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Can a creditor go straight to state court and sue a debtor’s sole shareholder on an alter ego theory? Or does the alter ego claim belong exclusively to the debtor? Because these are ultimately questions of state law, the answer will vary depending on the state. Delaware law allows a subsidiary to maintain a veil piercing action against its corporate parent; consequently, several courts have held that such claims belong to the debtor’s estate if the subsidiary is in bankruptcy. As is now clear from a recent Ninth Circuit decision, however, where California law applies, it may be possible for creditors to pierce the corporate veil and sue a debtor’s shareholder directly, bypassing the bankruptcy court altogether.
In AHCOM, Ltd. v. Smeding, Case No. 09-16020 (9th Cir. Oct. 21, 2010), the Ninth Circuit was posed with the question “of whether a creditor of a corporation in bankruptcy has standing to assert a claim against the corporation’s sole shareholders on an alter ego theory, or whether that claim belongs solely to the corporation’s bankruptcy trustee.” The plaintiff in this case had entered into a contract to buy almonds from the debtor, a California corporation. When the debtor failed to deliver the almonds, the plaintiff brought an arbitration action in Germany (pursuant to an arbitration clause in their contract) and won. Shortly after the arbitration, the debtor commenced its bankruptcy case in the United States.
Rather than file a claim in the debtor’s bankruptcy, the plaintiff sued the debtor’s sole owners in state court, seeking to pierce the corporate veil. The defendants, having removed the suit to the Northern District of California, moved to dismiss the action. They argued that the plaintiff was “asserting a claim that harms not just [the plaintiff itself] but all creditors and thus [that the alter ego claim] is exclusively the property of the trustee.” The District Court agreed the defendants and dismissed the action.
While veil piercing is a cognizable theory in California, “[a] claim against a defendant, based on the alter ego theory, is not itself a claim for substantive relief, e.g., breach of contract or to set aside a fraudulent conveyance, but rather, procedural.” Thus, in California, an alter ego claim cannot be asserted alone as a “general alter ego claim,” but can be relied upon in order to bring substantive claims, such as breach of contract, against a corporation’s shareholder. Because the District Court’s decision to dismiss the action was premised on the existence of a general alter ego claim in California, the Ninth Circuit reversed and remanded the case to the District Court so that the plaintiffs could submit an amended complaint.
In Periera v. Cogan, the debtor’s trustee sought to pierce the corporate veil and hold the debtor’s shareholder liable for the debtor’s obligations under an alter ego theory. Periera denied the defendant’s motion to dismiss and held (citing Murray v. Miner) that the trustee had standing to pursue the alter ego claim, because under Delaware law (the applicable state law in that case) a subsidiary could bring causes of action for breach of fiduciary duties and of loyalty and fair dealing. Thus, it concluded, as did Murray v. Miner, that a Delaware court would permit a corporation to pierce its own veil, and therefore the trustee had standing to bring its cause of action.
Finally, a more recent case, In re Alper Holdings USA, denied plaintiffs’ cause of action seeking to pierce the corporate veil of the debtor, citing Murray v. Miner, Duke v. Enron, and Pereira v. Cogan for the same proposition, i.e., that Delaware law would permit a debtor corporation to assert an alter ego claim and pierce its own corporate veil. Interestingly, the plaintiffs in that case argued unsuccessfully that the law of Tennessee, rather than Delaware, should apply, noting that under Tennessee law, a debtor does not have the ability to pierce its own corporate veil. The court rejected that argument because the debtors were incorporated in Delaware, and under New York choice of law principles, the law of the state of incorporation controls the analysis of alter ego claims.
The moral of the story: double check to see where a debtor is incorporated before getting carried away with your alter ego theory.

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The NTSB recently dismissed an airman's untimely petition for reconsideration based upon the absence of extraordinary circumstances that would otherwise excuse the untimely filing. In Adminstrator v. Nadal, following an ALJ's order affirming a 60 day suspension of the airman's ATP certificate, the airman filed a "Notice of Intent to Submit Petition for Rehearing, Reargument, Reconsideration or Modification" requesting an additional, unspecified amount of time within which to file his petition for reconsideration. The airman stated that he needed extra time to complete his petition pending receipt of his file from his former attorney. He then later filed a document with the same title over a week after the 30 day deadline for filing a petition for reconsideration had passed.
Citing 49 CFR 821.11(b), the Board noted that "to obtain an extension of time to file a petition for reconsideration, a party must demonstrate 'extraordinary circumstances.'" It then stated that the airman did not demonstrate "extraordinary circumstances" because "[i]t is not enough, in our view, to infer, without further explanation, an inability to adhere to this deadline merely because a party is no longer represented by counsel". As a result, the Board held that the rules required dismissal of the airman's petition.
Interestingly, in spite of dismissing the airman's petition, the Board added an extra nail to the coffin by noting that "we have reviewed respondent’s original notice and late-filed petition and neither presents argument or evidence that would warrant modification of our decision in Board Order No. EA-5225 upholding a 60-day suspension of respondent’s airline transport pilot certificate". Although the Board's decision focuses on the timeliness issue and the lack of extraordinary circumstances, its footnote makes clear that even if the airman's petition had been filed on time, it would have been denied.
Although this is an unfortunate outcome for the airman, the decision should, once again, reinforce the necessity of filing appeals etc. within the time allowed by the rules of practice. Personally, I would rather argue the merits of an appeal than have to argue why an untimely filing should be excused or accepted by the Board. Arguments on the merits may not always be successful, as they would not have been in this case. But, as the cases show, arguments on the merits stand a better chance of prevailing than arguments seeking leniency for an untimely filing.
If you are an avid reader of aviation trade magazines, as I am, you have probably read the ads in several of the aviation magazines suggesting that aircraft buyers should “incorporate in Delaware” etc. But what does it mean to form a corporation, or limited liability company for that matter, to own an aircraft? Does this make sense? For a discussion of this topic and the answers to these questions, please read my latest article on the topic here.
When is a charter a "public charter" as opposed to a "private charter"? According to 49 CFR 1540.5, "Private charter means any aircraft operator flight (1) For which the charterer engages the total passenger capacity of the aircraft for the carriage of passengers; the passengers are invited by the charterer; the cost of the flight is borne entirely by the charterer and not directly or indirectly by any individual passenger; and the flight is not advertised to the public, in any way, to solicit passengers or (2) For which the total passenger capacity of the aircraft is used for the purpose of civilian or military air movement conducted under contract with the Government of the United States or the government of a foreign country." Public charter, on the other hand, "means any charter flight that is not a private charter."
Why does this matter? Well, one of the biggest reasons is the difference between the security procedures that are involved/required for a public charter versus a private charter. Depending upon the size of the aircraft, and if applicable, the security requirements for a public charter are more strict and, as a result, more expensive. Thus, the classification of a charter operation as public will significantly increase the overall cost of the charter to the charterer and its passengers. A charterer will need to make sure all of the criteria are met for private charter in order to avoid the default classification as a public charter.
According to Notice N8000.331, which is available for review here and should also soon be available on the FAA's website here, "airplanes equipped with retractable landing gear, flaps, and a full authority digital engine control (FADEC) meet the definition of being a complex airplane and may be used for commercial pilot and flight instructor certification." Up until now, the definition of a complex aircraft applied to aircraft with a controllable or "constant-speed propeller controlled by the pilot. FADEC controls the propeller and engine speed automatically through using a computer. N8000.331 updates the definition of complex aircraft and also updates commercial pilot and flight instructor practical test standards to incorporate this new definition.
Currently, the only aircraft acknowledged by the Notice as having the FADEC is the Diamond DA42 TwinStar. However, several of the aircraft manufacturers are working on developing aircraft with FADEC engines and several STC developers have already obtained approval for incorporation of FADEC engines in existing production aircraft. If you have any questions regarding the updated definition, you should contact Flight Standards AFS-810 at (202) 267-8212.
In a Notice published today, the FAA Chief Counsel stated that the FAA will now accept transfer statements that are executed under the Section 9-619 of the Uniform Commercial Code, as adopted by the various states, for filing with the FAA Aircraft Registry. The Notice is in response to a request for the FAA to address the situation in which a default on a secured transaction results in foreclosure of an aircraft owner/lessor's interest in the aircraft. The foreclosing party then wants the FAA aircraft records to reflect its interest in the aircraft lease so that the foreclosing party can transfer "lessor's rights" to a new aircraft owner/lessor.
Prior to the Notice, absent an assignment of lessor's rights in the leases, which the lessee was often unwilling to deliver, the foreclosing party has been unable to cause the FAA aircraft records to reflect its rights in the leases. The Notice now provides that, in appropriate circumstances, transfer statements may be recordable instruments that the FAA Registry will accept for recording. This will allow the foreclosing party to transfer "lessor's rights" to a new aircraft owner/lessor. However, it is important to note that the validity of a transfer statement will be determined under the applicable state law (e.g. State adoptions of Section 9-619 of the UCC).
If you would like further information regarding the recording of transfer statements, you may read the FAA's legal opinion contained in the Notice or contact Joseph R. Standell, Aeronautical Center Counsel, AMC-7, Federal Aviation Administration, P.O. Box 25082, Oklahoma City, OK 73125-4904, or call (405) 954-3296.
The IRS recently issued Revenue Ruling 2006-56 providing guidance regarding an employer's obligation to track the amount of per-diem expense reimbursements paid to their employees. Although this Revenue Ruling is not directly aviation related, it is applicable to flight crews, or any other employee engaged in business travel, and their employers.
Usually when an employer reimburses an employee for substantiated business expenses (meals and other incidentals associated with business travel) that amount is not subject to income or employment tax. An employee does not have to substantiate these expenses (e.g. provide receipts/documentation) as long as the reimbursement is equal to or less than the federal per diem rate.
