. Moore, 7 H. and J., 141.
Hammond v. Ridgely, 5 H. and J., 245, 255.
Howard v. Ingersoll., 13 Howard, 414, 418.
First Point. The instruction asked for by the defendant assumes that the question of boundary at issue between the parties depends on the construction to be given to the calls of the senior patent, which, being a question of law, was properly referred to the court.
Second Point. The question of boundary was, whether, upon the evidence before the court, the boundaries set out in the senior patent were to be taken as the artificial lines there stated by course and distance, or the natural boundaries, the two rivers referred to in the patent.
It is contended, on the part of defendant, that by the calls of this patent, in construction of law, (as well interpreted by the deed last referred to,) the two rivers, Potomac and Shenandoah, are to be taken as the boundaries in question.
If this be so, it is conclusive of the case.
New York: Starr v. Child, 20 Wendell, 156; Trustees of the town of Kingston v. Louw, 12 Johnson, 252.
Massachusetts: Mayhew v. Norton, 17 Pickering, 357.
North Carolina: Hammond v. McGlaughan, Taylor's Rep., 136; Rogers v. Mabe, 4 Devereaux, 180; Hartsfield v. Westbrook, Haywood's Rep., p. 297.
Kentucky: Cockerell v. McQuin, 4 Monroe's Rep., 61; Bruce v. Taylor, 2 J. J. Marshall's Rep., 160.
Ohio: McCulloch v. Aton, 2 Ohio Supr. Court Rep., 308; Newsom v. Pryor, 7 Wheaton, 7 and 10.

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text:
C.K. Abdul Rehim and R. Narayana Pisharadi, JJ.
1. This appeal is filed challenging the judgment and decree passed by the Family Court, Attingal in O.P. No. 582/2013.
2. The appellant was the father of the first and the second respondents and the husband of the third respondent. He died during the pendency of the appeal. His legal representative, his second wife, has been impleaded as additional second appellant in the appeal.
3. The petitioners in O.P. No. 582/2013, who are the first and the second respondents in the appeal, shall be hereinafter referred to as ‘the daughters’. The respondents in O.P. No. 582/2013 shall be hereinafter referred to as ‘the father’ and ‘the mother’.
4. The minor daughters filed O.P. No. 582/2013 against their parents claiming Rs. 1,17,000/- towards arrears of past maintenance. They also claimed Rs. 4,500/- each per month from the parents towards future maintenance. The daughters also claimed Rs. 15,00,000/- each towards their marriage expenses.
5. At the time of filing of the original petition by the daughters, their parents had obtained a decree of divorce and they had remarried.
6. The father filed counter statement in the case raising mainly the following contentions. He had instituted O.P. No. 922/2005 against his wife, the mother of the petitioners, for granting a decree of divorce. She had filed M.C. No. 125/2006 against him claiming maintenance for herself and also for the minor daughters. She had also filed O.P. No. 1067/2005 against him for return of gold ornaments and money. Due to the intervention of mediators, the disputes between them were settled. As a part of the compromise entered into between the parties, he executed settlement deed No. 2466/2008 in favour of the daughters in respect of 12 cents of property with a building therein. Thereafter, he and the mother of the petitioners filed a joint petition for divorce as O.P. No. 1239/2008 and it was allowed by the court. The daughters and their mother had agreed that they will not claim any future maintenance from him. The marriage expenses of the daughters could be met by selling the property and the building gifted to them by him. He is working abroad as a driver and his monthly salary is only Rs. 40,000/-. He had taken a loan from the bank and he had to pay Rs. 23,000/- per month towards repayment of loan. As he has executed settlement deed in respect of the property in favour of the daughters, he is not liable to maintain them.
7. The mother of the minor daughters filed a statement supporting their claim against the father.
8. The original petition was filed by the daughters through their maternal grandmother as the next friend. During the pendency of the original petition, the daughters attained majority and the next friend was discharged.
9. During the trial of the case, PW 1 was examined and Exts. A1 to A3 documents were marked on the side of the daughters. CPW 1 was examined and Exts. B1 to B5 documents were marked on the side of the father. The mother got herself examined as CPW 2.
“a) The 1st respondent (father) is directed to pay Rs. 36,000/- (thirty six thousand) each as past maintenance to each of the petitioners with interest @ 6% per annum.
b) The 1st respondent (father) is also directed to pay future maintenance to the petitioners @ Rs. 2500/- (two thousand five hundred) each from the date they attained majority until the date of their marriage.
c) The 1st respondent (father) is directed to pay Rs. 5 lakhs (five) each towards the marriage expenses of each of the petitioners.
