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Suppose an employee requests two weeks of vacation, and the request is denied – perhaps on grounds of seniority or for operational reasons. You then receive a doctor’s note stating that the employee needs two weeks of medical leave under the Family and Medical Leave Act (FMLA) for precisely the same dates as the earlier vacation request. How can the company know this is a legitimate request? And if it isn’t, what actions can the company take without violating the employee’s FMLA rights? Requests for clarification or authentication of the medical note, requiring re-certification because the request is inconsistent with prior notes you’ve received about this employee’s condition, or arranging second or third medical opinions may all be proper in the right context. In addition, many courts have held that a company’s honest belief that the employee was engaged in dishonesty is sufficient evidence to support terminating an employee, and so enough to defeat a claim for interference with FMLA rights.
An aggressive approach will not necessarily be constructive: although the company may deny leave in some cases where the employee has failed to follow protocol, actively discouraging the employee from using statutory leave for its intended purpose can amount to unlawful interference with rights protected under the FMLA. For example, in Gordon v. U.S. Capitol Police (D.C. Cir. 2015), the employer reacted with hostility to the notion of FMLA leave, and to the employee’s request in particular, and required her to undergo a fitness-for-duty examination that caused her to lose $900 in pay and interfered with her career prospects. Because this conduct had a reasonable tendency to restrain, interfere with, or deny the exercise or attempt to exercise an FMLA right, the employee had stated a valid claim for interference with her rights.
However, FMLA is not intended to relieve employers of their common sense. In Hamm v. Nestle USA (N.D. Ill. 2013), the employer didn’t violate the FMLA when it fired an employee on the suspicion that he misused protected leave to, among other things, attend a music festival. The company’s suspicion was based, among other things, on the request for leave being submitted only after the denial of approved time off. In Hanson v. Colorado Judicial Dep’t (10th Cir. 2014), the court found that misusing FMLA-protected time to train for a new job was a legitimate, non-discriminatory reason for discharge that defeated a retaliation claim. Likewise, employees cannot expect protection from discharge when they tamper with their medical certification, Buel v. Toledo Hospital (N.D. Oh. 2013); Chapman v. Verizon Communications (W.Va. 2013), or post photos of themselves drinking at a festival on the same day they claimed a flare-up for chronic pain, Jaszczyszyn v. Advantage Health Physician Network (6th Cir. 2012).
Before terminating an employee for suspected FMLA misuse, the company needs to be sure of its facts, and nothing seems to shutter our objectivity as effectively as a whiff of betrayal. In Gurne v. Michigan Bell Tel. Co. (E.D. Mich. 2011), an employee was fired for misusing her FMLA leave to attend a birthday party. The employee denied her manager’s claim that the party occurred during work hours, and the court held that the company’s decision to deny her FMLA leave for the afternoon in question and fire her for an unauthorized absence could not reasonably rely on an “honest belief” that the employee had engaged in misconduct because the company failed to account for the employee’s specific medical restrictions or the stark differences between different witnesses’ versions of events. In short, despite the considerable effort that went into investigating the claim, the outcome in Gurne didn’t qualify as a “reasonably informed and considered decision” sufficient to defend the company’s actions.
Because of these hazards, I’d almost always recommend that the employer carefully investigate its concerns about possible FMLA abuse, in addition to exploring its options under the regulations, before proceeding to discipline. Which options make the most sense may depend on timing. Should the company hire a physician to examine the employee and provide a second opinion on the validity of the employee’s certification? Can we substantiate the rumors about the incapacitated employee? Does the employee’s known or suspected conduct violate any written policies? These considerations can matter, and not just solely in the context of a FMLA lawsuit: in Bally’s Park Place v. National Labor Relations Board (D.C. Cir. 2011), the employer committed an unfair labor practice in violation of the National Labor Relations Act by firing an employee for dishonesty where he requested FMLA leave and concurrent paid sick time for his entire shift, but used the first 20 minutes of that leave to attend a union rally. Although the employer asserted that the employee had violated a work rule requiring honesty in all communications, as well as an unwritten zero-tolerance policy prohibiting misuse of medical leave, the NLRB held, and the court affirmed, that the unwritten nature of the zero-tolerance policy undermined the employer’s claim to its existence, and further, that company policies suggested that progressive discipline would ordinarily have been a more likely outcome for such misconduct. The employer’s burden in that particular labor context was to show, not that it could have fired the employee for this misconduct, but that it would have. (The employee had not, after all, requested leave for a dishonest purpose, and his family care obligations were not scheduled to begin until after the union rally.) By contrast, a pre-existing employment policy prohibiting unapproved travel while on paid sick leave does not necessarily violate FMLA, and may simplify certain employment decisions. Pellegrino v. Communication Workers of America (3d Cir. 2012). Such solutions should be developed carefully (and implemented only prospectively); although it’s unlawful to impose restrictions on an employee’s protected rights (for example, prohibiting a spokesperson from calling in for unforeseeable leave on behalf of an employee who could not do so personally, Millea v. Metro North Railroad Co., 2d Cir. 2011), the employer in Pellegrino avoided this problem by modifying its sick leave policy to restrict unapproved travel while on paid sick leave, which happened to run concurrently with leave under the FMLA. This, the court held, was permissible under FMLA.
A measured response is also best because the company, in its frustration, may overlook reasonable alternatives – not all of which suggest employee dishonesty. Did the employee take on another, less physically demanding job elsewhere during unpaid leave because their regular employer was unwilling or unable to consider a light-duty assignment that would have let them return to work? Did an employee with sporadic health problems call out sick but recover late enough in their shift that commuting to work would be a waste of time? Absent a relevant policy or special circumstances, many people would hesitate to call these good examples of abuse of leave. And even when the company is convinced of the employee’s dishonesty, proving dishonesty can be challenging, and the employer would likely prefer to minimize its exposure in litigation.
If you’re concerned that one of your employees may be abusing their statutory leave, you should consult with counsel to review your options. In the meantime, however, employers may wish to develop appropriate policies that accurately reflect their priorities and concerns, so that employees aren’t in a position to claim that they were unaware of the company’s expectations.
About the author : Mr. Keil is a partner at boutique labor and employment law firm Collazo Florentino & Keil LLP.

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Petitioner Alan Dale Smith, a New Mexico state prisoner incarcerated in Arizona, was convicted, pursuant to a plea agreement, of kidnaping, aggravated burglary and aggravated assault. Proceeding pro se, he seeks a certificate of appealability (COA) to challenge the district court's order denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (no appeal unless COA issued). We deny issuance of a COA and dismiss the appeal.
After his conviction, petitioner filed a motion for post-conviction relief with the state court, but he did not give any grounds for relief. Consequently, the state court judge mailed copies of the New Mexico state rules pertaining to state post-conviction relief, including the rule for appealing from an order denying post-conviction relief. Thereafter, petitioner filed another request for post-conviction relief with the state court, which was denied on the merits. He failed to file a timely notice of appeal from that denial.
Petitioner then sought federal habeas relief, explaining that he had been unable to appeal timely the denial of his state post-conviction motion because, by the time he received the ruling, there were only five days until the deadline and he had been unable to get a form. The district court held that petitioner had not exhausted his claims because he had not appealed the state court's ruling.
Petitioner's failure to appeal the state post-conviction denial will procedurally bar his federal habeas claims unless he can (1) show cause for the default and actual prejudice, or (2) demonstrate that the failure to consider his claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Cannon v. Gibson, 259 F.3d 1253, 1265 (10th Cir. 2001). Because the district court dismissed the habeas petition on procedural grounds without reaching petitioner's underlying constitutional claims, we examine whether "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 478 (2000).