Although Revenue Ruling 2006-56 is effective immediately, since employers may need some time to implement systems to accurately track and account for excess allowances, the results under Revenue Ruling 2006-56 will not be applied for taxable periods ending on or before Dec. 31, 2006 unless evidence of intentional noncompliance is found. If employees are receiving reimbursement rates in excess of the federal rate, they should start saving their receipts now.
The NTSB recently rejected an airman's argument that a revocation of his airman's certificate should be vacated because his appeal of the conviction upon which the revocation was based was pending and not yet decided. In Administrator v. Schlieve, the airman was convicted in Federal court of several drug-related felonies and sentenced to serve 160 months in prison.
The FAA then issued an emergency revocation order revoking the airman's certificate based upon his alleged violation of FAR 61.15(a)(2)(conviction for any state or federal drug statute is grounds for suspension or revocation). Although the airman appealed the FAA's order, Judge Mullins granted the FAA's motion for summary judgment and affirmed the FAA's order of revocation. The airman then appealed to the full NTSB arguing that the revocation should be vacated because the felony conviction was not final since his appeal of the conviction was still pending.
The Board rejected the airman's argument stating that "[t]he pendency of that proceeding does not justify a delay to ours." It also repeated its judgment in a prior case that "[T]he better result from a safety policy perspective is to reconsider the revocation action if, in fact, respondent’s conviction is overturned, not to postpone it based on a respondent’s expectation." The Board further noted that the revocation was not a lifetime revocation under 49 U.S.C. 44710, but rather a revocation justified under 49 U.S.C. 44709 "when safety in air commerce or air transportation, and the public interest, dictate."
The arguments raised by the airman are not novel and have been settled with the NTSB for quite some time. Also, even if the revocation was vacated, I am not sure what the airman would have accomplished. He certainly won't be flying for another 160 months, unless the appeal of his conviction is successful, in which case any order of revocation could certainly be vacated at that point in time(although I recognize that could take several months during which time the airman would be out of prison, but not authorized to fly).
Since the airman was appearing pro-se, perhaps his appeal was simply a diversion from his daily grind in the big house. Unfortunately, precedent was against him. Maybe he will have more success appealing his felony conviction.
The NTSB recently affirmed an ALJ's entry of summary judgment against an airman based upon allegations that were deemed admitted by the airman's failure to provide substantive responses to the FAA's requests for admissions regarding those allegations. In Administrator v. Zink, the airman was charged with violating FARs 91.7(a)(aircraft must be airworthy) and 91.407(a)(2)(altered aircraft's maintenance log must have required entry reflecting alteration) for allegedly operating an Aerospatiale SA315B Eurocopter with unapproved major alterations, and without the required maintenance entries in the helicopter's logbooks. The airman denied the allegations in the FAA's complaint and appealed to the NTSB.
Prior to the hearing, the FAA served the airman's counsel with requests for admissions of the key allegations in the FAA's complaint. The airman's counsel responded to each of the requests stating "Having made reasonable inquiry, respondent is without knowledge or readily obtainable information sufficient to enable him [the airman] to admit or deny." The airman's counsel subsequently withdrew and then the FAA sent a letter directly to the airman demanding proper responses and, when the airman did not respond, the ALJ then granted the FAA's motion to compel and ordered the airman to provide responses.
When the airman still refused to provide responses, the ALJ deemed the FAA's requests admitted. The ALJ then granted the FAA's motion for summary judgment based upon the admissions as to the key allegations in the FAA's complaint and suspended the airman's ATP certificate for 140 days. The airman appealed the entry of summary judgment arguing that he couldn't explain his counsel's ambiguous responses to the requests for admissions, but that the Board should refer to his responses in his answer, rather than his counsel’s responses.
On appeal the Board rejected the airman's agruments. It noted that the law judge has the discretion to impose sanctions for failing to comply with discovery requests and that "[o]rdering uncontested requests for admission to be considered true is not an inappropriate sanction." The Board also observed that the airman had three distinct opportunities to avoid the ALJ's discovery sanction order that deemed critical facts admitted: the airman could have denied any or all of the Requests for Admissions; he could have responded similarly to the FAA counsel’s letter demanding responses; or he could have responded to the FAA's motion to compel by disavowing his attorney’s earlier, inadequate response. Although the airman was temporarily without counsel, the Board stated "that such a situation does not obviate a respondent’s obligations with regard to discovery or responses in general in a pending enforcement action."
Requests for admissions are a discovery tool used often by the FAA. How an airman responds to those requests can have a critical impact upon his or her case. Whether proceeding with or without counsel, this case makes clear that an airman is obligated to comply with request for admissions and other discovery requests in a substantive way. Failure to do so can potentially result in sanctions ordered by the ALJ and, ultimately, a finding of violation against the airman.
Require that any cabin personnel on board 14 Code of Federal Regulations Part 135 flights who could be perceived by passengers as equivalent to a qualified flight attendant receive basic FAA-approved safety training in at least the following areas: preflight briefing and safety checks; emergency exit operation; and emergency equipment usage. This training should be documented and recorded by the Part 135 certificate holder. (A-06-69)"
The first two recommendations track with and overlap the FAA's current efforts in issuing Ops Spec A-008 and the guidance it provided to POIs following the accident to review existing arrangements involving Part 135 certificate holders. I don't think they tell us anything new nor do they recommend anything that wasn't already covered by the FARs. However, they reinforce the current enforcement environment in which the FAA will be exercising increased scrutiny of Part 135 certificate holders and the business arrangements in which they engage with aircraft lessors, charter brokers and other charter operators.
For a more detailed explanation of the NTSB's findings in the TEB accident and the operational control deficiencies it found, you should read the full Safety Recommendation.
The NTSB recently affirmed the revocation of an airman's certificates after an ALJ found that the airman had violated FARs 91.13(a)(careless and reckless) and 91.111(a)(operating an aircraft so close to another aircraft as to create a collision hazard). In Administrator v. Schaffer, the FAA issued an emergency revocation of the airman's certificates alleging that the airman had intentionally and deliberately operated a Piper Seminole in a manner that interfered with an Embraer ERJ-170-100LR turbo-jet aircraft performing multiple approaches to the Tamiami Airport (TMB).
At the hearing, the FAA presented testimony from the controller on duty, the manager of the TMB tower and the pilots in the Embraer. All of the testimony consistently alleged that the airman had maneuvered between the extended final approach courses of the two parallel runways at TMB in an apparent attempt to intentionally interfere with the Embraer jet. The Embraer pilots also testified that they had to take evasive actions in response to TCAS alerts triggered by the airman's operation of the Seminole. The TMB tower manager further testified that the airman "telephoned him several days prior to the incident, on May 25th, to complain about the negative community effect the Embraer jet flight tests would have on a TMB runway expansion proposal."
The airman did not testify at the hearing. Rather, he presented testimony from his radar and ATC expert who reviewed the radar data and concluded that it was the Embraer and not the Seminole that created the problems. The ALJ found that the FAA's experts were more credible than the airman's expert and affirmed the violations alleged by the FAA. The ALJ also affirmed the sanction of revocation finding that the airman's deliberate conduct demonstrated that he lacked the care and judgment required of a certificate holder. The airman then appealed the ALJ's decision arguing that the evidence did not support the decision and that the sanction was too extreme.
The Board rejected the airman's arguments and held that sufficient reliable and probative evidence supported the ALJ's determinations. Its decision also placed some emphasis on the fact that the airman did not testify or personally provide any explanation to counter the testimony of the FAA's witnesses. The Board also found it significant that the ATC transcript contains the controller's assertions to the airman that he had almost caused a midair each time he tried to block the Embraer, but the airman never argued with the characterization over the radio and never contacted the tower to dispute the charge after he landed. Finally, the Board affirmed the sanction of revocation based upon the obvious lack of qualification exhibited by the airman's conduct.
This is a strange case. Based upon the record discussed in the NTSB's opinion, you have to wonder what the airman was thinking when he acted as the ALJ found that he did. Why would you risk your airman certificates, not to mention a mid-air collision, simply because you believe a particular operation may jeopardize a runway expansion? As is often the case, I suspect that we don't receive the full story in the NTSB's opinion. However, it should be clear, if it isn't already, that the type of behavior discussed in the opinion will, and should, have serious consequences.
In a Notice published today, the FAA stated "that the minimum random drug and alcohol testing percentage rates for the period January 1, 2007, through December 31, 2007, will remain at 25 percent of safety-sensitive employees for random drug testing and 10 percent of safety-sensitive employees for random alcohol testing." Since the reported random drug test positive rate for 2005 was less than 1.00% (it was actually 0.58%) and the minimum random alcohol test rate for 2005 was less than 0.50% (it was actually 0.16%) the FAA may continue the current rates for calendar year 2007.
The case of Administrator v. Lakhram was recently issued and it reinforces the NTSB's position that an airman's claim of an in-flight emergency as a defense in an enforcement action must be supported by sufficient facts to persuade an administrative law judge that the emergency existed and excused the airman's conduct. In this case, the airman was operating a Part 121 passenger flight. When the flight departed Runway 28R from Pittsburgh International, instead of flying the Pittsburgh Six departure and flying the runway heading straight out, shortly after rotation the airman turned left away from that heading and passed over active runways and the PIT terminal at an altitude below 500 feet.
As you might imagine, the FAA was informed of the flight's deviation and it subsequently intiated a certificate action seeking to suspend the airman's certificate for 120 days alleging that the airman's conduct violated FAR's 91.123(a)(compliance with ATC clearance) and 91.13(a)(careless and reckless). The airman appealed arguing that his deviation was excused because it was the result of wake turbulence from a B-737 that took off in front of him. After a hearing, the administrative law judge affirmed the FAA's order of suspension, but reduced the suspension from 120 days down to 90 days. The airman then appealed to the full NTSB.