The appeal was filed by the father challenging the aforesaid decree passed against him.
11. We have heard learned counsel for the additional second appellant and also the first and the second respondents. We have also perused the records.
12. The father had instituted O.P. No. 622/2005 against his wife (the mother) for granting a decree of divorce. The mother had instituted O.P. No. 1067/2005 against the father for return of gold ornaments and money from him. She had also instituted proceedings as M.C. No. 125/2006 against the father claiming maintenance from him for herself and for the two minor daughters. All these cases were settled between the father and the mother and they executed an agreement of compromise and they filed a joint petition for divorce and it was allowed by the court.
“4. The respondent agreed to execute a settlement deed of his entire 12 cents of land and the double storied building situated therein in favour of minor children namely Aiswarya and Akhila for the well being of them and for their future life. The children shall own and enjoy the property as per conditions stated in the settlement deed.
5. The petitioner agreed that in the light of transfer of the above property and the building in favour of minor children the petitioner doesn’t want any relief in O.P.1067/05 and M.C.125/06. The petitioner also agreed that she doesn’t want any relief of past and future maintenance or any other claim and doesn’t want any more expenses for matrimonial and other incidental expenses of the children from the respondent.
In the aforesaid compromise the petitioner is the mother and the respondent therein is the father.
14. Ext. B2 is the copy of the judgment in O.P. No. 1067/2005. It shows that the aforesaid compromise was ordered to be appended to the decree in that case. In other words, the aforesaid compromise had become part of the decree in that case.
15. Learned counsel for the appellant contended that as per the terms of the compromise entered into between the parties, the mother had agreed that she will not claim any relief of past and future maintenance or any other claim from her husband (the father). Learned counsel would contend that she had also waived the right to get marriage expenses and other incidental expenses of the daughters from their father. Learned counsel would submit that in the light of the compromise entered into between the father and the mother and in the light of the fact that the father had executed Ext. B4 settlement deed in favour of the daughters gifting them 12 cents of property with a building therein, the daughters are estopped from claiming maintenance and marriage expenses from him.
16. As per the terms of the compromise entered into between the father and the mother, the father had executed Ext. B4 settlement deed in favour of the daughters in respect of 12 cents of property with a building therein. The compromise entered into between the father and the mother is mentioned in Ext. B4 settlement deed. It is also stated in Ext. B4 settlement deed that the purpose of executing the settlement deed was to meet the expenses of the future life of the daughters and their maintenance and educational expenses and also towards the share which they may get after his death.
17. The question now arises whether the execution of the settlement deed by the father in favour of the daughters gifting them 12 cents of property with a building therein in terms of the compromise entered into between him and the mother would preclude the daughters from claiming maintenance and marriage expenses from the father.
18. Section 20(1) of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as ‘the Act’) provides that a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. Section 20(2) of the Act provides that a legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor. Section 20(3) of the Act states that the obligation of a person to maintain his or her aged or infirm parent or daughter who is unmarried extends so long as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.
19. Section 20(1) of the Act enjoins upon a Hindu to maintain his or her legitimate or illegitimate children. Section 20(3) of the Act narrows down the legal obligation to maintain an unmarried daughter in so far as she is unable to maintain herself from her own earnings or property. A Hindu is under legal obligation to maintain his unmarried daughter, in so far as such unmarried daughter is unable to maintain herself from her own source of income. This obligation arises from the relationship between the parties. This obligation is personal and legal in character (See Commissioner of Gift Tax v. Indira Devi: MANU/KE/0546/1998 : 1998 (2) KLT 501, Viswambharan v. Dhanya : MANU/KE/0010/2005 : 2005 (1) KLT 708 and Ambika v. Aravindakshan : MANU/KE/1918/2017 : 2018 (1) KHC 32 : 2018 (1) KLT 125). The right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Act (See Jagdish Jugtawat v. Manju Lata: MANU/SC/1416/2002 : (2002) 5 SCC 422).
20. As per Section 3(b)(ii) of the Act, “maintenance” includes, in the case of an unmarried daughter, the reasonable expenses of and incident to her marriage. Even in case of daughters who are grown up and living with mother and maintained by mother who is employed and earning salary, they are entitled to get financial assistance from their father at the time of their marriage (See Smt. Sneh Prabha v. Ravinder Kumar: MANU/SC/0428/1995 : AIR 1995 SC 2170).