Petitioner has attached to his appellate brief various documents that were not provided to the district court. We do not consider them, but instead we evaluate the information on which the district court was required to make its decision. See John Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500, 506 (10th Cir. 1994) (appellate court will not consider evidence not before district court). Petitioner's reasons for his procedural default  that he had only five days to file a notice of appeal and he had been unable to get an appropriate form  do not demonstrate "cause." Much of his argument is devoted to showing the obstacles he encountered in obtaining forms for post-conviction relief, rather than the forms necessary to perfect his appeal. He has not explained why, in the five days between his receipt of the order denying post-conviction relief and the deadline for filing a notice of appeal, he was unable to mail a notice of appeal. He has also not shown how any problems with the Arizona prison legal system adversely affected his ability to file a notice of appeal. Therefore, the district court's procedural ruling was correct, and we need not examine the underlying constitutional claims. Slack, 529 U.S. at 485. Moreover, petitioner does not present an argument that federal review of the claims is necessary to prevent a fundamental miscarriage of justice. Therefore, he is barred from bringing the claims in federal habeas proceedings.
The application for issuance of a COA is denied. Appeal DISMISSED. The mandate shall issue forthwith.


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We at BAIER GmbH + Co KG Maschinenfabrik - hereinafter referred to as "BAIER" - attach immense importance to data protection, that is to say the protection of YOUR personal data.
We treat your personal data in confidence and in compliance with the statutory data protection regulations and this Data Protection Statement.
This Data Protection Statement applies equally for all Internet offerings ("Website(s)") for which BAIER is considered the controller (see Section 2).
As a general rule we do not process our users' personal data unless it is necessary to enable us to present a functioning website and our content and services. As a matter of course, our users' personal data is not processed without the user's consent. One exception would be cases in which it is not possible to obtain the consent beforehand for practical reasons, and/or if processing of the data is permitted by legal provisions.
The online services offered on our Websites (e.g., newsletter, contact form, etc.) are specifically designed to help us reach our business objectives. To this end, we need to continuously optimise the services we provide online (customer satisfaction, security, user friendliness, etc.).
The main reason we process data is if it is needed to substantiate the legal relationship, or to design or amend the content thereof.
To send you information, including advertising materials (e.g., the newsletter).
To lend our Websites still greater appeal; to identify points of particular interest and also publicise usage-based online advertising.
To analyse and evaluate visitor access events and also to detect any technical problems and respond to them in good time.
If we obtain consent from the data subject to carry out processing operations on personal data, our activities are governed by Art. 6 Para. 1 letter a GDPR as the legal basis therefor.
contractual arrangements, in response to enquiries about our products or services, for example.
If we need to process personal data to comply with a legal obligation to which our company is subject, (e.g., tax obligations), the legal basis for this is Art. 6 Para. 1 letter c GDPR.
If it is essential to process personal data to protect the vital interests of the data subject or another natural person, the legal basis therefor is Art. 6 Para. 1 letter d GDPR.
If such processing is essential in order to safeguard the legitimate interests of our company or of a third party and these interests are not outweighed by the interests, basic rights and basic freedoms of the data subject, Art. 6 Para. 1 letter f GDPR serves as the legal basis therefor. This applies e.g. to collections and analyses for statistical purposes, which we carry out to optimise our web offerings.
We only process and store your personal data for the period necessary to fulfil the purpose for which it is stored. When its purpose has been fulfilled or ceases to exist, your personal data is erased or blocked. It can be stored for longer than this if such provisions appear in the European or national legislatures in legally binding ordinances, laws or other regulations of the European Union to which the controller is subject. The data is also blocked or erased when a retention period stipulated in the aforementioned norms expires, unless there is a pressing need for continued retention of the data to enable the conclusion or fulfilment of a contract.
Every time they are accessed, our Websites automatically capture a range of general data and information, which is stored temporarily in a server's logfiles.
In rare cases, this (technical) data in the logfiles may be personal data. The temporary storage of the IP address by the system is necessary to enable the Website to be delivered to the user's computer. To allow this, the user's IP address has to remain stored for the duration of the session. As a rule, however, we only use this data if it is absolutely necessary for technical reasons to ensure operation and protect our Websites from attacks and misuse; in pseudonymised or anonymised form it is also used for purposes of advertising, market research and to help us design our services to meet current needs. This is why users' IP addresses are stored as a technical precaution for a period not exceeding 7 days. They may be stored for longer. In this case, the users' IP addresses are erased or masked so that it is no longer possible to make a connection to the accessing client. This data is not stored together with any of the user's personal data.
The legalbasis for temporary storage of the data and logfiles is Art. 6 Para. 1 letter f GDPR.
The capture of the data in order to deliver the Website and storage of the data in logfiles are both essential for enabling operation of the Website. Consequently, the user has no right of objection in this case.
On our Websites, you will find contact forms which you can use to communicate your wishes to us according to your area of interest. The data you supply in the input mask (e.g., your company, name, email address, etc.) is used by us to appropriately respond to your contact.
The legal basis for processing data where the user's consent has been given is Art. 6 Para. 1 letter a GDPR. The legal basis for processing data associated with the contact form is Art. 6 Para. 1 letter f GDPR. If the email indicates an intent to enter into a contract, a further legal basis for processing is constituted by Art. 6 Para. 1 letter b GDPR. The data is erased as soon as it is no longer needed to fulfil the purpose for which it is collected. You can object to the further processing of your data at any time.
As part of our B2B webshop, we process your customer data in all cases to help us manage the associated business processes. On the one hand, this involves the data that is needed directly for the ordering process, such as billing and delivery addresses, which may contain personal data. If such is necessary to enable the order to be carried out, this data may also be transmitted to the transport service provider we have tasked with delivery. On the other hand, the data each customer enters in the B2B webshop user administration system themself is also processed. This enables us to track which user has submitted which purchase order. The legalbasis for processing your personal data in the B2B webshop is Art. 6 Para. 1 letter b GDPR, since this data is used for purposes of fulfilling a contract within the meaning of Art. 6 Para. 1 letter b GDPR. You can object to the further processing of your data at any time, unless we are obliged to continue storing it to comply with statutory, incorporation-related or contractual retention requirements. For more information about the cookies we use in the B2B webshop, please refer to Section 11 "Cookies" in this Data Protection Statement.
On our Website, you will find the option to subscribe to our free newsletter. When you register to receive the newsletter, the information you enter in the input mask - that is to say at least your email address - is transmitted to us. In order to be able to process information for the registration process, we obtain your consent and refer you to this Data Protection Statement. The consents to distribution are obtained on the basis of Art. 6 Para. 1 letter a, Art. 7 GDPR. For the registration to receive our newsletter, we use the "double opt-in" procedure. This means that after you have given us your consent to send you the newsletter as part of the registration process, we send you a confirmation email to your email address, in which we ask you to confirm your registration. If you do not provide this confirmation within 72 hours, your registration is deleted automatically. If you confirm your wish to receive the newsletter, we store your data until you unsubscribe from the newsletter. The only purpose for which this data is stored is to enable us to send you the newsletter. We also store your IP addresses and times when you send us your registration and confirmation to prevent your personal data from being misused (e.g., registration for the newsletter using a different email address). This other personal data which is collected in the course of the registration process is typically deleted after a period of seven days.
You can withdraw your consent for us to send you the newsletter at any time. To notify us of your withdrawal, you simply need to click on the link which is provided in every newsletter email or send an email to newsletter(at)kurz.de.