Initially, the Board noted that to in order to defend against an alleged violation of FAR 91.123(a) "a deviation from a clearance requires at least one of three things: an amended clearance; a TCAS alert; or a valid emergency. Respondent had no amended clearance and no TCAS alert." It then discussed the airman's claim that an emergency existed. The Board noted that an emergency does not need to be declared. However, FAR 121.557(c) requires that an airman in that situation needs to "keep the appropriate ATC facility and dispatch centers fully informed of the progress of the flight" and "shall send a written report of any deviation through the certificate holder’s operations manager, to the Administrator." Unfortunately, the airman did not inform ATC regarding the alleged emergency nor did he file the required report regarding his deviation.
Further, the airman was unable to rebut the testimony of three FAA inspectors who all testified regarding the airman's deviation. The co-pilot for the flight was unable to persuasively corroborate the alleged encounter with wake turbulence and although the airman presented expert testimony on the issue, the airman's expert did not observe the flight and did not have sufficient data to confirm or prove the nature or magnitude of the wake turbulence. As a result, the Board concluded that it had no difficulty finding that the hearing record contained a preponderance of reliable evidence to substantiate the ALJ's decision.
This is a tough case for the airman. Although it is quite likely that the flight encountered something that made the airman deviate from his clearance, unfortunately the airman did not take the steps required by the FARs after a deviation resulting from an emergency. Additionally, the airman did not provide as thorough and persuasive of an explanation for the deviation as he needed to persuade the ALJ. Fortunately for the airman the sanction was a suspension rather than a revocation.
In a recent NTSB opinion, the Board affirmed the FAA's revocation of an airman's ATP and First Class Medical certificates based upon a failed drug test. In Administrator v. Kalberg, the airman operated a flight on behalf of UPS to Anchorage, Alaska. Upon arrival, the airman was required to submit to a random drug test. The airman tested positive for having marijuana in his system. Subsequently, the FAA initiated an emergency revocation of the airman's certificates and the airman appealed.
At the hearing before the administrative law judge ("ALJ"), the airman argued that the most probable explanation for his positive test result was that he inadvertently ingested marijuana "by virtue of smoking several 'house' cigars he had recently purchased while on a family vacation in Aruba." However, the ALJ did not find this explanation credible and affirmed the emergency revocation. The airman then appealed the ALJ's decision to the full NTSB.
The airman argued to the full Board that his testing positive for marijuana "was not the result of knowing or intentional conduct". The Board initially rejected the airman's argument based upon the premise that it was required to defer to the ALJ's negative credibility determination regarding the airman's claim because the airman had provided no evidence to show that the ALJ's determination was arbitrary or capricious.
The Board went on to note that under the DOT drug testing requirements in 49 C.F.R. § 40.137, "the medical review officer (MRO) must verify a confirmed positive test result unless the employee presents a legitimate medical explanation for the presence of drugs found in his system" and that DOT drug testing requirements in 49 C.F.R. § 40.151 "specify that explanations by an employee of “inadvertent” or “passive” ingestion of drugs do not constitute a legitimate medical explanation that can be considered by an MRO as a basis to not verify a positive drug test result." As a result, even if the the airman's explanation of the reason for the positive drug test were to be believed, that explanation would not prevent verification of a positive drug test.
It should go without saying that this case is yet another example of the fate an airman tempts if he or she chooses to smoke or ingest marijuana. However, what may not be as apparent is the risk an airman takes by simply being around other people who may be smoking marijuana. Passive exposure to marijuana can result in testing positive and is equally hazardous to the airman. If an airman finds him or herself in this situation, an immediate departure is probably the best bet.


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Showing items in category Anguilla, sorted by newest listed first.
ANGUILLA - 1967 3c 'Independent Anguilla' adhesive used with INVERTED WATERMAK. SG 4w.
1967 3c 'Gateway' Independence Anguilla adhesive in fine used condition showing the variety WATERMARK INVERTED. Complete with RPS certificate. SG 4w.
ANGUILLA - 1965 25c 'Independent Anguilla' adhesive used with INVERTED WATERMAK. SG 11w.
1967 25c 'White Crowned Pigeon' Independence Anguilla adhesive in fine used condition showing the variety WATERMARK INVERTED. Complete with RPS certificate. SG 11w.
ANGUILLA - 1967 3c 'Independence Anguilla' overprint adhesive used. SG 4.
1967 3c 'Gateway Brimstone Hill Fort' Independence Anguilla overprint adhesive in fine used condition. SG 4.
ANGUILLA - 1967 6c 'Independence Anguilla' overprint adhesive used. SG 7.
1967 6c 'Crater, Mt Misery' Independence Anguilla overprint adhesive in fine used condition. SG 7.
ANGUILLA - 1932 underpaid cover to St.Lucia with 2d 'Postage Due' added with WIDE FOUNT variety.
ANGUILLA - 1967 $2.50 'Independence Anguilla' adhesive finely used on piece. H&G 15.
1967 $2.50 'Map Of Anguilla' adhesive overprinted 'Independent/Anguilla' in black tied to airmail piece by complete ANGUILLA/VALLEY cds dated OC.13.67. Very scarce stamp. SG 15.
ANGUILLA - 1967 2c 'Independence Anguilla' adhesive U/M. SG 3.
1967 2c 'Pall Mall Square' adhesive in unmounted mint condition. SG 3.
ANGUILLA - 1967 1c 'Independence Anguilla' adhesive U/M. SG 2.
1967 1c 'Loading Sugar Cane' adhesive in unmounted mint condition. SG 2.
ANGUILLA - 1969 philatelic use of St.Kitts 5c air letter uprated with 5c 'Independence' stamp.
1969 (FE.12.) philatelic use (no message/address) of St.Kitts 5c dark blue on blue air letter bearing 5c Anguilla adhesive overprinted INDEPENDENCE/JANUARY 1969 in black and cancelled ANGUILLA/VALLEY. These overprinted stamps saw little use.
ANGUILLA - 1967 5c blue unused air letter overprinted INDEPENDENT/ANGUILLA. H7G FG1.
1967 5c blue on light blue postal stationery aerogrammed sheet in fine unused condition overprinted INDEPENDENT/ANGUILLA in red with IMPERIAL/AIR MAIL watermark. A scarce item. H&G FG1.
ANGUILLA - 1967 15c pale green on blue unused air letter overprinted INDEPENDENT/ANGUILLA. H&G FG2.
1967 15c pale green on light blue postal stationery aerogramme sheet in fine unused condition overprinted INDEPENDENT/ANGUILLA in red with IMPERIAL/AIR MAIL watermark. Of the 100 originally printed only 5 examples are recorded known mint. Exceedingly rare and must be the scarcest of all QEII stationery. H&G FG2.
ANGUILLA - 1967 1c 'Loading Sugar Cane' U/M with strong OFF-SET on reverse. SG 2.
1967 1c 'Loading Sugar Cane' adhesive in unmounted mint condition with strong OFF-SET on reverse. SG 2.
ANGUILLA - 1967 1c 'Independent Anguilla' adhesive fine used. SG 2.
1967 1c 'Independent Anguilla' adhesive fine used. SG 2.
ANGUILLA - 1967 15c 'Independent Anguilla' adhesive fine used. SG 9.
1967 15c 'Independent Anguilla' adhesive fine used. SG 9.
ANGUILLA - 1967 1/2c 'Independent Anguilla' unmounted mint. SG 1.
1967 1/2c 'Independent Anguilla' adhesive in unmounted mint condition. SG 1.
ANGUILLA - 1967 3c 'Independent Anguilla' adhesive mint. SG 4.
1967 3c 'Independent Anguilla' adhesive in fine lightly mounted mint condition. SG 4.
ANGUILLA - 1967 1/2c 'Independent Anguilla' adhesive mint. SG 1.
1967 1/2c 'Independent Anguilla' adhesive in fine lightly mounted mint condition. SG 1.
ANGUILLA - 1940 + range of St.Kitts stamps used at ANGUILLA VALLEY. (5 items).
1940 + small range of St.Kitts stamps on album leaf all used at ANGUILLA VALLEY. Includes nice KGVI 3d (SG 73) with central strike and QEII 5c postal stationery air letter cut out uprated with 10c. (5 items).
ANGUILLA - 1903 2d ultramarine RPSE of Leeward Islands uprated and used in ANGUILLA.
1903 2d ultramarine on cream registered postal stationery envelope (size G) of St.Kitts (H&G 1) addressed to USA and bearing additional Leeward Islands 'key plate' 1d and 1 1/2d adhesives tied by light ANGUILLA cds's with ST.KITTS transit at left dated 9.JA.29.
ANGUILLA - 1930 first flight cover to Martinique from ANGUILLA VALLEY via St.Kitts.
1930 (FE.24.) first flight cover addressed to Martinique bearing St.Kitts 6d and 1/- adhesives each cancelled ANGUILLA/VALLEY cds's with ST.KITTS transit strike below 3 days later. ST.JOHNS/ANTIGUA and PORT OF SPAIN transit b/s's having been carried on the Nybra flight from Trinidad on the 8th. The cover was not delivered and was returned with black boxed RETOUR/A L'ENVOYEUR h/s applied. Very scarce use at Anguilla Valley.
ANGUILLA - 1969 FPO 1046 cover to UK.
1969 long airmail cover to UK bearing 'GB' 5d adhesive tied by blue FIELD POST OFFICE/1046 cds used by British troops in Anguilla during the unrest. Ex. operation 'Sheepskin' which landed UK troops in Anguilla in March of 1969.
ANGUILLA - 1971 cover to Montserrat used at the TRAVELLING BRANCH office.
1971 (DEC.6.) cover addressed to Montserrat bearing 6c adhesive tied by POST OFFICE ANGUILLA/ TRAVELLING BRANCH cds.