21. The obligation of a Hindu father to maintain an unmarried daughter, who is unable to maintain herself, is personal and legal in nature. Section 20 (3) of the Act recognises that right. Is it a right which would get forfeited by virtue of an agreement or compromise entered into between the mother and the father?
22. When an agreement is entered into by the wife and the husband, as a part of compromise filed in the court or otherwise, whereby the wife relinquishes or waives the right to claim maintenance in future from the husband, for herself or for the minor children, such an agreement is opposed to public policy and it does not preclude her from claiming maintenance under Section 125 of the Code of Criminal Procedure. This is the consistent view taken by various High Courts. It has been held that statutory right which has been conferred on a person under a public policy, cannot be waived by the said person by an agreement. It is also well settled that any contract which is opposed to public policy is void under Section 23 of the Indian Contract Act, 1872 and the same cannot be enforced in a court of law. If the object or consideration of an agreement would defeat the provisions of any law, and if it is against the public policy, the agreement will be treated as unlawful and void. This is a matter of public policy and not of an individual (See Ranjit Kaur v. Pavittar Singh : MANU/PH/0415/1991 : 1992 Cri.L.J 262, Hanamant Basappa Choudhari v. Laxmawwa: MANU/KA/0404/2002 : 2002 Cri.L.J 4397, Rajesh Kochar v. Reeta Kumari: MANU/BH/0158/2002 : 2002 Cri.L.J 3357, Sushil Kumar v. Neelam: MANU/PH/0323/2004 : 2004 Cri.L.J 3690, Mahesh Chandra Dwivedi v. Manorma : MANU/UP/1062/2008 : 2009 Cri.L.J 139 and Varshaben Himantlal Vejani v. State of Gujarat: MANU/GJ/1200/2016 : 2017 Cri.L.J 869).
23. As early as in 1961, this Court had held in Abubacker v. Katheesa : 1961 KLT 581, that an agreement between the father and the mother that on payment of a lump sum, the father need not pay any further maintenance, is not binding on the child because the obligation to maintain the child is statutory and the parties cannot contract themselves out of it.
24. In Seshi Ammal v. Thaiyu Ammal : MANU/TN/0210/1963 : AIR 1964 Mad 217, the question arose for consideration whether a Hindu wife, who had agreed to receive maintenance at a particular rate, binding herself not to claim a higher rate even if the circumstances were to change, could maintain a suit for increase of maintenance. The Madras High Court held that after all, the true principle is that a person liable to maintain must do so and it will be indeed inequitable for that obligation to be whittled down by technical rules like res judicata and binding nature of a contract.
25. In Damodaran v. Lakshmikutty Amma: 1979 KLT 543, the question arose whether a party can contract out of the statutory obligation to give maintenance arising under Sections 125 and 127 of the Code of Criminal Procedure. It was held that no party can be permitted to contract himself out of such a statutory obligation and if permitted, it would certainly be defeating a legal right statutorily conferred under Sections 125 and 127 of the Code of Criminal Procedure and that a contract taking away a statutory right is opposed to public policy.
26. In Sadasivan Pillai v. Vijayalakshmi : MANU/KE/0199/1986 : 1987 (1) KLT 381, it has been held that the relinquishment of the right to claim maintenance by the wife in a joint petition for divorce will not prevent her from claiming maintenance under Section 125 of the Code of Criminal Procedure.
27. In Haroon v. Sainabha : MANU/KE/0196/1992 : 1992 (1) KLT 868, a contention was raised that the wife and child cannot claim maintenance from the husband because in an earlier proceedings the matter was settled out of court and the wife had executed an agreement in favour of the husband whereby all the disputes regarding maintenance were permanently settled. This Court repelled the contention holding that there is statutory obligation of the husband to maintain his wife and minor son and he cannot be permitted to contract out of such an obligation and such agreement is opposed to public policy. It was held that a waiver in derogation of a statutory right cannot be recognised by the court as it affects public policy and as it is against the very statutory obligation imposed on a husband to maintain his wife and children who are unable to maintain themselves.
28. In Geeta Satish Gokarna v. Satish Shankarrao Gokarna : MANU/MH/0199/2004 : AIR 2004 Bom 345, it has been held that the term of a compromise to the effect that the wife would not a claim any maintenance or alimony in future from the husband is against public policy and it has to be treated as non-est.