The Websites use the YouTube video platform, which is operated by YouTube LLC, 901 Cherry Ave. San Bruno, CA 94066, USA. YouTube is a platform that enables the playback of audio and video files.
When you access a page from our Internet presence, the player which is integrated in the page by YouTube creates a link to YouTube that ensures the technical transmission of the video and/or audio file. When the link to YouTube is created, data is transmitted to YouTube. The YouTube server receives information about the specific page of our Internet presence that you visited. If you also happened to be logged into your YouTube account, you would enable YouTube to associate your surfing behaviour directly with your personal profile. You can prevent this capability entirely by logging out of your YouTube account beforehand.
For more information about the collection and use of your data by YouTube and your rights in this regard and setting options for protecting your privacy, please refer to the notes on data protection there under https://policies.google.com/privacy?hl=de .
Cookies serve to make our Websites and online services more user-friendly, more effective and more secure. These and similar technologies are used for wide variety of purposes, including storing your settings, logging in and authentication, interest-related online advertising, analyses and statistics.
Most of the cookies we use are of the type known as "session cookies". They are deleted automatically at the end of your visit to our Website. Other cookies remain stored on your end device until you delete them. These cookies enable us to recognise your browser again the next time you visit.
You can make settings in your browser so that you are informed when cookies are set, and you can decide whether to accept them on a case by case basis, for certain cases, or to block them generally, and activate the automatic deletion of cookies when you close your browser.
Deactivating cookies may have the effect of limiting the functionality of the Website.
Our Websites use functions provided by the web analysis service Google Analytics to determine which content on our Websites is most interesting to you, for example.
The information generated by the cookie about your use of this Website is usually transmitted to a Google server in the USA and stored there.
You can object to the capture of your data by Google Analytics by clicking on the following link. An "opt-out" cookie is set, which prevents your data from being captured when you visit this Website in future: Deactivate Google Analytics. Deleting all of the cookies in your browser also deletes the corresponding opt-out cookie.
We have entered into an agreement for contract data processing with Google, and we apply the strict regulations of the German data protection authorities to the use of Google Analytics to the fullest extent.
We use the "Activate IP anonymisation" function on this Website. However, this entails your IP address being truncated by Google beforehand within the member states of the European Union or in other signatory states of the Agreement of the European Economic Area. Only in exceptional cases is the full IP address transmitted to a Google server in the USA and truncated there. On the instructions of the operator of this Website, Google will use this information to analyse your use of the Website, to compile reports on Website activities and to provide additional services for the Website operator associated with Website and Internet use. The IP address that is transmitted by your browser as part of the Google Analytics function is not merged with other data by Google. The cookies stored by Google Analytics is deleted at the latest after 14 months.
In the context of Google-AdWords we use the "Conversion-Tracking" analysis service on our Websites.If you have come to our Website via a Google advertisement, a cookie is placed on your computer. These conversion cookies lose their validity after 30 days and are not used to dentify you personally. If you visit certain pages on our Websites and the cookie has not expired, we and Google can see that you as a user have clicked on one of the advertisements that were placed with Google and were consequently redirected to our page.
Google uses the information collected with the aid of the conversion cookies to prepare visit statistics for our Website. From these statistics we learn the total time spent by users who have clicked on our advertisement, and also which pages of our Website were subsequently accessed by the respective user. However, neither we nor other providers who use Google-Adwords in our advertising receive any information that enables us to identify users personally.
You can prevent the conversion cookies from being installed by making corresponding settings in your browser, for example with the browser setting that deactivates the automatic setting of cookies generally, or which specifically only blocks the cookies from the "googleadservices.com" domain.
This function serves to present to visitors to the Website interest-specific advertisements for "similar target groups" within the Google advertising network. The browser of the Website user stores cookies which render the user recognisable when they return to Websites which belongs to the Google advertising network. On these pages, the user can then be presented with advertisements relating to the content the visitor viewed previously on Websites that use the Google Remarketing function. By its own account, Google does not collect any personal data in this process.
If you still do not wish to have the Google Remarketing function on your computer, you can deactivate it generally by making the corresponding settings at http://www.google.com/settings/ads.
For more detailed information about Google Remarketing and the Google data protection statement, please visit: http://www.google.com/privacy/ads/ .
Session ID cookie: For this, a random-generated combination of letters and numbers is assigned to the respective user, e.g., to enable secure login or to store the progress in the ordering processes (products in the shopping cart). In addition his cookie is used to check whether the user has already accepted the cookie instructions (cookie banner) in the B2B webshop, which is shown on the page until it is confirmed.
The cookie stored in the B2B webshop is deleted after 12 months or sooner.
For the purposes described in Section 3.1, your data is also transmitted to the responsible offices of BAIER and to affiliates of BAIER if this is necessary in order to fulfil the stated purposes and thus conforms to the legal permission regulations or if you have given your consent for the transmission.
We are permitted to forward personal data to third parties if for example participations in promotional activities or competitions etc. are jointly offered by us with a third party provider. In these cases you will be advised in a separate notice that your personal data will be sent to third parties before it is transmitted.
We use external service providers in some cases to process your personal data. These providers have been selected by us with extreme care and engaged in writing. They are bound by our instructions and are reviewed by us regularly. The service providers will not communicate this personal data to third parties.
Furthermore, we ensure that your personal data is not communicated to third parties unless we are obliged to do so by law or unless you have explicitly stated that we may do so.
The Worldwide Web is a publicly accessible system. If personal data is divulged online, this data is transmitted at the user's risk. The data can be lost in transit or may fall into the hands of unauthorised third parties. BAIER has adopted measures to guarantee the confidentiality and security of your personal data.
If you transmit your personal data to us via our Website or in an email, it will only be used for the purpose stated in Section 3.1.
Our employees are bound individually to observe a duty to confidentiality and are obliged to observe the principles of data secrecy.
Our security measures reflect the current state-of-the-art as far as reasonably possible.
The security of our systems is checked regularly, so that we can permanently protect the data entrusted to us from any damage, loss or access.
The data protection officer works continuously to ensure that the provisions of the law are maintained.
You can configure your browser so that you are informed as soon as cookies are to be set, so that you can accept them globally or on a case by case basis, or reject them globally (see Section 11).
You can see whether an Internet connection is secure, among other things, from the address. If the address begins with https, this indicates that the connection is secure (e.g. https://....de). We are making every effort to convert all of our Websites to https where this has not yet been done. Another indicator is the symbol of a locked padlock in the bottom icon tray of your browser.
We will never ask you to communicate confidential data such as a PIN number or your password by email, over the phone or by SMS, nor will we ask you to return or specify this data or enter access data directly.
If personal data about you is processed, you are a data subject within the meaning of the GDPR, and you have the following rights in respect of the controller. Regarding this matter, please contact our data protection officer using the contact information provided in Section 2.2.
You have the right require that we provide you with information about the personal data we have stored relating to you.
You have the right to require that personal data relating to you be corrected and/or completed immediately.
You have the right to require that the processing of your personal data be restricted if you are contesting the accuracy of the data, if the processing is unlawful but you reject the option to have it erased and we do not need the data any more but you need it to enforce, exercise or defend your legal rights or you have submitted an objection to the processing in accordance with Art. 21 Para. 1 GDPR. If the processing of the personal data relating to you has been restricted, apart from saving it, this data can only be processed with your consent or in order to enforce, exercise or defend legal rights or to protect the rights of another natural or legal person or for reasons of substantive public interest of the union or of a member state. If the restriction of processing has been restrained pursuant to the above conditions, you will be informed by us before the restriction is cancelled.