ANGUILLA - 1947 cover to USA used at ANGUILLA/VALLEY.
1947 (DE.8.) cover addressed to USA bearing Leeward Islands 'key plate' 1/4d-3d adhesives tied by ANGUILLA/VALLEY cds's with ST.KITTS transit cds applied two days later.
ANGUILLA - 1969 short set to 15c FDC of the INDEPENDENCE issue.
1969 (JAN.9.) official 'short set' ANGUILLA/INDEPENDENCE/JANUARY/1969 unaddressed first day cover bearing the Independence set to 15c tied ANGUILLA/FIRST DAY OF ISSUE.
ANGUILLA - 1947 'Victory' pair and 1/2d on cover to UK used at ANGUILLA VALLEY.
1947 (AP.25.) 'Wells' cover addressed to UK bearing St.Kitts 1/2d green tied with 'Victory' pair by ANGUILLA/VALLEY cds's.
ANGUILLA - 1969 'Independence' series to $5 unmounted mint.
1969 'Expiration Of Interim Agreement on Status' series of 15 values complete to the $5 each overprinted INDEPENDENCE/JANUARY 1969 in unmounted mint condition. These stamps were issued during the conflict of Independence and at that time the country was outside the British Commonwealth. Due to this fact these stamps were not listed by SG until very recently when the set to the 40c was listed (SG52a-52j). Why the top values didn't receive listing is unsure. An interesting period of Anguilla's postal history.
ANGUILLA - 1967/68 'Pictorial' set used. SG 17-31.
1967-68 'Pictorial' set of 15 values to the $5 in fine used examples. SG 17-31.
ANGUILLA - 2003 'Sailing Vessels' set of 12 fine used. SG 1131-42.
2003 'Past sailing Vessels' series of 12 of values 15c to $5 all fine used. SG 1131-42.
ANGUILLA - 1973 local 3c cover used with TRAVELLING BRANCH cds.
1973 (AUG.22.) cover addressed locally to Valley bearing 3c adhesive tied by POST OFFICE/ ANGUILLA/TRAVELLING BRANCH cds.
ANGUILLA - 1973 3c cover to USA used with TRAVELLING BRANCH cds.
1976 (MAY.22.) cover to USA bearing 6c 'Constitution' adhesive tied by POST OFFICE/ANGUILLA/ TRAVELLING BRANCH cds.
ANGUILLA - 1952 registered cover to UK used at ANGUILLA/VALLEY.
1952 (AU.26.) registered cover to UK (Wells) bearing St.Kitts 2d and 3d adhesives tied by ANGUILLA/VALLEY cds's with BASSETERRE transit cds the following day.
ANGUILLA - 1956 registered cover to Canada used at ANGUILLA/VALLEY.
1956 (AP.24.) registered cover addressed to Canada bearing 1/2c and 6c QEII 'key plate' blocks of four tied ANGUILLA/VALLEY and with perforated R/ANGUILLA/No. label at left. BASSETERRE/ST.KITTS transit.
ANGUILLA - 1970 25c rate cover to USA used at ANGUILLA/VALLEY.
1970 (FEB.4.) cover addressed to USA bearing 25c (SG 26) tied by ANGUILLA/VALLEY cds.
ANGUILLA - 1990 'Fish' definitive set of 16 fine used. SG 830a-45a.
1990 'fishes' definitive set of 16 all fine used arranged on album leaf. SG 830a-845a.
ANGUILLA - 1976 ANGUILLA/TRAVELLING BRANCH registered cover to USA.
1976 (OCT.20.) registered cover addressed to USA bearing 2c, 3c and 10c surcharge adhesives with additional 25c 'New Constitution' tied by POST OFFICE/ANGUILLA/TRAVELLING BRANCH cds's with scarce black rubber boxed R/ANGUILLA W.I./TRAVELLING BRANCH registered h/s at left.

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§ 210-1 No stopping, standing or parking.
§ 210-2 Snow and ice removal operations.
§ 210-3 Penalties for offenses.
§ 210-4.6 Stop and yield intersections; authority to place signs.
§ 210-6 Maximum speed on all roads; exception.
§ 210-12 Roads maintained by the state.
§ 210-15 Authority to regulate and control.
§ 210-17 Penalties for offenses.
§ 210-23 Confiscation and redemption of vehicles.
§ 210-24 Penalties for offenses.
§ 210-25 Maximum limits established.
§ 210-26 Maximum weight limit.
§ 210-27 Exempt highway-railroad grade crossings.
Maintenance of parking areas — See Ch. 154.
Streets and sidewalks — See Ch. 188.
Junked and abandoned vehicles — See Ch. 213.


text:
If you have family buried in the Old Johnsonville Cemetery or can take a gate photo that I can place on the website or can give driving directions to the cemetery or have obits (with newspapers permission or an obit that you can write) or tombstone photos or individual portraits or can write a short bio or have a history of the cemetery and would like to add your information to this website, contact the area coordinator for more information. You can also check out our How to Submit page.
* Adkisson Jo No Dates "Son"
* Barr Laura 28 Nov 1853 07 Sep 1893 Wife/A.D.
* 10 May 1890 11 Sep 1890 Infant Dau.
Hendrix Co. F. 8th MO Cav.
* Bergstresser Isabella 1858 1898 SS/William M.
* Bollinger William H. 26 Sep 1854 06 Jun 1906 Husband/E.K.
* Bollinger 1900 Wife/ H.H.
Bradley Franklin 12 Oct 1882 Son of G. W. & E.
Bradley G. W. 17 Sep 1882 70 Yrs 4 Mo.
Brown Bessie J. 10 Mar 1882 27 Apr 1904 Wife of S. E.
* Brumley Nannie R. 12 May 1864 25 Mar 1907 Wife/H.K.
* Byars Infant Daughter Dau of E. D. & S. V.
Byars Infant Son Infant Son of Ed & S. V.
* Byars Nancy 13 Jul 1812 26 Feb 1893 Mother, SS/W.L.
Byars Nellie M. Byars 16 Dec 1881 14 Jun 1892 Dau. of W. L. & J. A.
Caldwell Ransom D. 30 Oct 1895 05 Jul 1906 Son of W. M. & A. T.
* 18 oct 1896 Son of J. A. & F. E.
* Son of J. A. & E.. E.
* Colvin Harry V. 18 Nov 1894 23 Jun 1899 Son of W.H. & L. J.
* 09 Jan 1903 Wife of J. C.
* Wife of J. G.
Dake Baby Son 03 Feb 1901 Infant son of W. & V.
* 28 Apr 1908 Wife of G. M.
Davis Joshua 13 Mar 1844 20 Oct 1880 Born in Jefferson County GA.
Elder Charity 01 Feb 1861 04 May 1898 Wife of G. M.
* 12 May 1904 Wife of C. T.
* 07 Jun 1899 Aged 57 Yrs 3 Mo.
Gaylord Lydia M. 22 May 1850 26 Mar 1902 Wife of J. W.
Golvin Harry V. 13 Nov 1894 23 Jun 1899 Son of W. H. & L. J.
* Goodin Jossie 15 Nov 1871 16 Mar 1900 Wife/V.L.
Goodwin Josie 15 Nov 1871 19 Mar 1900 Wife of V. L.
* Bettie 1877 1969 Wife of James L.
Grider Gertie M. 1894 1990 Wife of Charles M.
Guinn Francis C. 05 Dec 1881 10 May 1902 Wife of J. C.
Guinn Jim C. 20 Nov 1876 17 Jan 1955 "Papa"
Guinn Theo 04 Sep 1901 22 Mar 1902 Son of J. C. & F. C.
Hall Rev. Aaron 25 Nov 1899 aged 75 Yrs 1 Mo. 25 Da.
* Hankins Infant Dau. 06 Dec 1904 11 Dec 1904 Dau. of J. T. & A. T.
* Hankins William 02 Aug 1888 14 Jul 1890 Son of J. T. & A. T.
* 05 Jun 1836 05 Jul 1899 Wife of M. C.
* 22 Nov 1878 30 Mar 1903 Wife of C. P.
* Wife of C. R.
Hornbeak Ida Grace 18 Jan 1900 12 Jan 1901 Dau. of J. M. & B. V.
* Dau. of J. M. & E. V.
Johnston Carrie 17 Jul 1897 02 Dec 1902 Dau. of J. E. & M. C.
* Clay Tiree 26 Aug 1905 30 Jul 1906 Son of J. E. & M. C.
* 6 Jan 1889 * Son of J. E. & M. C.
Johnston Elizabeth 08 Nov 1838 21 Jun 1894 Wife of T. B.
* Johnston I. W. 1822 31 Aug 1892 Bn Ala, died Johnstonville, I.T.
* Joliff Sarah L. 05 Aug 1865 16 Jan 1905 Wife/A.J.
Leslie Hillie 06 Jul 1880 22 Sep 1883 Dau. of T. A. & M. L.
* Leslie Mollie 06 Jul 1880 22 Sep 1888 Dau. of T. A. & M. E.
* Mantooth Bussie E. 20 Jul 1899 27 Oct 1900 Son of W.T. & S. A.
Mantooth Mary F. 22 May 1860 02 Mar 1899 Wife of W. T.
* Mantooth W. T. Jr. 13 May 1903 28 Nov 1905 Son of W.T. & S.A.
Marshall Fred 27 Sep 1894 19 Feb 1902 Son of W.J. & P.J.
* Marshall W. J. 1846 1928 Husband of Pauline J.
Nail Mary E. 28 May 1860 07 Feb 1903 Wife of E. T.
Newbern Allie 05 Sep 1873 22 Sep 1907 Wife of T. H.
* Runyan Nancy J. 24 Sep 1842 09 Jan 1900 Wife/G.W.
* Slagle Sidney Florence 19 Jul 1877 15 Mar 1897 Wife/M.C.