29. In Nizumal Haq v. Phool Begum: MANU/MP/1061/2005 : 2006 (1) MPLJ 272, it has been held that statutory right of children to maintenance cannot be bartered, done away with or negatived by the father by setting up an agreement to the contrary. Such an agreement is against public policy. It has been held that the agreement whereby the statutory right of children to maintenance was relinquished may not per se be illegal but it cannot be given effect to being a negation of the statutory right and being opposed to public policy.
30. In Rajesh R. Nair v. Meera Babu : MANU/KE/0255/2013 : 2013 (1) KHC 812, the facts were similar to the facts of the present case. In that case, there were several litigations between the husband and the wife. While so, all the pending disputes between them were settled by an agreement executed by them on mediation. Accordingly, joint compromise petitions were filed before the Family Court and the cases were disposed of by the Family Court in terms of the compromise. The agreement between the parties provided that the wife shall forgo her right to claim maintenance against the husband on condition that the husband shall pay an amount in lump in full and final settlement of all her claims. She received that amount from the husband. The wife, thereafter, instituted proceedings against the husband under Section 125 of the Code of Criminal Procedure claiming monthly maintenance. The husband raised a contention that the claim is not maintainable in the light of the agreement entered into between the parties earlier as the parties had already settled all monetary and other disputes between them and the wife had waived her right to claim maintenance. This Court rejected the contention of the husband holding that the right to claim maintenance provided to the wife is a statutory right and the agreement by which the wife had given up her right to claim maintenance from the husband is opposed to public policy and void and hence, unenforceable.
31. In Bipin v. Meera : MANU/KE/1536/2016 : 2016 (5) KHC 367, in a joint application for divorce, the wife had undertaken that she would not claim money, ornaments or future maintenance. Subsequently, she filed application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 seeking various reliefs. The former husband resisted the claim on the basis of the consent decree earlier passed by the court. It was held that contracting out of the statutory rights conferred on the wife is against public policy and hence cannot be recognized, unless it was proved that there was a mutually satisfactory settlement of all claims.
32. In Bai Tahira v. Ali Hussain Fidaalli Chothia : MANU/SC/0402/1978 : AIR 1979 SC 362, the question arose whether a divorced wife would lose her right to claim maintenance for herself under Section 125 of the Code of Criminal Procedure, on making a declaration in the compromise resulting in a consent decree that she had no further claim against the husband. The wife had got right in immovable properties and she had also received Rs. 5,000/- as mehar from the husband. The trial court held that the former husband, was liable to pay maintenance to his former wife and the children inspite of receiving the customary dues and other rights in the properties. The Supreme Court upheld the order of the trial court.
33. In Nagendrappa Natikar v. Neelamma : MANU/SC/0248/2013 : AIR 2013 SC 1541, the question for consideration was whether a compromise entered into by husband and wife under Order XXIII, Rule 3 of the Code of Civil Procedure, agreeing for a consolidated amount towards permanent alimony, thereby giving up future claim for maintenance, accepted by the court in a proceeding under Section 125 of the Code of Criminal Procedure, would preclude the wife from claiming maintenance in a suit filed under Section 18 of the Hindu Adoptions and Maintenance Act, 1956. The Apex Court held that the suit under Section 18 of the Act is perfectly maintainable, inspite of the compromise reached between the parties under Order XXIII, Rule 3 of the Code of Civil Procedure and accepted by the court.
34. As per Section 23 of the Indian Contract Act, 1872, any consideration or object of an agreement is unlawful, if it defeats the provisions of any law, or the court regards it as opposed to public policy. It cannot be disputed that a contract which has a tendency to injure public interests or public welfare is one against public policy. Where a contractual provision is against a specific statutory provision or if it would result in frustration of a right conferred by law, then it can be regarded as opposed to public policy. It shall not become valid even if the parties thereto agree to it. A statutory right which has been conferred on a person under public policy cannot be waived by the said person by an agreement. When the obligation on the father to maintain an unmarried daughter is recognised by a statute, it is a matter of public policy and not of an individual. The father cannot divest himself of his liability to maintain his child by an agreement with the mother of the child. It would definitely be the public policy that children should not be left dependent on public assistance or on charity. They should therefore be able to come to the court for maintenance, notwithstanding any agreement to the contrary.
35. In the aforesaid factual and legal situation, the contention of the appellant that, the compromise decree passed by the court in the litigations between the father and the mother would preclude the daughters from claiming maintenance from the father, cannot be countenanced. The right of the daughters to get maintenance from the father was not forfeited by virtue of the agreement/compromise entered into between the mother and the father.