You have the right to request the erasure of personal data relating to you that is stored with us, unless it is essential for the exercise of the right to the free exchange of opinion and information, processing to fulfil a legal obligation for reasons of public interest or for enforcing, exercising or defending legal rights.
If you have exercised your right to rectify, erase or restrict processing (15.2-15-4), we will notify all recipients to whom we have disclosed personal data relating to you of this rectification or erasure of the data or of the restriction of processing thereof unless this proves impossible or is associated with unreasonable additional effort.
You have the right to have personal data that you provided to us delivered to you or a third party in a structured, standard, machine-readable format. If you require that the data be transmitted directly to another controller, this will only be done if it is technically possible.
If your personal data is processed on the basis of legitimate interests as stipulated in Art. 6 Para. 1 letter f GDPR, you have the right to file an objection to the processing pursuant to Art. 21 GDPR. The controller will discontinue processing personal data relating to you unless it can prove the existence of compelling reasons worthy of protection for continuing to process it which outweigh your interests, rights and freedoms or if processing serves the cause of enforcing, exercising or defending legal rights.
You have the right to withdraw your consent under data protection law at any time with effect for the future. The data that is collected before such withdrawal becomes legally enforceable is unaffected thereby.
Without prejudice to any other administrative or judicial remedy, you shall have the right to lodge a complaint with a supervisory authority, in particular within the Member State of your habitual residence, place of work or place of the alleged infringement, if the data subject considers that the processing of personal data relating to you infringes the GDPR.
It may be necessary (e.g., in the light of changes to the law) to update our Data Protection Statement. We therefore reserve the right to amend or supplement this Data Protection Statement whenever necessary. We will publish the change here. We therefore recommend that you review this Data Protection Statement regularly to ensure that your knowledge is up to date.

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LynchyRightNow: Shhh; It's Time To Keep It Real!
I needed a reason to bring back Keep It Real Friday. If you were giving it up to pay your catholic dues of Lent, Easter is over and Jesus has been resurrected, Tiger just shot a 68 on Day 1 at Augusta. Time to Keep It Real!
Are you kidding me?!? Miss the cut?!?!? As the immortal Tiger Woods returns (yes, I'm a tad over the top) to his proper seat, amongst golfers not the tabloids, I'm pulling for him. That's right housewives we don't care about your demographic. Watching Tiger literally plow through his best Day 1 score in his 16 trips to August, I'm all in. Let's get one thing straight, we (the general public) don't watch golf for the splendor, for the elegance, for the beautiful tee shots, we (the general public) are watching for Eldrick. We're either praying for a disaster or hoping we witness the "it" moment of 2010. Because believe you me, the disappointment of a SundayLESS Tiger, none of us want to see. Want him to get beat in a playoff hole? Want him to shred up the field? Want him to pump his fist at 18? Want him to slide on a green jacket with no one by his side? You still want him. For now, Tiger Woods is both the gift and the curse of sports. His star, big enough to draw monster numbers on Day 1, on a work day to boot, of a golf tournament? His star, big enough to sideline discussions about the best National Championship game college basketball has seen, which took place less than five days ago. Overshadow Sox v. Yanks? You bet. Keep It Real housewives, you want Tiger Woods as well.
Sox & Yank'ed out! After three games to open up the 2010 MLB season, I'm a little tired of the all hands on deck, guns fully loaded, earth rattling Red Sox v. Yankees regular season series. The two franchises, both baseball and professional sports royalty, are playing entirely to often, taking entirely too long, and after an explosive last six seasons, I'm spent. I've got some theories on this, after watching those ALCS battles in 2003 and 2004, can anything still compare? The Red Sox had a personality and the Yankees still had Bernie Williams. The walk off hits, the brawls, the Pedro Martinez type, these are the things missing from this rivalry, but would any of that make me want this more? Probably not. What is left to hype? The two teams spend more and spend more wisely than any franchise in baseball. Your home-grown talent, becomes their coveted free-agent. Their championship model, becomes yours, except with less resources. After watching 3 games of Sox v. Yankees, how are you supposed to then watch Braves v. Cubs? You won't see Beckett v. Sabathia, you won't see Papelbon leaning in against Jeter, you won't see Pedroia, Youkilis, or Granderson. Keep It Real! The Yankees v. Sox may be the best rivalry in sports, but in many little ways, it's slowly ruining baseball for the entire league,. and me!
Keep updated with us on the Podcast & follow me on Twitter, thank you for reading and as always. "Keep It Real!"

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SANTOS DE OLIVEIRA, PERCILLIA VICTORIA; GARCIA-ROSA, SHEILA; AZEVEDO SACHETTO, ANA TERESA; SOARES MORETTI, ANA IOCHABEL; DEBBAS, VICTOR; DE BESSA, TIPHANY CORALIE; SILVA, NATHALIA TENGUAN; PEREIRA, ALEXANDRE DA COSTA; MARTINS-DE-SOUZA, DANIEL; SANTORO, MARCELO LARAMI; MARTINS LAURINDO, FRANCISCO RAFAEL. Protein disulfide isomerase plasma levels in healthy humans reveal proteomic signatures involved in contrasting endothelial phenotypes. REDOX BIOLOGY, v. 22, APR 2019. Web of Science Citations: 0.
BRANDAO-TELES, CAROLINE; DE ALMEIDA, VALERIA; CASSOLI, JULIANA S.; MARTINS-DE-SOUZA, DANIEL. Oligodendrocytes: Potential of Discovering New Treatment Targets. FRONTIERS IN PHARMACOLOGY, v. 10, MAR 5 2019. Web of Science Citations: 0.
DE ALMEIDA, VALERIA; MARTINS-DE-SOUZA, DANIEL. Cannabinoids and glial cells: possible mechanism to understand schizophrenia. EUROPEAN ARCHIVES OF PSYCHIATRY AND CLINICAL NEUROSCIENCE, v. 268, n. 7, p. 727-737, OCT 2018. Web of Science Citations: 0.
SUSSULINI, ALESSANDRA; ERBOLATO, HELENA MUNHOZ; PESSOA, GUSTAVO DE SOUZA; ZEZZI ARRUDA, MARCO AURELIO; STEINER, JOHANN; MARTINS-DE-SOUZA, DANIEL. Elemental fingerprinting of schizophrenia patient blood plasma before and after treatment with antipsychotics. EUROPEAN ARCHIVES OF PSYCHIATRY AND CLINICAL NEUROSCIENCE, v. 268, n. 6, p. 565-570, SEP 2018. Web of Science Citations: 0.
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VELASQUEZ, ERIKA; NOGUEIRA, FABIO C. S.; VELASQUEZ, INGRID; SCHRNITT, ANDREA; FALKAI, PETER; DOMONT, GILBERTO B.; MARTINS-DE-SOUZA, DANIEL. Synaptosomal Proteome of the Orbitofrontal Cortex from Schizophrenia Patients Using Quantitative Label-Free and iTRAQ-Based Shotgun Proteomics. JOURNAL OF PROTEOME RESEARCH, v. 16, n. 12, p. 4481-4494, DEC 2017. Web of Science Citations: 6.
CASSOLI, JULIANA S.; BRANDAO-TELES, CAROLINE; SANTANA, ALINE G.; SOUZA, GUSTAVO H. M. F.; MARTINS-DE-SOUZA, DANIEL. Ion Mobility-Enhanced Data-Independent Acquisitions Enable a Deep Proteomic Landscape of Oligodendrocytes. PROTEOMICS, v. 17, n. 21 NOV 2017. Web of Science Citations: 3.