Smith Edna V. 10 Aug 1896 Dau of P. A. & Loicy E.
* Smith Haden "His last word was Mama"
Smith Infant Son * 08 Dec 1896 * 08 Dec 1896 Son of M. A. & A. M.
Smith James W. 23 Jan 1897 Son of P. A. & Loicy 15 Yrs 1 Mo.
* 19 Sep 1897 18 Sep 1898 Son of B. A. & M. M.
Smith Rebecca A. 31 Dec 1848 11 Dec 1919 Wife of Edward S.
* 01 Jan 1868 15 Mar 1884 Dau. of I. F. & E.
* Dau. of I. E. & E.
Thomas Charles W. 26 Jun 1904 06 Jan 1906 Son of J. E. & M. C.
Thomas Mary C. Hoggard 21 Jan 1859 19 Oct 1905 * SS/Charles W.
* Elvira Malissa Oct 1857 Feb 1910 Wife of W. R.
* 06 Jun 1903 * SS/J.D.

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These documents have been independently translated and can therefore not be used for legal purposes. In all legal matters, please always refer to the original German documents.
§1 Scope of application 1.1 These General Terms and Conditions (GTC) apply to the business relationship of gridscale GmbH (hereinafter referred to as "gridscale") with customers, in particular for services, for orders, information and advice in connection with the products. These GTC only apply if the purchaser is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
1.2 Unless otherwise agreed, the GTC in the version valid at the time of the customer's order, or at least in the version most recently notified to the customer in text form, shall also apply as a framework agreement for similar future contracts without gridscale having to refer to them again in each individual case.
1.3 These GTC apply instead of any general terms and conditions of business of the customer - such as e.g. purchasing conditions - even if according to these the acceptance of the order is provided as unconditional acceptance of the general terms and conditions. By placing an order, the customer expressly acknowledges that he waives his objection derived from his own general terms and conditions.
1.4 In addition to these GTC, Service Level Agreements (SLA) for individual products or individual product parts only apply if they are agreed separately. Individual agreements made with the customer in individual cases (including other ancillary agreements, supplements and adjustments), in particular conditions stated in the order, shall take precedence over these GTC in all cases. Subject to evidence to the contrary, an agreement in text form or our confirmation in text form shall be authoritative for the content of such agreements.
1.5 Legally relevant declarations and notifications to be made by the customer to gridscale after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be in text form to be effective.
1.6 References to the validity of legal regulations have only clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTC.
In other words, these GTC are the framework agreement that applies to our services towards you. We exclude all other contract texts as a whole, unless we have explicitly and individually agreed otherwise with you.
§2 Disclosure, specifications, service determination 2.1 Disclosures and advice as well as other services provided by gridscale are based exclusively on previous experience. The values given here are to be regarded as average values. All information on products and services, in particular the illustrations, contents and performance data and other information available in offers and on the gridscale website are to be regarded as approximate average values.
2.2 A reference to standards, similar technical regulations as well as technical data, descriptions and illustrations in offers, on the website in advertisements of gridscale only represent a statement of properties if the quality has been expressly declared as a "property"; otherwise it is a non-binding general description of services.
2.3 A guarantee shall only be considered accepted by gridscale if gridscale has designated a property or service as "guaranteed" in writing.
2.4 All services and products of gridscale are constantly updated and adapted to the state of the art. gridscale therefore reserves the right to make changes to services and products at its reasonable discretion (§ 315 BGB) even after the order or assignment.
2.5 Unless otherwise agreed in writing with the customer, gridscale shall not accept liability for the usability of gridscale's services and products for the purpose envisaged by the customer outside the legally binding liability.
2.6 gridscale reserves ownership rights and copyrights to illustrations, performance and other property descriptions as well as other documents concerning gridscale products and services. The customer agrees not to make the information and documents listed in the above sentence available to third parties unless gridscale has given its prior express written permission.
In other words, We would be happy to support you with your projects that you would like to implement with gridscale. We are looking forward to advise you and share our experiences with you. If we advise you, we would like to be your sparring partner at eye level. We brainstorm with you and consider how your project can be optimally implemented. However, we do not want you to take us into any liability for our free advice.
Guarantees are therefore only valid if we expressly confirm this guarantee to you.
We maintain a very agile product development and regularly publish new and updated functions for our customers. This can change the properties of a product or service. Usually this means that you can get higher performance and use advanced features. In rare cases, however, it may happen that we remove a property from our product or replace it with a similar one.
§3 Conclusion of contract, start of contract, scope of services 3.1 The offers of gridscale are subject to change and non-binding.
3.2 The order by the customer is considered a binding contractual offer. Unless otherwise stated in the order, gridscale is entitled to accept this contractual offer within 7 days from the date of receipt by gridscale.
3.3 Acceptance by gridscale can either be declared in writing (e.g. by order confirmation) or implied by the provision of the service or the product to the customer.
3.4 The customer will first be set up a test account (so-called "trial account"). The trial account can be converted into a full access (so-called "paid account") by entering a valid payment method (e.g. bank account, credit card) that can be selected in our online customer area. The customer guarantees gridscale the availability of the required fees on the specified means of payment at the time of the contractual offer. The customer is only entitled to order payable services and products from gridscale with full access.
3.4 gridscale provides the customer with flexible virtualized infrastructure (Infrastructure as a Service - IaaS) on servers, storage devices and networks over the Internet that cannot be used exclusively by the customer. These services are provided, managed and billed in real time.
3.5 The customer configures his individual IaaS solution via the website provided by us or alternatively via the provided programming interface (so-called API). When configuring the individual IaaS solution, the customer submits an offer within the meaning of Section 3.2 for the contractual service desired by him. Unless otherwise agreed, the performance data, conditions and prices stated on gridscale's website applicable at the time the contract is concluded shall apply. Further details can optionally be regulated in an SLA.
3.6 The concrete data and prices for the scope of services requested by the customer are stored at gridscale. The performance data can be called up at any time in the online customer area and adapted by the customer. Furthermore, the customer can contact gridscale's customer service via a contact form or by email to support@gridscale.io.
3.7 Unless otherwise agreed, gridscale shall provide the contractual services for the period specified by the customer ("on demand").
In other words, Our product is very versatile and can be individually adapted to your requirements. To convince yourself of our services, you start with a test account at gridscale. This access is completely free for you. In this access some of the functions are restricted to protect us from misuse. After you have convinced yourself that gridscale is the ideal partner, you can change your test access to a full-fledged account at any time. To do this, you simply deposit a payment method.
You can configure, start or stop the services you want to get from gridscale at any time via our user interface or our API interfaces. We provide you with the services in real time - i.e. OnDemand. Once you have configured and started an infrastructure, you will be charged according to the current price list. To give you a better overview, we always display the current prices in many places in the user interface and point out any fees that may arise.
§4 Duties and obligations of the customern 4.1 The customer assures that the data provided by him is correct and complete. He undertakes to reconfirm the correctness and completeness of the data to gridscale upon corresponding request from gridscale within 10 days of receipt.
4.2 The customer shall adequately support gridscale in the provision of services.
4.3 The customer must retrieve the messages received from gridscale in his e-mail inboxes, which he has stored with us as communication addresses, at regular intervals of no more than two weeks.
4.4 The customer undertakes to keep passwords received from gridscale for the purpose of access to its services strictly confidential, to inform gridscale immediately as soon as he becomes aware that unauthorised third parties are aware of the password and to change it immediately or have it changed by gridscale if he has reason to suspect that unauthorised third parties have gained knowledge of it. Should third parties use services of gridscale through misuse of passwords due to the fault of the customer, the customer is liable to gridscale for, among other things, the fees to be paid for the account as well as claims for damages resulting therefrom.
4.5 By way of an independent guarantee to gridscale, the customer is responsible for ensuring that the measures initiated by him in connection with the provision of services by gridscale, in particular with regard to the use and content of the infrastructure, do not violate legal prohibitions, morality and the rights of third parties (e.g. trademark, name, copyright, data protection rights).
4.6 If gridscale is held liable by third parties for any legal infringements which they assert due to the customer, in particular due to the customer's use and content of the infrastructure, the customer shall immediately release gridscale, offer gridscale the necessary support in legal defence and release gridscale from the costs of legal defense. The prerequisite for this is that gridscale informs the customer immediately about asserted claims, does not make any concessions or acknowledgements or similar declarations and enables the customer to conduct all judicial and extrajudicial negotiations on the claims at his own expense.
4.7. If claims are made against gridscale by third parties due to the customer, in particular due to the customer's use and content of the infrastructure and/or damages for violation of legal regulations, the customer shall immediately and unconditionally indemnify gridscale from damages (means of order, contractual penalties, costs of extrajudicial settlement of disputes etc.) due to violation of legal regulations, unless the customer proves that the violation is not based on his or his own conduct.
In other words, you assure us that all the information you provide about your company and yourself is correct and complete. We usually communicate with you via e-mail, so it is important that we always have an up-to-date e-mail address and that you regularly check your e-mails.
Passwords that we tell you so you can use gridscale should be kept strictly secret. You can invite other people to your personal gridscale account at any time and thus retain full control over who has which access and when. But never share your personal passwords with a third party.
If we are contacted by third parties for possible violations you may have committed, you undertake to assist us in the investigation and to avert damage to gridscale.
§5 Pricing and Payment 5.1 The fee owed by the customer is determined by gridscale's prices valid at the time the contract is concluded. The prices can be viewed on the gridscale website. In principle, use-dependent prices are calculated in the indicated unit (e.g. time) plus the statutory value-added tax.
5.2 Cashing up and billing takes place monthly in arrears, at the earliest on the first day of the month following the billing month.
5.3 gridscale is also entitled to invoice separately within one month if the current claim exceeds the usual invoice amount of the previous months by 50% or more and/or the threshold amount agreed with the customer or, if nothing has been agreed, an invoice amount of 500.00 €.