36. Now we come to the question regarding the quantum of maintenance and marriage expenses payable by the father to the daughters. The financial capacity of the father has to be taken into consideration in determining the amount which the daughters are entitled to get from him. His means and income would be relevant.
37. Admittedly, the father was employed as a driver abroad in a private company. According to the daughters, he had an income of Rs. 2,00,000/- per month. The plea of the father is that his monthly income was only Rs. 40,000/- and he had to repay a loan amount @ Rs. 23,000/- per month. The father did not enter the witness box. He also did not produce before the court any certificate from his employer showing his actual salary and allowances. Only his power of attorney holder, a relative of him, was examined as CPW 1. His evidence regarding the income and assets of the father cannot be relied upon. Ext. B5 is the statement of account of the father in one of the banks. It would show that he had maintained a minimum amount of Rs. 10,00,000/- in the bank account during the period from 02.09.2009 to 05.04.2013. In such circumstances, it cannot be found that he was financially a very poor person.
38. The lower court has granted past maintenance of Rs. 36,000/- each to the daughters for a period of three years. The amount of monthly maintenance awarded to each daughter would come to Rs. 3,000/- per month. It cannot be found that this amount is excessive or unreasonable having regard to the financial status of the father. We do not find any reason to interfere with the decree passed by the lower court in this regard.
39. The lower court has granted Rs. 2,500/- per month as future maintenance to each daughter. This amount is also not highly excessive or unreasonable. We also do not intend to interfere with the decree passed by the lower court in this regard.
40. Now, we come to the question of marriage expenses. The lower court has granted Rs. 5,00,000/- each to the daughters towards marriage expenses. Now a days, money in abundance, is needed for the marriage of a girl. Considerable amount would be required to meet the expenses of even the basic and bare minimum necessities in connection with the marriage of a girl. Therefore, it cannot be found that the amount of five lakhs rupees awarded by the lower court as marriage expenses to each of the daughters is excessive. But, the fact remains that the father is now not alive. Whatever amount awarded to the daughters has to be realized from the estate of the deceased father. We also take note of the fact that the father had gifted twelve cents of property with a building to the daughters. Considering all these aspects, we are inclined to reduce the amount of marriage expenses awarded by the lower court to Rs. 3,00,000/- each to the two daughters.
41. Consequently, the appeal is allowed in part. The judgment and decree of the lower court awarding Rs. 36,000/- each to the first and the second respondents (the daughters) towards past maintenance is confirmed. The judgment and decree of the lower court awarding Rs. 2,500/- per month to them towards future maintenance is also confirmed. They are entitled to get the amount awarded as future maintenance only till the date of death of the father, that is, on 18.12.2016. We modify the judgment and decree passed by the lower court awarding marriage expenses to the daughters and reduce the amount of marriage expenses to Rs. 3,00,000/- (Rupees three lakhs only) payable to each of the daughters. The petition schedule property shall be a charge for the aforesaid amounts awarded. The first and the second respondents (the daughters) are entitled to realise the decree debt from the estate of their deceased father. No costs in the appeal.
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n. 1a. Christian Church as a whole. Sa katapúsan mubarug nga madaúgun ang Iglisya, In the end, the Church will stand triumphant; 1b. local church or congregation. Mga pruyiktu sa átung iglisya, Our church’s projects; 2. a member of the Iglisya ni Kristu, a religious sect. — ni Kristu n. a religious sect or member thereof; v. become a member of the Iglesia ni Cristo. — Pilipína n. the Philippine Independent Church (Aglipayans), or a member thereof.
a. alert: being able to move rapidly, readily noticing things. Way musipyat sa igmat níyang mata, Nothing can escape his alert eyes. Igmat siyang milihay, He ducked cleverly; v. 1. be rapid in one’s motions, alert with the eyes; 2. be alert to what is happening. Igmáta ang inyung mga mata sa mapait nga katinuúran, Open your eyes to grim reality; 3. be outsmarted. Naigmatan ku sa múrus, I was defrauded by the Muslim peddler. paN- v. defraud. Ubang matansíru kusug mangigmat sa timbangan, Some butchers cheat on the weight; n. defrauding.
v. take good care of something to save it from damage or dirt. Dì siya mag-ignu sa íyang sinínà kay dì man siyay manglaba, He does not try to keep his clothes clean because he doesn’t do the washing. Ug dì nímu ignúhan ang ímung láwas, maamin ka giyud, If you don’t take care of yourself, you’ll end up in the grave.
n. egg noodles; v. cook egg noodles.
a. 1. ignorant, uneducated. Ignuranti siya. Way kabangkaágan, She is completely uneducated. She has no education; 2. ignorant of, unfamiliar with. Ignuranti ku sa mga dálan dinhi, I am unfamiliar with the streets here; v. 1. be ignorant; 2. put something over on one. Ignurantíhun man ku nímu nga nakabasa man ku niánà, Don’t fool me. I read that myself. paka- v. treat as, consider ignorant.