DAKIC, VANJA; NASCIMENTO, JULIANA MINARDI; SARTORE, RAFAELA COSTA; MACIEL, RENATA DE MORAES; DE ARAUJO, DRAULIO B.; RIBEIRO, SIDARTA; MARTINS-DE-SOUZA, DANIEL; REHEN, STEVENS K. Short term changes in the proteome of human cerebral organoids induced by 5-MeO-DMT. SCIENTIFIC REPORTS, v. 7, OCT 9 2017. Web of Science Citations: 8.
ZUCCOLI, GIULIANA S.; SAIA-CEREDA, VERONICA M.; NASCIMENTO, JULIANA M.; MARTINS-DE-SOUZA, DANIEL. The Energy Metabolism Dysfunction in Psychiatric Disorders Postmortem Brains: Focus on Proteomic Evidence. FRONTIERS IN NEUROSCIENCE, v. 11, SEP 7 2017. Web of Science Citations: 6.
TURCK, CHRISTOPH W.; GUEST, PAUL C.; MACCARRONE, GIUSEPPINA; ISING, MARCUS; KLOIBER, STEFAN; LUCAE, SUSANNE; HOLSBOER, FLORIAN; MARTINS-DE-SOUZA, DANIEL. Proteomic Differences in Blood Plasma Associated with Antidepressant Treatment Response. FRONTIERS IN MOLECULAR NEUROSCIENCE, v. 10, AUG 31 2017. Web of Science Citations: 0.
DEZONNE, ROMULO SPERDUTO; SARTORE, RAFAELA COSTA; NASCIMENTO, JULIANA MINARDI; SAIA-CEREDA, VERONICA M.; ROMAO, LUCIANA FERREIRA; ALVES-LEON, SONIZA VIEIRA; DE SOUZA, JORGE MARCONDES; MARTINS-DE-SOUZA, DANIEL; REHEN, STEVENS KASTRUP; ALCANTARA GOMES, FLVIA CARVALHO. Derivation of Functional Human Astrocytes from Cerebral Organoids. SCIENTIFIC REPORTS, v. 7, MAR 27 2017. Web of Science Citations: 11.
GARCEZ, PATRICIA P.; NASCIMENTO, JULIANA MINARDI; DE VASCONCELOS, JANAINA MOTA; DA COSTA, RODRIGO MADEIRO; DELVECCHIO, RODRIGO; TRINDADE, PABLO; LOIOLA, ERICK CORREIA; HIGA, LUIZA M.; CASSOLI, JULIANA S.; VITORIA, GABRIELA; SEQUEIRA, PATRICIA C.; SOCHACKI, JAROSLAW; AGUIAR, RENATO S.; FUZII, HELLEN THAIS; BISPO DE FILIPPIS, ANA M.; GONCALVES VIANEZ JUNIOR, JOAO LIDIO DA SILVA; TANURI, AMILCAR; MARTINS-DE-SOUZA, DANIEL; REHEN, STEVENS K. Zika virus disrupts molecular fingerprinting of human neurospheres. SCIENTIFIC REPORTS, v. 7, JAN 23 2017. Web of Science Citations: 23.
CAFE-MENDES, C. C.; FERRO, E. S.; TORRAO, A. S.; CRUNFLI, F.; RIOLI, V.; SCHMITT, A.; FALKAI, P.; BRITTO, L. R.; TURCK, C. W.; MARTINS-DE-SOUZA, D. Peptidomic analysis of the anterior temporal lobe and corpus callosum from schizophrenia patients. JOURNAL OF PROTEOMICS, v. 151, n. SI, p. 97-105, JAN 16 2017. Web of Science Citations: 8.
TAVARES, RAPHAEL; WAJNBERG, GABRIEL; SCHERER, NICOLE DE MIRANDA; PAULETTI, BIANCA ALVES; CASSOLI, JULIANA S.; FERREIRA, CARLOS GIL; PAES LEME, ADRIANA FRANCO; DE ARAUJO-SOUZA, PATRICIA SAVIO; MARTINS-DE-SOUZA, DANIEL; PASSETTI, FABIO. Unveiling alterative splice diversity from human oligodendrocyte proteome data. JOURNAL OF PROTEOMICS, v. 151, n. SI, p. 293-301, JAN 16 2017. Web of Science Citations: 1.
SCHMITT, ANDREA; MARTINS-DE-SOUZA, DANIEL; AKBARIAN, SCHAHRAM; CASSOLI, JULIANA S.; EHRENREICH, HANNELORE; FISCHER, ANDRE; FONTEH, ALFRED; GATTAZ, WAGNER F.; GAWLIK, MICHAEL; GERLACH, MANFRED; GRUNBLATT, EDNA; HALENE, TOBIAS; HASAN, ALKOMIET; HASHIMOTO, KENIJ; KIM, YONG-KU; KIRCHNER, SOPHIE-KATHRIN; KORNHUBER, JOHANNES; KRAUS, THEO F. J.; MALCHOW, BEREND; NASCIMENTO, JULIANA M.; ROSSNER, MORITZ; SCHWARZ, MARKUS; STEINER, JOHANN; TALIB, LEDA; THIBAUT, FLORENCE; RIEDERER, PETER; FALKAI, PETER; FORCE, MEMBERS WFSBP TASK. Consensus paper of the WFSBP Task Force on Biological Markers: Criteria for biomarkers and endophenotypes of schizophrenia, part III: Molecular mechanisms. WORLD JOURNAL OF BIOLOGICAL PSYCHIATRY, v. 18, n. 5, p. 330-356, 2017. Web of Science Citations: 4.
SAIA-CEREDA, VERONICA M.; CASSOLI, JULIANA S.; SCHMITT, ANDREA; FALKAI, PETER; MARTINS-DE-SOUZA, DANIEL. Differential proteome and phosphoproteome may impact cell signaling in the corpus callosum of schizophrenia patients. SCHIZOPHRENIA RESEARCH, v. 177, n. 1-3, p. 70-77, NOV 2016. Web of Science Citations: 7.
VENDRAMINI, PEDRO H.; GATTAZ, WAGNER F.; SCHMITT, ANDREA; FALKAI, PETER; EBERLIN, MARCOS N.; MARTINS-DE-SOUZA, DANIEL. Pioneering ambient mass spectrometry imaging in psychiatry: Potential for new insights into schizophrenia. SCHIZOPHRENIA RESEARCH, v. 177, n. 1-3, p. 67-69, NOV 2016. Web of Science Citations: 5.
CASSOLI, JULIANA S.; IWATA, KEIKO; STEINER, JOHANN; GUEST, PAUL C.; TURCK, CHRISTOPH W.; NASCIMENTO, JULIANA M.; MARTINS-DE-SOUZA, DANIEL. Effect of MK-801 and Clozapine on the Proteome of Cultured Human Oligodendrocytes. FRONTIERS IN CELLULAR NEUROSCIENCE, v. 10, MAR 3 2016. Web of Science Citations: 13.
MARTINS-DE-SOUZA, DANIEL; CASSOLI, JULIANA S.; NASCIMENTO, JULIANA M.; HENSLEY, KENNETH; GUEST, PAUL C.; PINZON-VELASCO, ANDRES M.; TURCK, CHRISTOPH W. The protein interactome of collapsin response mediator protein-2 (CRMP2/DPYSL2) reveals novel partner proteins in brain tissue. PROTEOMICS CLINICAL APPLICATIONS, v. 9, n. 9-10, SI, p. 817-831, OCT 2015. Web of Science Citations: 11.