5.4 gridscale issues an electronic bill on the customer data provided by the customer in the online customer area. The bills are available in the customer area and can also be sent to the customer's e-mail address on request. Dispatch of the bill by post requires a supplementary agreement.
5.5 Payment of the fees can be made via the means of payment offered at the time (usually credit card and direct debit). The customer authorises gridscale to collect any fees incurred via the declared means of payment. He shall reimburse all costs incurred by non-executable payment transactions (so-called chargebacks), unless the customer has exercised the necessary care or the damage would have been incurred even if such care had been exercised.
5.6 All claims are due and payable upon presentation of the bill, unless gridscale states a payment deadline in the bill. If the customer does not pay within 5 days after receipt of the bill or within the payment period stated in the bill, he shall be in default without further reminder pursuant to § 286 para. 2 no. 1 or 2 BGB, with the consequence that default interest amounting to 9 percentage points above the base interest rate shall be owed pursuant to § 288 para. 2 BGB.
In other words, the billing amount you have to pay to gridscale is individually composed of all items you have used within a billing period (e.g. one month). Our bill is usually issued after one month for the previous period. We always make the bill available to you in your personal area at gridscale digital. Upon request, we will also send this bill to an e-mail address you have provided.
There are a few cases where we reserve the right to send you a bill before the end of a month. For example, if we are unsure whether you will pay our bills or if your growth at gridscale is unusually high.
If you receive a bill from us, we usually arrange for immediate charges to be made to your means of payment (e.g. your credit card). Please note that we can debit the bill from your payment method, otherwise our system could temporarily block your account.
If we first collect a bill from your means of payment but then make a chargeback, we will incur costs. We allow ourselves to pass these costs on to you in such a case.
$6 Contract terms, termination 6.1 A contractual relationship between the parties is generally deemed to have been concluded for an indefinite period.
6.2 There is basically no minimum contract term for the customer. The customer may terminate the contractual relationship as a whole or individually ordered contractual components at any time without notice with effect from the next working day.
6.3gridscale can properly terminate the contractual relationship as a whole or individually ordered contractual components subject to a period of notice of 4 weeks to the end of the month. If a longer period of notice is required by law for a service provided by gridscale, this longer period of notice shall apply in favour of the customer.
6.4 The right of both parties to terminate without notice for good cause remains unaffected.
6.5 An important reason for termination exists for gridscale in particular if the customer defaults on payment of the owed fees or a not insignificant part thereof (at least 50%) for a further 30 days despite reminder of payment. Furthermore, an important reason exists if an application for the opening of insolvency proceedings has been filed against the customer's assets or such an application has been rejected for lack of assets, enforcement proceedings against the customer have remained unsuccessful, or enforcement measures have been taken and have not been withdrawn within one month.
6.6 Any notice of termination must be in written form in order to be effective.
6.7 The validity of § 545 BGB is excluded.
6.8 If the content of individual provisions extends beyond the term of the contract (e.g. indemnifications, limitations of liability, copyrights, data protection), then these provisions shall also remain effective beyond the term of the contract.
6.9 Upon termination of the contract - for whatever legal reason - any rights of use or licenses granted by gridscale or third parties within the scope of the provision of services shall lapse.
6.10 Notwithstanding any existing right of termination, gridscale is entitled to withhold the performance of contractual performance obligations or several contracts linked in terms of time and content in whole or in part if the customer is in default of payment of the fees owed or a not insignificant part thereof (at least 50%) despite reminder of payment for a further 10 days and/or if there are concrete indications of a deterioration in the customer's financial circumstances. In this case, gridscale can demand payment or partial payment concurrently against performance, even if an advance performance obligation has been or is contractually agreed upon. This shall not affect any further claims for damages.
In other words, we're going to get married indefinitely. However, you don't tie yourself to gridscale all your life. Rather, you can cancel your contract with us at any time the next day.
So that you have a certainty that we will not terminate the marriage with you one day in advance, we have the right of termination with four weeks to the end of the month, unless there are other deadlines provided for by law. An important exception to this rule is if you do not pay your bills from gridscale. Then we can make use of an immediate special right of termination or temporarily stop the services towards you.
§7 Rights of third parties 7.1 If a third party asserts claims against the customer due to the infringement of an industrial property right or copyright through the use of the services owed by gridscale in the Federal Republic of Germany and if their use is affected or prohibited by this, the following provisions shall apply.
7.2 gridscale shall, at its discretion and expense, either modify or replace the agreed services in such a way that the property right is not infringed, but substantially corresponds to the agreed service in a manner that is reasonable for the customer or exempt the customer from license fees towards the property right owner or third parties.
7.3 Prerequisites for gridscale's liability according to section 7.2 are that the customer immediately notifies gridscale of the assertion of claims of third parties, does not acknowledge the alleged infringement of property rights and leaves any dispute including any out-of-court settlements to gridscale or only conducts such dispute in agreement with gridscale. If the customer ceases use for damage mitigation or other important reasons, he is obliged to point out to the third party that the cessation of use is not connected with an acknowledgement of the alleged infringement of property rights.
7.4 If the customer is responsible for the infringement of property rights, the claim of third parties is based on the fact that the service content owed by gridscale was changed without their knowledge, processed in another way and not used with services provided by gridscale, claims against gridscale of the customer in accordance with this item 7. are excluded.
7.5 To the extent applicable, legally binding liability regulations or the regulations in section 8. remain unaffected by this.
In other words, we don't actually need this paragraph and it's for your protection. However, if at any time a third party should take you into liability because you use gridscale itself or a technology provided by gridscale, then we will fight this dispute for you. In such a case, please inform us immediately so that we can jump to your side.
§8 Liability 8.1 gridscale is not liable to the customer for damages or reimbursement of expenses, for whatever legal reason.
in the case of liability in accordance with the Product Liability Act or other legally binding liability circumstances.
8.3 In the event that gridscale, its legal representatives or its vicarious agents are only guilty of slight negligence and there is no case of the preceding Clause 8.2, third, fourth, fifth and sixth indent, gridscale shall only be liable for contract-typical and foreseeable damage, even in the event of a breach of essential contractual obligations.
8.4 Insofar as gridscale is liable in accordance with this Clause 8, its liability is limited to a maximum liability amount of EUR 100,000.00 for each individual case of damage. gridscale shall not be liable in the event of malice, intent or gross negligence, for claims due to injury to life, limb or health, or in the event of a claim based on an act of tort or an express, additional guarantee or the assumption of a procurement risk by gridscale or in the event of legally mandatory, deviating, higher liability amounts. Any further liability of gridscale is excluded.
8.5 Liability of gridscale for indirect damages (in particular in the form of lost profit) is excluded. The above Clause 8.4, sentence 2, applies accordingly.
8.6 Notwithstanding the cases mentioned in 8.1 to 8.5, gridscale is only liable for the loss of data or programs up to the amount of damage that would have occurred even with regular data backups. The above limitation of liability therefore applies in particular when the damage is based on the fact that the customer has failed to carry out regular data backups himself, which may not be stored in the gridscale data centre itself, and thereby ensure that lost data can be restored with justifiable effort. This does not apply if gridscale has taken over the data backup for the customer by contract.
8.7 gridscale uses TSL/ SSL encryption for certain security-relevant data transmissions and connections. Despite this, data communication via the Internet cannot be guaranteed to be error-free and/or available at any time according to the current state of the art. Liability for permanent and uninterrupted availability is therefore excluded, notwithstanding the cases mentioned in 8.1 to 8.5, unless a separate contractual agreement exists with the customer.
8.8 The above provisions do not imply a reversal of the burden of proof.
In other words, we will not be liable to you for damages unless the law clearly provides otherwise. Regardless of this, we agree to limit the amount of any liability for anything.
Please note that we are especially not liable for the loss of your data at gridscale if you fail to perform a suitable data backup yourself. We offer you numerous tools and functions that can protect (even fully automated) your data from unusual dangers. Use these functions!
§9 Confidentiality, data protection 9.1 The customer and gridscale mutually undertake to treat all confidential information and trade secrets of the respective other contractual partner, which the other contractual partner makes accessible on the basis of the initiation and fulfilment of the contract, as confidential for an unlimited period of time and to use them only within the scope of the agreed purpose and to observe the applicable provisions of data protection and data security.
9.2 All personal data provided (such as salutation, name, address, date of birth, e-mail address, telephone number, fax number, bank details) are collected, processed or used exclusively in accordance with the applicable data protection conditions.
9.3 As far as personal data are necessary for the establishment, content arrangement or change of the contractual relationship (inventory data), these are used exclusively for the completion of the concluded contracts. Any other contractually required use of inventory data for advertising or market research purposes requires the express consent of the customer. It is possible to give your consent before declaring registration or claiming benefits. The declaration of consent is voluntary and can be revoked at any time.
9.4 Personal data, which are necessary to enable the use of the offers and billing (traffic/usage data), are used to process the concluded contracts. Such traffic data are in particular the characteristics for identifying the customer as a user, information on the beginning and end as well as the extent of the respective use of the service.
9.5 Furthermore, subscriber-related traffic data can be used for the purposes of advertising, market research, for the demand-oriented design of gridscale's services and for the creation of user profiles using pseudonyms, provided that the customer has consented to this use. The customer is entitled to object to this use of the data at any time.
9.6 gridscale expressly points out to the customer that data protection for data transfers in open networks, such as the Internet, cannot be fully guaranteed according to the current state of the art.
9.7 The customer is aware that the provision of services may involve order data processing in accordance with §§ 11, 9 BDSG. In this case, the customer is responsible for compliance with the provisions of the BDSG and other data protection regulations and is considered a "responsible party" within the meaning of § 3 paragraph 7 BDSG. gridscale also declares that the technical and organisational measures in accordance with § 9 in connection with the Annex to § 9 BDSG are complied with in principle.