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Justia › US Law › Case Law › Federal Courts › Courts of Appeals › Sixth Circuit › 2017 › IBEW Local No. 58 Annuity Fund v. EveryWare Global, Inc.
Plaintiffs, who purchased EveryWare securities in 2013-2014, alleged a “pump and dump” scheme by EveryWare’s principal shareholders and officers to inflate the price of EveryWare shares and then sell their EveryWare shares before prices plummeted. They claim that EveryWare’s CEO released EveryWare’s financial projections for 2013, despite actually knowing those projections to be false and misleading and, months later, told investors, with the intent to deceive, manipulate, or defraud, that EveryWare was on track to meet its projections and that when EveryWare offered a portion of its shares to investors in September 2013, and submitted a registration statement and a prospectus in connection with that offering, EveryWare’s underwriters and directors signed documents, incorporating EveryWare’s financial projections and failing to disclose material downward trends in the business. The Sixth Circuit affirmed dismissal of plaintiffs’ claims under the Securities Exchange Act of 1934 and the Securities Act of 1933. The Exchange Act claims failed because plaintiffs did not allege particularized facts giving rise to a strong inference that defendants acted with the requisite scienter; the Securities Act claims failed because plaintiffs did not allege any well-pleaded material statement or omission in the registration statement or the prospectus.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0041p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT IBEW LOCAL NO. 58 ANNUITY FUND; ELECTRICAL WORKERS PENSION TRUST FUND OF IBEW LOCAL NO. 58, DETROIT, MICHIGAN; IBEW LOCAL NO. 58, Plaintiffs-Appellants, > v. EVERYWARE GLOBAL, INC., et al, Defendants, JOHN K. SHEPPARD; BERNARD F. PETERS; DANIEL COLLIN; STEPHEN W. PRESSER; MONOMOY CAPITAL PARTNERS, LLC; MONOMOY EXECUTIVE COINVESTMENT FUND, L.P.; MONOMOY CAPITAL PARTNERS II, L.P.; MCP SUPPLEMENTAL FUND II, L.P.; MONOMOY GENERAL PARTNER, L.P.; MONOMOY GENERAL PARTNER II, L.P.; MONOMOY ULTIMATE GP, LLC; OPPENHEIMER & CO. INC.; CJS SECURITIES, INC.; TELSEY ADVISORY GROUP, LLC; IMPERIAL CAPITAL, LLC; BTIG, LLC; THOMAS J. BALDWIN; MICHAEL JURBALA; BARRY L. KASOFF; RONALD D. MCCRAY; WILLIAM J. KRUEGER; JOSEPH A. DE PERIO; RON WAINSHAL; MONOMOY CAPITAL PARTNERS, L.P.; MCP SUPPLEMENTAL FUND, L.P., Defendants-Appellees. No. 16-3445 Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:14-cv-01838—Algenon L. Marbley, District Judge. Argued: February 1, 2017 Decided and Filed: February 21, 2017 Before: GIBBONS, ROGERS, and McKEAGUE, Circuit Judges. No. 16-3445 IBEW Local No. 58 Annuity Fund, et al. v. EveryWare Global, et al. Page 2 _________________ COUNSEL ARGUED: Thomas Livezey Laughlin, IV, SCOTT+SCOTT, New York, New York, for Appellants. David F. Graham, SIDLEY AUSTIN LLP, Chicago, Illinois, for Appellee Sheppard. C. Thomas Brown, ROPES & GRAY LLP, New York, New York, for Monomoy Appellees. ON BRIEF: Thomas Livezey Laughlin, IV, SCOTT+SCOTT, New York, New York, for Appellants. David F. Graham, Rachel B. Niewoehner, SIDLEY AUSTIN LLP, Chicago, Illinois, for Appellee Sheppard. C. Thomas Brown, John N. McClain, III, ROPES & GRAY LLP, New York, New York, Christopher G. Green, ROPES & GRAY LLP, Boston, Massachusetts, for Monomoy Appellees. Steven J. Rosenberg, STEVEN J. ROSENBERG, P.C., Chicago, Illinois, for Appellee Peters. Jay K. Musoff, Jacobus J. Schutte, LOEB & LOEB, LLP, New York, New York, for Appellee Jurbala. Roger P. Sugarman, KEGLER, BROWN, HILL + RITTER CO., L.P.A., Columbus, Ohio, Susan F. DiCicco, MORGAN, LEWIS & BOCKIUS LLP, New York, New York, for Underwriter Appellees. Michael E. Swartz, Christopher H. Giampapa, SCHULTE ROTH & ZABEL LLP, New York, New York, for Appellees Baldwin, Kasoff, McCray, Krueger, De Perio, and Wainshal. _________________ OPINION _________________ ROGERS, Circuit Judge. In this private securities litigation, investors in a now-bankrupt company called EveryWare sued EveryWare’s officers, directors, principal shareholders, and underwriters, alleging that some defendants violated the Securities Exchange Act of 1934 by materially misrepresenting EveryWare’s finances, and that some defendants violated the Securities Act of 1933 by verifying those alleged material misrepresentations to be true, and by failing to