SAIA-CEREDA, VERONICA M.; CASSOLI, JULIANA S.; SCHMITT, ANDREA; FALKAI, PETER; NASCIMENTO, JULIANA M.; MARTINS-DE-SOUZA, DANIEL. Proteomics of the corpus callosum unravel pivotal players in the dysfunction of cell signaling, structure, and myelination in schizophrenia brains. EUROPEAN ARCHIVES OF PSYCHIATRY AND CLINICAL NEUROSCIENCE, v. 265, n. 7, p. 601-612, OCT 2015. Web of Science Citations: 27.
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It is a familiar scenario for alcoholic beverages to be unlawfully offered to minors (i.e., individuals under 21 years of age) on university and college campuses and other venues throughout the year, especially on weekends and holidays when popular activities, such as sporting events, rock concerts, and fraternity, sorority and/or private parties are taking place. Gatherings of large numbers of people, loud music or noise, fighting or raucous behavior, and other reasons can compel campus, municipal or state police to investigate, oftentimes resulting in multiple individuals being arrested for direct or constructive possession and/or consumption of alcoholic beverages. Arrests also may occur when the police observe: (a) minors carrying or transporting alcoholic beverages by hand or in a motor vehicle; or (b) the aftermath of an evening of consumption of alcoholic beverages by minors, such as staggering gait, slurred speech, disorientation, loss of consciousness, vomiting, or alcohol poisoning.
The Commonwealth of Pennsylvania prohibits the purchase, consumption, possession or transportation of liquor or malt or brewed beverages by a minor. 18 Pa.C.S.A. §6308 (Purchase, consumption, possession or transportation of liquor or malt or brewed beverages) makes it a criminal offense if a person less than 21 years of age, attempts to purchase, purchases, consumes, possesses or knowingly and intentionally transports any liquor or malt or brewed beverages. It is no defense to this crime that the liquor or malt or brewed beverage was consumed in a jurisdiction other than the jurisdiction where the citation for underage drinking was issued.
The penalties for a violation of 18 Pa.C.S.A. §6308 may include a fine and restriction of operating privileges. A person convicted of violating subsection (a) of 18 Pa.C.S.A. §6308 may be sentenced to pay a fine of not more than $500 for the first violation and not more than $1000 for the second and each subsequent violation.
Further, pursuant to 18 Pa.C.S.A. §6310.4 (relating to restriction of operating privileges), when the Pennsylvania Department of Transportation suspends the operating privilege of a person for a violation of 18 Pa.C.S.A. §6307 (relating to misrepresentation of age to secure liquor or malt or brewed beverages), 18 Pa.C.S.A. §6308 (relating to purchase, consumption, possession or transportation of liquor or malt or brewed beverages) or 18 Pa.C.S.A. §6310.3 (relating to carrying a false identification card), the duration of the suspension shall be (a) for a first offense, a period of 90 days from the date of suspension; (b) for a second offense, a period of one year from the date of suspension; (c) for a third offense, and any offense thereafter, a period of two years from the date of suspension. Any multiple sentences imposed shall be served consecutively.
Arrests or citations also may occur if (a) the minor knowingly and falsely represents himself to be 21 years of age or older to any licensed dealer, distributor or other person for the purpose of procuring or having furnished to him, any liquor or malt or brewed beverages; or (b) the minor possesses a false identification card.
The Commonwealth of Pennsylvania prohibits a person under the age of 21 years from knowingly and falsely representing himself to be 21 years of age or older to any licensed dealer, distributor or other person, for the purpose of procuring or having furnished to him, any liquor or malt or brewed beverages. A person who violates this prohibition is guilty of a summary offense for a first violation and a misdemeanor of the third degree (maximum one year imprisonment and/or $2,500 fine) for any subsequent violations. Further, in addition to restriction of operating privileges, a minimum penalty of a fine of not more than $500 for subsequent violations may be imposed.
The Commonwealth of Pennsylvania prohibits a person under the age of 21 years from possessing an identification card falsely identifying that person by name, age, date of birth or photograph as being 21 years of age or older or obtaining or attempting to obtain liquor or malt or brewed beverages by using the identification card of another or by using an identification card that has not been lawfully issued to or in the name of that person who possesses the card. A person who violates this prohibition is guilty of a summary offense for a first violation and a misdemeanor of the third degree (maximum one year imprisonment and/or $2,500 fine) for any subsequent violations. Further, in addition to restriction of operating privileges, a minimum penalty of a fine of not more than $500 for the second and subsequent violations may be imposed.
IF YOU, OR A LOVED ONE, HAVE BEEN ARRESTED FOR UNDERAGE DRINKING OR RELATED OFFENSES, IT IS IMPORTANT THAT YOU ACT QUICKLY AND RETAIN EXPERIENCED LEGAL COUNSEL . . . LIKE THE ATTORNEYS AT CHARLES LAW OFFICES.
In addition to the criminal penalties, fines and license suspensions described above, a conviction of underage drinking and/or related offenses may damage one’s opportunity for obtaining future higher education, gainful employment, loans, and housing, to mention just a few of the possible negative outcomes. At the same time, the internet has made it easy for anyone — such as employers, banks, landlords, and college admissions officers — to pull up arrest records immediately. Therefore, if you have been arrested or cited for underage drinking and/or related offenses, it is very important that you retain trained and experienced legal counsel as soon as possible so that all of your federal and state constitutional and legal rights are protected, and your chances for achieving a favorable outcome are maximized.
Since 1977, the lawyers at Charles Law Offices have zealously and effectively guarded the legal rights and interests of people arrested and charged with criminal offenses, including underage drinking and related offenses.
Our record of success and victory in criminal cases speaks for itself. If you, or a loved one, are facing an underage drinking or related criminal offense, you can rely upon the nearly 40 years of legal knowledge, training, trial skills and unsurpassed experience of each of the attorneys at Charles Law Offices to zealously defend and represent your legal interests at the highest level. When your freedom and reputation are on the line, you can’t afford anything less!
Arrested for underage drinking or related offenses?


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Hypothetical example of an irrevocable trust vs a prenup agreement is reviewed. Case studies Loomis v. Loomis, Avent v. Avent, Sharma v. Routh are analyzed.
What’s better: an irrevocable trust or prenuptial agreement?
Divorce is all too common in the United States and the legal issues surrounding divorce seem to only help the lawyers involved. Many try to mitigate the cost and emotional aspect of a divorce by drafting and signing an antenuptial agreement, better known as a prenuptial agreement. Good luck getting your fiancÃ©e to sign that! The question is, do these agreements work and is there something that will work better?
Let’s start with the prenuptial agreement. Even if a prenuptial agreement holds up in court, it still is often challenged on many different fronts, causing additional expense and time [see Callahan v. Hutsell, Callahan & Buchino P.S.C. Revised Profit Sharing Plan, 14 F.3d 600 (C.A.6 (Ky.), 1993); Miller v. Weinstein, No. FA 98-0717738 S (CT 5/18/2004) (CT, 2004); Cooke v. Cooke, 647 S.E.2d 662, 185 N.C. App. 101 (N.C. App., 2007); Estate of Patterson v. C.I.R., 736 F.2d 32 (C.A.2, 1984); among others)]. The spouse who is on the losing end of the prenuptial agreement usually attempts to find a way to try to circumvent or nullify the agreement, costing everyone (except the lawyers) in the process.