9.8 If the customer collects, processes or uses personal data, he shall be liable to gridscale by way of an independent guarantee that this is done in accordance with the data protection regulations and shall indemnify gridscale in full in the event of a violation of third-party claims. Sections 4.6 and 4.7 apply accordingly.
9.9 gridscale will forward complaints as well as claims for information, correction, deletion and blocking to the customer (in particular § 6 BDSG). 42a BDSG applies accordingly to the customer and leads to an obligation to notify gridscale.
In other words, we trust each other and protect all the secrets we learn from each other from the curious eyes of others. Data that we collect from you and your company in order to provide our services will be used exclusively for this purpose and will never be passed on to third parties.
If you use our services yourself to process or store personal data, we can conclude a so-called agreement on order data processing. This ensures that you behave in accordance with the law and fulfil your control obligations.
§10 Statute of Limitation, Place of Performance, Other 10.1 The limitation period for all contractual and legal claims against gridscale is one year.
10.2 The shortening of the limitation period pursuant to Section 10.1 shall not apply if a longer limitation period is prescribed by law. In this case the longer limitation period applies.
10.3 In accordance with the statutory provisions, claims based on intentional or grossly negligent acts of gridscale, a legal representative or vicarious agent of gridscale as well as claims for damages resulting from injury to life, body or health based on intentional or negligent breach of duty by gridscale, a legal representative or vicarious agent shall become statute-barred.
10.4 gridscale can transfer its rights and/or obligations from the contractual relationship to one or more third parties (e.g. assumption of contract and/or debt, assignment). In this case and the simultaneous impairment of his interests, the customer has the right to terminate the contract extraordinarily.
10.5 Waiver declarations by gridscale (such as for the assertion of contractual penalties) must be in writing. If gridscale does not insist on full and/or partial compliance or fulfilment of one of the conditions or provisions of these GTC and the supplementary provisions, this is not to be understood as an acknowledgement of the act of infringement or a waiver of a future application of the relevant condition, provision, option, law or legal remedy.
10.6 The customer may only offset claims for remuneration of gridscale against claims which have become res judicata or are recognised by gridscale.
10.7 The assignment or pledging of claims or rights to which the customer is entitled towards gridscale is excluded without the consent of gridscale.
10.8 The transfer of use (in whole or in part) to third parties is only permitted with the prior consent of gridscale.
10.9 The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the provisions of the EGBGB concerning private international law. The contractual languages are German and English.
10.10 The place of performance and place of jurisdiction for all disputes arising from or in connection with this contract is gridscale's registered office. gridscale is also entitled to sue the customer at its general place of jurisdiction. Any exclusive place of jurisdiction shall remain unaffected.
10.11 gridscale and the customer are entitled, in the event of a dispute arising from the contractual relationship, to carry out a conciliation in accordance with the conciliation rules of the competent IHK arbitration body for IT disputes in the version valid at the time a conciliation procedure is initiated (if there is no such version on the basis of the conciliation rules of the Hamburg arbitration body for IT disputes) before carrying out legal proceedings. The purpose of the conciliation procedure is to settle the dispute in whole or in part, provisionally or definitively.
In other words, we agree on a limitation period of one year, unless the law explicitly stipulates otherwise.
We live in Cologne. Therefore we agree on Cologne as place of jurisdiction, should there ever be a dispute between us. So that we both don't put an endless amount of money into costly legal proceedings, we can both insist on calling in a mediator to try to settle amicably before a court is called.
§11 Subject to change without notice 11.1 We are entitled to change these GTC and the other contractual conditions with a period of 6 weeks in advance. We will notify the customer of the respective change by e-mail or in any other text form. At the same time, the customer is expressly informed that the respective amendment will become the subject matter of the existing contract between the contracting parties if the customer does not object to this amendment in text form within a period of 4 weeks from notification of the amendment. If the customer objects, each party has the right to terminate the contract with the period applicable to the ordinary termination.
11.2 Insofar as the amendment pursuant to Section 11.1 above relates to the promised services of the contractual relationship, a change to the GTC is permissible if the agreement of the change is reasonable for the customer taking into account the interests of gridscale. The same applies if gridscale reserves the right to unilaterally change a service at any time in these GTC.
11.3 By continuing to use a service or product after it has been announced and changed without notice from the customer, the customer declares his agreement with the contractual conditions and general terms and conditions valid at that time, currently available at https://gridscale.io/en/agb/.
In other words, we can change these terms and conditions. We will then notify you of this change in good time so that you can inform yourself about the changed content. If you continue to use gridscale after changing the terms and conditions, you automatically accept the new terms and conditions.
§12 Final clauses 12.1 Should a provision of this contract be or become wholly or partly ineffective/non-executable or unfeasible for reasons of the law of the General Terms and Conditions according to §§ 305 to 310 BGB, the statutory provisions shall apply.
12.2 Should a current or future provision of the contract be or become wholly or partially invalid/non-executable for reasons other than the provisions concerning the law of the General Terms and Conditions in accordance with §§ 305 to 310 BGB, this shall not affect the validity of the remaining provisions of this contract, unless the execution of the contract - also taking into account the following provisions - would constitute an unreasonable hardship for one party. The same applies if there is a gap that needs to be filled in after conclusion of the contract.
12.3 Contrary to the case law of the Federal Court of Justice, according to which a Salvatorian Preservation Clause is only intended to reverse the burden of proof in the absence of express declarations to the contrary by the parties, the validity of the remaining contractual provisions is to be maintained under all circumstances and thus § 139 BGB is to be waived in its entirety.
12.4 The parties shall replace the invalid (void) or unenforceable provision or any gap that needs to be filled for reasons other than the provisions concerning the law of the General Terms and Conditions according to §§ 305 to 310 BGB with an effective provision that corresponds in its legal and economic content to the invalid (void) or unenforceable provision and to the overall purpose of the contract. 139 BGB (Partial Invalidity) is expressly excluded. If the invalidity of a provision is based on a measure of performance or time (period or date) specified therein, the provision shall be agreed with a legally permissible measure closest to the original measure.
In other words, this is only a general conclusion clause. In the event that we have forgotten to regulate something or individual components of our terms and conditions are or become ineffective, this clause shall apply. We commit ourselves to finding an arrangement with which we can both live well.


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The U.S. Supreme Court once said: “But unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.” Hutto v. Davis, 454 U.S. 370 (1982). This post is a yet another perfect example of how the “unpublished” Opinion is used to defy the authority of the United States Supreme Court. What is clear from this post is that if the Eleventh Circuit, U.S. Court Of Appeal, does not like the facts or the law involved in a case, it will simply make a terse one sentence “opinion” ignoring both the facts and the law. “The “petition for writ of mandamus and petition for writ of prohibition” is DENIED.” See “Opinion“, Case No. 01-15754. In this matter, Case No. 01-15754, the Eleventh Circuit declined to honor a petition for mandamus as a notice of appeal and perform meaningful appellate review as required by the U.S. Supreme Court. The petition attacks a sua sponte issued pre-filing injunction that was rendered on September 20, 2001 and excoriates Judge Graham for his misconduct and mismanagement. It is no wonder that Judge Graham feels that he is above the law and that he is the “Teflon Don”.
In addition, on a parallel track, a direct appeal, Case No. 01-13664, is already pending when Judge Graham renders the sua sponte issued pre-filing injunction of September 20, 2001. The handling of this matter yields even more dishonest and evasive measures.
The Eleventh Circuit had to make a choice. It could save Judge Graham from his record, or it could follow binding precedent as set forth by the United States Supreme Court. It chose to save Judge Graham from the consequences of his own misbehavior and hubris. Is the Eleventh Circuit free to ignore the edicts of the United States Supreme Court?
“A document intended to serve as an appellate brief may qualify as the notice of appeal required by Rule 3. So long as such a document is filed within the time allowed by Rule 4 for a notice of appeal and satisfies Rule 3(c)’s requirements as to the content of such a notice, it may be treated as the “functional equivalent” of the formal notice demanded by Rule 3.” SMITH v. BARRY ET AL. 502 U.S. 244 (1992) (Syllabus). See also Eleventh Circuit’s Finch v. Vernon, 845 F. 2d 256, 259-260 (11th Cir. 1988) (citing United States v. Rogers, 788 F.2d 1472, 1475 (11th Cir.1986) (notice of appeal requirement is satisfied by any statement clearly evincing the party’s intent to appeal); Yates v. Mobile County Personnel Board, 658 F.2d 298, 299 (5th Cir. Unit B Oct. 1981) (“A petition for mandamus filed in this court, however, may also satisfy the notice of appeal requirement, especially when the appellant is proceeding pro se … and is thus generally ignorant of procedural rules.”).”).
The Eleventh Circuit received a mandamus petition that was docketed as being received on October 2, 2001. See Receipt. This is a 25 page petition plus exhibits. Microsoft Word Format, html format, and pdf format. According to the Supreme Court and the Eleventh Circuit’s own binding precedents, this mandamus petition should have been treated as a notice of appeal.
“If a document filed within the time specified by Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal.“); Rinaldo v. Corbett, 256 F.3d 1276, 1279-80 (11th Cir.2001)…To perform its function a notice of appeal must specify the parties taking the appeal, designate the judgment or order being appealed, and name the court to which the appeal is being taken. Fed. R.App. P. 3(c)(1). That is all.” Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475 F.3d 1228 (11th Cir. 2007).
The Defendant, Highlands County Board of County Commissioners, and U.S. Dist. Judge Donald L. Graham also received a copy of the mandamus petiton. Judge Graham did not file a brief in opposition to the petition. The Defendant did not file a responsive brief to the petition. The Eleventh Circuit did not require anyone to respond the petition.