disclose other material facts, in a registration statement and a prospectus that they signed in connection with an offering of EveryWare’s shares. The district court dismissed plaintiffs’ complaint, reasoning that the Exchange Act claims fail because plaintiffs have not alleged particularized facts giving rise to a strong inference that defendants acted with the requisite scienter, and that the Securities Act claims fail because plaintiffs have not alleged any well-pleaded material statement or omission in the registration statement or the prospectus. On appeal, plaintiffs repeat the arguments that they made in the district court. Their arguments fail here for reasons set out by the district court in its thorough opinion. Because the district court’s No. 16-3445 IBEW Local No. 58 Annuity Fund, et al. v. EveryWare Global, et al. Page 3 opinion fully responds to plaintiffs’ arguments on appeal, we adopt the reasoning of the district court, as indicated below, with respect to those issues necessary to resolve this appeal. EveryWare Global, Inc., is an Ohio manufacturer of kitchenware. Plaintiffs purchased EveryWare securities between May 21, 2013, and May 16, 2014. Plaintiffs alleged a “pump and dump” scheme by EveryWare’s principal shareholders and officers to inflate the price of EveryWare shares and then to sell their EveryWare shares before prices plummeted. The district court opinion details the factual allegations in the complaint. In re EveryWare Global, Inc. Sec. Litig., 175 F. Supp. 3d 837, 843–48 (S.D. Ohio 2016). Plaintiffs mainly allege: (1) that CEO John Sheppard, in January 2013, released EveryWare’s financial projections for 2013, despite actually knowing those financial projections to be false and misleading; (2) that CEO Sheppard and CFO Bernard Peters, in August 2013, told investors, with the intent to deceive, manipulate, or defraud, that EveryWare was on track to meet its financial projections; and (3) that when EveryWare offered a portion of its shares to investors in September 2013, and submitted a registration statement and a prospectus in connection with that offering, EveryWare’s underwriters and directors signed those documents declaring them to be true, even though those documents incorporated EveryWare’s financial projections and failed to disclose material downward trends in the business. Plaintiffs failed to plead successfully that EveryWare’s financial projections in January 2013 violated § 10(b) of the Securities Exchange Act of 1934, or the related SEC Rule 10b-5, for the reasons that the district court fully explained: because those projections were forwardlooking statements, and because plaintiffs failed to plead facts that gave rise to a “strong inference” that CEO Sheppard had “actual knowledge” that those projections were false or misleading. We adopt that reasoning of the district court. 175 F. Supp. 3d at 851–54.1 Plaintiffs similarly failed to plead successfully that CEO Sheppard’s and CFO Peters’s on-track statements in August 2013 violated § 10b or Rule 10b-5, for the reason that the district court ultimately relied on: because plaintiffs failed to plead facts that gave rise to a “strong 1 We do not reach the two other reasons that some defendants argue on appeal to be independently sufficient alternative grounds on which to hold that the projections did not violate § 10(b): that the projections were not false or misleading; and that they were made by Sheppard, not by one of the principal shareholders. No. 16-3445 IBEW Local No. 58 Annuity Fund, et al. v. EveryWare Global, et al. Page 4 inference” that defendants acted with “a mental state embracing intent to deceive, manipulate or defraud.” We adopt that reasoning of the district court, also. 175 F. Supp. 3d at 856–61.2 Because plaintiffs have failed to meet the heightened pleading standards for defendants’ requisite scienter, they have failed to state a violation of § 10(b) or Rule 10b-5 upon which relief can be granted, as the district court properly concluded. Because plaintiffs failed to state substantive violations of the Securities Exchange Act, they have also failed to state secondary liability for those substantive violations under § 20(a) of the Securities Exchange Act, as the district court also properly concluded. 