Spouses attempt many strategies to circumvent a prenuptial agreement with success. A spouse can attempt to prove they had been tricked, coerced or were the victim of bad intent when they agreed. A spouse can also try to prove that the document was never signed, that their attorney was ineffective or the prenuptial agreement is outrageous (maybe it wasn’t when signed, but it is now). Spouses also attempt to prove that the agreement was signed without adequate knowledge of the other spouse’s assets. Any of these can nullify a prenuptial agreement and at the very least pull the other spouse into a prolonged divorce proceeding, and possibly push you into a settlement.
In addition to all those attacks on the prenuptial agreement, the spouse without custody of the children is subject to any and all child support the court demands. So, you may have a prenuptial agreement, but that doesn’t apply to the kids and their standard of living. You could end up paying anyway, just under the umbrella of child support. All of this does not bode well for the prenuptial agreement.
In summation, a prenuptial agreement can be challenged and nullified. A prenuptial agreement, even if not nullified, may cost you a lot of money in court costs, attorney fees and child support. A PRENUPTIAL AGREEMENT DOES NOT DO WHAT YOU WANT IT TO DO.
Future spouse X (or even current spouse) takes all of their worldly possessions and places them in an irrevocable trust prior to the marriage (or during the marriage under certain circumstances). Spouse X has a trustee manage them within the trust while they grow in the value. These assets are untouchable by spouse Y in the event of a divorce. They were never part of the marital estate. The assets in the trust aren’t even counted towards child-support; although some courts have found inventive ways to challenge that and even if the court didn’t, spouse X may make a request to the trustee to support his children or they may be beneficiaries in the trust with specific goals to reach for specific rewards. These payments to X’s children would be on X’s own terms, not the court’s.
Loomis v. Loomis, 158 S. W.3d 787 (2005).
Mrs. Loomis, at the beginning of her marriage, set up an irrevocable trust and funded it with a life insurance policy, worth $0.09 at the time. Over the years, the value of the life insurance policy grew. The Loomis’s were married for about 10 years and filed for divorce. Mr. Loomis attempted to have the current value of the life insurance ($55,567.04) included in the marital assets. The court disagreed, because the life insurance policy was owned by an irrevocable trust that was NOT set up in anticipation of a divorce. The entire value of the trust was left out of the marital assets even though this trust was set up after the marriage!
Avent v. Avent, 849 N.E.2d 98 (2006).
Mr. and Mrs. Avent decided to get married in 1978 and signed a prenuptial agreement saying that during the marriage their assets would remain separate. During their many years of marriage, they continued to keep their assets separate. After 25 years of marriage, they filed for divorce. Now in their 80s, their children managed their finances. Mrs. Avent, despite being a minimally paid school cafeteria worker, managed to save and invest a rather large amount of assets. Mrs. Avent, under direction of her daughter, put a large amount of Mrs. Avent’s assets in an irrevocable trust. Mr. Avent originally had the trust included in the marital assets, but the appeals court reversed and determined that since the assets were in an irrevocable trust, they were not marital assets.
Sharma v. Routh, 302 S.W.3d 355 (2009).
Mr. Sharma was married to Mrs. Sharma who passed away, but left two irrevocable trusts to benefit her husband and children. A few years later, Mr. Sharma and Mrs. Routh were married but only for a few months. In the divorce proceedings between Mr. Sharma and Mrs. Routh, Mrs. Routh tried to have the trusts included in the marital assets. The appeals court excluded the trusts thereby keeping Mrs. Sharma’s assets safely away from Mr. Sharma’s new temporary wife.
How does an irrevocable trust work so well? Well, basically it works so well because you don’t own the assets anymore. So, when spouse X (you) gets married, X owns nothing. When X gets a divorce, X only shares the marital assets outside the trust. The trust owns everything else. In fact, X may be the one getting assets from the marriage because X doesn’t own anything on his own. All of X’s assets prior to the marriage are safe in the trust and probably grew substantially within the trust. Spouse Y can try to challenge the trust, but chances are that the case won’t go too far, because Spouse X transferred his assets before getting married. The judge will most likely take one look at the trust, determine the assets in the trust are not marital assets and remove them from the divorce proceedings.
First, one of the most appealing advantages of an irrevocable trust over a prenuptial agreement: YOUR FIANCEE DOESN’T HAVE TO KNOW AND DOESN’T HAVE TO SIGN ANYTHING!
When there is an irrevocable trust involved, a judge will only look to see if the assets in the trust are part of the marital assets and if not, the judge will exclude them.
A prenuptial agreement can be challenged using many different strategies. A prenuptial agreement doesn’t protect against excessive child support. With an irrevocable trust, in most cases, you can pre-determine what assets go to your children, when they are given and under what circumstances.
You can settle a challenge to a prenuptial agreement to avoid a long expensive divorce. With an irrevocable trust you hold the power to give whatever you want or nothing at all. Keeping the power in your hands can encourage the other spouse to settle for whatever they can get, thereby speeding up the divorce.
A prenuptial agreement does not survive death. With an irrevocable trust, your assets will be used how you want them to be used with NO RESTRICTIONS. In other words, your spouse can’t acquire and spend your money on their new “friend” unless you allow it. Your children won’t be able to spend it away or lose it in a lawsuit. Your trust will continue to support whomever you want it to support and cut out those that you do not wish to support.


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This week, the Supreme Court will hear arguments in the most recent iteration of Trump v. Hawaii. An important part of the case is the government’s assertion of national security exceptionalism. Foreign affairs or national security “exceptionalism” refers to the argument that foreign affairs or national security questions should, as a category, receive different treatment than cases not touching on those subjects, and in general, national security exceptionalism is used in favor of broad presidential power. While some of the briefing, in particular the amicus brief of former State Department Legal Advisor and Yale Law School Dean Harold Hongju Koh, counsel of record for the amicus curiae Former National Security Officials, express concern over the use of national security exceptionalism in the case, these arguments actually underplay the depth of the problems with exceptionalism. While categorized “national security” issues as warranting exceptional deference might be rhetorically powerful and instinctively comforting, it is not logically defensible – and it poses dangerous consequences for our constitutional system.
Exceptionalists argue that in foreign affairs and national security cases, courts should apply an expansive political question doctrine, federal authority should overcome state prerogatives, and presidential powers must be broadly construed. Exceptionalism rests on a variety of functional arguments including that the courts have no expertise in national security, that issues touching on foreign affairs are of great importance and that these cases present unique needs in terms of speed and secrecy, and the like. The Supreme Court’s 1936 decision in United States v. Curtiss-Wright is archetypical in its exceptionalist rhetoric, but as we argue here, the Supreme Court has significantly rolled back its reliance on exceptionalist arguments over the past few decades.
Still, the Trump v. Hawaii litigation has surfaced a variety of exceptionalist arguments, as did the earlier rounds of travel ban litigation. Some of the exceptionalist arguments are based on national security concerns while others are based on “immigration exceptionalism,” which is derived in part from the national security and foreign relations implications of immigration decisions.
These arguments about deference and judicial incapacity are classic exceptionalism, but they do not withstand scrutiny. Courts are equally “ill-equipped” to resolve many issues of domestic law such a privacy, telecommunications, banking, health care and other complex and contentious issues. Although some deference to the President’s fact-finding is undoubtedly appropriate in both domestic and foreign affairs cases, broad and unsubstantiated claims of judicial incapacity in foreign relations matters alone is unconvincing.