On September 20, 2001, Judge Graham rendered a pre-filing injunction, sua sponte, against Marcellus Mason. See Document No. 878. This type of order is also referred to as “Vexatious Litigant injunction“, “pre-screening injunction”, and “leave to file injunction”. This order specifically states: “THIS CAUSE came before the Court sua sponte.” See Document No. 878, pg. 3. There is a string of U.S. appellate courts and state courts, including Florida and Georgia that have declared sua sponte issued pre-filing injunctions issued without notice and opportunity to respond to be invalid. See Case Law On Pre-Filing Injunctions Section, Judge Graham Disagrees With The 1st, 2nd, 3rd, 4th, 5th, 9th, 10th, 11th, And DC Circuit Courts Of Appeal.
Graham has usurped the power of law enforcement.
Graham improperly interjected himself into matters under the Florida Public Records Act.
Grant has allowed significant and material pretrial motions to languish in the Court without making a decision. Petitioner will show that Graham has allowed motions and appeals to go for months without being addressed. Petitioner will show that Graham has granted summary judgments without addressing filings by this Petitioner, which attacks the summary judgment. Graham has repeated refused to rule on the Petitioner’s Motions For Summary Judgment.
Graham has had Petitioner’s Motion for a Preliminary Injunction to languish in his Court and die on the vine without a ruling on the merits, despite the fact that the motion has been pending since November 24, 1999.
Graham has failed to conduct proper “de novo” reviews when required. Graham has effectively undermined the will of Congress by allowing a Magistrate Judge to decide dispositive matters without the express authorization of all the parties. The Magistrate Judge has been granted “de facto” dispositive authority by Graham.
Graham has been dishonest in claiming that matters have been litigated when they have not been litigated.
On numerous occasions, Graham has exercised judicial authority without explaining the law and the facts that underlie his decisions. In this respect Graham has made a host of arbitrary and capricious decisions.
Graham has been guilty of gross mismanagement and malfeasance in every case to which this Petitioner has been a party to.
See Petition For Mandamus, pgs. 3,8-12,18-23.
Is The Eleventh Circuit An Advocate for Judge Graham?
On February 6, 2004, Judge Stanley Marcus, Judge Rosemary Barkett, and Judge Susan Black were sent a letter via U.S. certified mail informing them of the legal atrocities in this matter. See Letter. However, all declined to answer or take the appropriate legal action as required by the United States Supreme Court.


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Conrad, Joseph. A Conrad Argosy. Photo available. New York. Doubleday & Co. 1942. 715 pps. 4to. Hardcover. Introduction by William McFee. Near fine copy (very light sunning to spine).
Conrad, Joseph. A Conrad Argosy. Photo available. New York. Doubleday & Co. 1942. 715 pps. 4to. Hardcover. Introduction by William McFee. Fine copy (book plate).
Conrad, Joseph. The Selected Works of Joseph Conrad. Lord Jim, Nostromo, The Secret Agent & A Selection of Short Stories. Photo available. Ware. Wordsworth. 2005. Octavo. Soft cover. Near fine copy (very light shelf wear).
Conrad, Pam & S. Saelig Gallagher. Blue Willow. Photo available. New York. Philomel Books. 1999. 4to. Hardcover. First edition. Full number line. Illustrated in black, white and color by S. Saelig Gallagher. Fine copy in fine dust jacket (in mylar).
Conrad, Paul. Conartist (Con Artist). Photo available. Los Angeles. Los Angeles Times. 1993. 4to. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Conte, Robert. The History of The Greenbriar. America's Resort. Photo available. Charleston. Pictorial Histories. 1991. 4to. Hard cover. Second edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Conti, Flavio. Homes of Kings. The Grand Tour. Photo available. Boston. HBJ Press. 1978. 4to. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Conti, Flavio. Individual Creations. The Grand Tour. Photo available. Boston. HBJ Press. 1978. 4to. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Conti, Flavio. Shrines of Power. The Grand Tour. Photo available. Boston. HBJ Press. 1978. 4to. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Conti, Flavio. Splendor of the Gods. The Grand Tour. Photo available. Boston. HBJ Press. 1978. 4to. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Contini, Mila. Fashion. From Ancient Egypt to the Present Day. Photo available. New York. Crescent Books. 1965. 4to. Hard cover. First edition. Illustrated in black, white and color. Fine copy in near fine (light shelf wear) dust jacket (in mylar).
Contreras, Alan. Northwest Birds in Winter. Photo available. Corvallis. Oregon State University Press. 1997. Octavo. Soft cover. First edition. Illustrated. Fine copy.
Conway, Gary. Art of The Vineyard. Signed by the author. Photo available. Boston. Journey Edition. 1995. 4to. Hardcover. First edition. Illustrated in black, white and color by the author. Signed by the author. Fine copy in fine dust jacket (in mylar).
Coogan, Tim Pat & George Morrisoin. The Irish Civil War. Photo available. London. Weidenfeld & Nicolson. 1998. 288 pps. 4to. Hardcover. First edition. Illustrated. Important reference work. Fine copy in fine dust jacket (in mylar).


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Initiative 300, which would have required Denver employers to provide paid sick and safe time to their employees, was rejected by Denver voters in yesterday’s election. The issue failed by a 2-1 ratio. The initiative would have required city employers to give workers paid sick days at a rate of one hour off per every 30 hours worked. Large businesses would have had to supply up to nine days of paid leave per year, with small businesses having that number capped at five.
Initiative 300 was the subject of a Legal Connection point/counterpoint discussion last month. Those articles can be found here and here.
The Colorado Supreme Court issued its opinion in State Farm Mut. Ins. Co. v. Reyher on October 31, 2011.
Class Actions—Class Certification—Burden of Proof—Colorado Automobile Accident Reparations Act.
Applying the standards enunciated in Jackson v. Unocal Corp. (Oct. 31, 2011, No. 09SC668), the Supreme Court affirmed the trial court’s decision to deny class certification, thereby reversing the court of appeals’ judgment. The Court concluded that the trial court rigorously analyzed plaintiffs’ class-wide theories of liability, as well as the evidence offered by defendant to refute those theories in determining that the predominance of individual issues precluded class certification.
The Colorado Supreme Court issued its opinion in BP America Production Co. v. Patterson on October 31, 2011.
Class Actions—Burden of Proof—Circumstantial Evidence—Inference or Presumption—Fraudulent Concealment.
Applying the standards enunciated in Jackson v. Unocal Corp. (Oct. 31, 2011, No. 09SC668), the Supreme Court affirmed the trial court’s decision to grant class certification. The Court held that the ignorance and reliance elements of fraudulent concealment may be inferred from circumstantial evidence, enabling plaintiffs to establish a theory of fraudulent concealment on a class-wide basis with evidence common to the class. The Court also held that a defendant may introduce individual evidence to rebut such a class-wide inference. The Court concluded that the trial court rigorously analyzed all the evidence presented in support of and in opposition to class certification, as required by Jackson.
The Colorado Supreme Court issued its opinion in Garcia v. Medved Chevrolet, Inc. on October 31, 2011.
Class Actions—Burden of Proof—Circumstantial Evidence—Inference or Presumption—Colorado Consumer Protection Act.
Applying the standards enunciated in Jackson v. Unocal Corp. (Oct. 31, 2011, No. 09SC668), the Supreme Court concluded that the trial court failed to rigorously analyze the evidence in deciding to grant class certification. The Court therefore affirmed the court of appeals’ decision remanding the case to the trial court to conduct such an analysis.
Consistent with its opinion in BP America Production Co. v. Patterson, 185 P. 3d 811 (Colo. 2008),the Court held that the causation and injury elements of plaintiffs’ Consumer Protection Act claims may be inferred from circumstantial evidence common to the class. The Court further held that defendant has the opportunity to rebut such class-wide inferences with individual evidence. The Court concluded that, in its analysis, the trial court neglected to consider the evidence offered by defendant to refute plaintiffs’ class-wide theories of liability.
The Colorado Supreme Court issued its opinion in Jackson v. Unocal Corp. on October 31, 2011.
Civil Procedure—Class Actions—Burden of Proof—Expert Disputes.
In the lead case in a series of four class action cases, the Supreme Court addressed the standards a trial court must apply when deciding whether to certify a class pursuant to C.R.C.P. 23. The Court declined to adopt a specific burden of proof and therefore reversed the court of appeals’ decision holding that a trial court must apply a preponderance of the evidence standard to C.R.C.P. 23’s class certification requirements. Instead, the Court held that a trial court must rigorously analyze the evidence presented and determine to its satisfaction that each C.R.C.P. 23 requirement is met.
The Court also considered whether a trial court may resolve factual or legal disputes relevant to class certification where those disputes independently overlap with the merits. The Court held that a trial court may consider factual or legal disputes to the extent necessary to satisfy itself that the requirements of C.R.C.P. 23 have been met, but may not resolve factual or legal disputes to screen out or prejudge the merits of the case. The Court extended this holding to expert disputes, such that a trial court may consider expert disputes in determining whether class certification is appropriate, but need not determine which expert will prevail at trial or whether an expert’s testimony ultimately will be admissible at trial.
The First Judicial District Nominating Commission will meet December 5, 2011, at the Jefferson County Combined Court to interview and select nominees for appointment by Governor Hickenlooper to the office of District Judge for the First Judicial District, which serves Gilpin and Jefferson counties. The vacancy will be created by the appointment of the Honorable Brian Boatright to the Colorado Supreme Court. The vacancy will occur on November 18.
Eligible applicants for appointment to fill the vacancy must be qualified electors of the First Judicial District and must have been admitted to the practice of law in Colorado for five years. Applications must be received by Thursday, November 17. The appointed district judge will serve an initial provisional term of two years before facing a retention election. Retained judges serve six-year terms.

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