175 F. Supp. 3d at 861. Plaintiffs also challenge the district court’s dismissal of their claims under the Securities Act of 1933, repeating arguments rejected below that EveryWare’s directors and underwriters signed as true a registration statement and a prospectus that contained material misrepresentations. Plaintiffs have failed to state a violation of § 11 or § 12(a)(2) of the Securities Act because they have not pleaded plausibly that those documents contained material misrepresentations, as the district court correctly reasoned. 175 F. Supp. 3d at 869–73.3 Without a substantive claim of violation of the Securities Act upon which relief can be granted, there can be no claim of secondary liability under § 15 of the Securities Act, either, as the district court also correctly reasoned. 175 F. Supp. 3d at 873. The judgment of the district court is affirmed. 2 We need not, and accordingly do not, address the district court’s classification of those on-track statements as not forward-looking. See In re EveryWare Global, Inc. Sec. Litig., 175 F. Supp. 3d at 854–56. We also do not reach the arguments on appeal that some defendants advance as independently sufficient grounds on which to conclude that the on-track statements did not violate § 10(b): that the on-track statements, like the projections, were forward-looking statements that qualified for the PSLRA’s safe-harbor provision; that the on-track statements were not sufficiently pleaded to be false or misleading under § 10(b); and that, in any event, no questioned statement was made by one of the principal shareholders. 3 We need not, and accordingly do not, address the district court’s discussions of the statute of limitations and standing. 175 F. Supp. 3d at 861–69.


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Virginia Beach DUI Attorney – Chesapeake DUI Lawyer : § 18.2-268.7. Transmission of blood test samples; use as evidence. | Swango Law P.C.
Virginia Beach DUI Attorney – Chesapeake DUI Lawyer : § 18.2-268.7. Transmission of blood test samples; use as evidence.
A. Upon receipt of a blood sample forwarded to the Department for analysis pursuant to § 18.2-268.6, the Department shall have it examined for its alcohol or drug or both alcohol and drug content and the Director shall execute a certificate of analysis indicating the name of the accused; the date, time and by whom the blood sample was received and examined; a statement that the seal on the vial had not been broken or otherwise tampered with; a statement that the container and vial were provided or approved by the Department and that the vial was one to which the completed withdrawal certificate was attached; and a statement of the sample’s alcohol or drug or both alcohol and drug content. The Director shall remove the withdrawal certificate from the vial, attach it to the certificate of analysis and state in the certificate of analysis that it was so removed and attached. The certificate of analysis with the withdrawal certificate shall be returned to the clerk of the court in which the charge will be heard.
B. After completion of the analysis, the Department shall preserve the remainder of the blood until 90 days have lapsed from the date the blood was drawn. During this 90-day period, the accused may, by motion filed before the court in which the charge will be heard, with notice to the Department, request an order directing the Department to transmit the remainder of the blood sample to an independent laboratory retained by the accused for analysis. The Department shall destroy the remainder of the blood sample if no notice of a motion to transmit the remaining blood sample is received during the 90-day period.
TEST RESULTS PRESUMPTIVE. –Because the blood alcohol concentration reflected by the chemical test necessarily resulted from alcohol consumed prior to or during driving, the test results are presumptive evidence of the blood alcohol concentration at the time of driving and as such, the accused may challenge the test results by competent evidence, such as, for example, that he had not consumed enough alcohol in the relevant time to reach the level indicated by the chemical test results. Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989) (decided under former § 18.2-268).
COMMONWEALTH’S FAILURE TO PRODUCE TEST RESULTS. –When the accused requests the Commonwealth’s results, and the Commonwealth does not possess and/or cannot produce the results, the Commonwealth must explain the absence of test results. Wendel v. Commonwealth, 12 Va. App. 958, 407 S.E.2d 690 (1991) (decided under former § 18.2-268).