The Court itself referenced a different basis for exceptionalism arguments in its June 26, 2017, per curiam opinion in Trump v. Hawaii. The Court reasoned that “[t]he interest in preserving national security is ‘an urgent objective of the highest order’” (quoting Holder v. Humanitarian Law Project) and that “…the balance tips in favor of the Government’s compelling need to provide for the Nation’s security”. The urgency or “error-cost” rationale for national security exceptionalism is just as unconvincing as the expertise rationale. Many issues of domestic policy, such as health care, gun control, the opioid crisis, education, and taxation are also “urgent” objectives with the potential to impact the safety and well-being of millions upon millions of Americans. As an argument in favor of a special deference in all national-security cases, the “urgency” or “high stakes” argument fails.
In Trump v. Hawaii, the Court should explicitly reject the government’s exceptionalist arguments. Doing so doesn’t necessarily suggest any particular outcome in this case (or in any other case). Instead, in a world without national security exceptionalism, the Court would engage in ordinary statutory interpretation and ordinary constitutional interpretation. Invocations of “national security” or sweeping functional arguments untethered to the particular context would not shield executive actions from the Constitution and the rule of law. In some cases, the government might win; in others, the government might lose. But crucially, decisions would be based on interpreting the law – and not on the indefensible position that national security and foreign affairs are categorically different from ordinary policymaking.
Two Cheers for the Non-Unitary Executive?
Current events provide an occasion for the Court to rethink its agreement with the unitary executive theory. In fact, it’s already done so.


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Google is the most-used search engine in the world. As part of its searching services, it provides details about businesses searched, and it gives users a means to read and post business reviews.
Notwithstanding Google’s content policies, some reviewers use fake names and/or post reviews that are false and defamatory. Sometimes these reviews are posted by competitors or disgruntled employees. For some businesses, these false reviews can seriously affect their hard-earned reputations and bottom line.
Taking the position that it merely hosts third-party content and is not a creator or moderator of that content, Google may be unco-operative in removing false and defamatory reviews. Businesses might discover that Google will only remove reviews where a court has found that material is illegal and/or should be removed. This is of little use to small- and medium-sized businesses that can’t afford the cost of litigation.
However, there may be some light at the end of the tunnel. The Supreme Court of South Australia (Full Court) recently affirmed Google’s liability as a secondary publisher after notification of defamatory Google search snippets and hyperlinks. If this decision is widely adopted, the company will have to reconsider its “hands-off” approach.
What, then, are some effective strategies for businesses faced with false and defamatory Google reviews?
If the reviewer’s contact information is known, it may be worthwhile to send a carefully drafted letter to the reviewer that outlines the words complained of, requests the immediate removal of the post and advises that legal proceedings could be commenced against the reviewer. The reviewer might volunteer to remove the false and defamatory review and the matter may end.
Google provides an online process where it can be alerted by businesses to false and defamatory reviews. When reporting to Google, a business or its legal counsel should demand that the review be removed immediately, and put Google on formal notice of the false and defamatory statements. In order to preserve a right to sue Google, businesses and their counsel must be careful to comply with any statutory obligations to provide a Notice of Libel. Regrettably, dealing with Google in this way has mixed results, but it is worth a try as a first measure.
By taking ownership of the Google business listing, a business may, among other things, respond directly to any false and defamatory reviews. This approach could allow other readers to gauge the authenticity of the false and defamatory reviews and encourage them to disregard it altogether.
Given the prevalence of online business reviews and the vast number of people conducting online searches using Google, it is critical that businesses encourage satisfied customers/clients to post positive reviews. The posting of positive Google reviews might altogether diminish the impact of false and defamatory reviews and also highlight their inauthenticity. At the very least, it provides readers with a more balanced picture.
If non-litigious routes fail, another option is to sue the reviewer. This involves many steps and will be expensive. If a business is successful in obtaining an Ontario judgment against a reviewer, Google will likely remove the review.
In cases where the identity of the Google reviewer is unknown, legal counsel may bring a pre-action application for a Norwich Order compelling Google to disclose the reviewer’s name, e-mail address, Internet protocol address and any other identifying information so that a defamation claim may be pursued (see York University v. Bell Canada Enterprises  O.J. No. 3689).
Once the identity of the poster is disclosed, legal counsel may succeed in persuading the reviewer to remove the reviews and settle the matter with minimal further cost. If that fails, a claim can be pursued against the reviewer.
Only deliberate acts can lead to liability as a publisher. Google will in the first instance likely be shielded from liability, since it plays only a passive instrumental role in facilitating its business review content (see Crookes v. Newton, 2011 SCC 47 and Niemela v. Malamas 2015 BCSC 1024).
This, however, will not likely be the case where Google has notice of the false and defamatory statements and fails to remove them within a reasonable time. The Supreme Court of South Australia, in Google Inc. v. Duffy  SASCFC 130, recently held that once Google received notification of false and defamatory statements, it was liable as a secondary publisher.
It is notable that the court in Duffy found that Google’s facilitation of the defamatory webpages is both substantial and proximate: “Google has republished the Ripoff Reports by abstracting sufficient material to inform the searcher of its contents, by repeating and drawing attention to the defamatory imputation, and by providing instantaneous access to it though the hyperlink.” There can be no doubt that Google, as the “host” — and through the placement of business review content in a prominent screen position on every Google business search result — facilitates the publication of Google business review content in a substantial and proximate manner.
There is a strong argument, on established principles, that Google will be liable as a publisher of its business reviews where it has received notification of the false and defamatory reviews and has failed to remove them within a reasonable amount of time (see Pritchard v. Van Nes 2016 BCSC 686). This differs greatly from the situation in the United States, where Internet service providers are immune from liability even after notice of defamatory content (see Communications Decency Act, 47 U.S.C., s. 230, and Zeran v. America Online, Inc., 129 F.3d 327, 332 (4th Cir. 1997)).
If Canadian courts follow Australia’s lead, Google, as a co-publisher after notification, will either have to defend the review as would the original poster, or remove the review in order to avoid the cost and exposure of litigation. The hope is that with time, Google will become more responsive and proactive with the voluntary removal of demonstrably fake, false and defamatory business reviews.
Howard Winkler, the founder of Winkler Dispute Resolution, is a senior Toronto mediator and litigator with more than 33 years of problem-solving experience. He specializes in defamation law and commercial litigation. Eryn Pond is a lawyer at the firm who specializes in defamation law and has a particular focus on social justice and education law.


Guest Post by Jason J. Du Mont, Microsoft IP Fellow at the Indiana University Maurer School of Law and Mark D. Janis, Robert A. Lucas Chair of Law at the Indiana University Maurer School of Law.
In Pacific Coast Marine Windshields Ltd. v. Malibu Boats, the Federal Circuit addressed a question of first impression: whether an applicant’s actions taken during prosecution of a design patent should be available for use when determining the design patent’s scope in subsequent litigation. The court’s answer was yes. While the answer may be unremarkable, the court’s unusual journey from question to answer raises broader questions about the wisdom of absorbing utility patent law’s judicially-derived doctrines into design patent law.
The applicant elected group one without traverse (which showed four circular holes and a hatch), deleted the figures not associated with this embodiment, and eventually rewrote the claim in a more conventional form, claiming “[t]he ornamental design for a marine windshield, as shown and described.” The application issued as D555,070. The applicant later filed a divisional directed to group three, which issued as D569,782, but there were apparently no further divisionals.
Malibu Boats moved for summary judgment of non-infringement based on prosecution history estoppel. The district court granted the motion and Pacific Coast appealed.
Prosecution history estoppel is a limitation on the doctrine of equivalents, so before it reached the district court’s prosecution history estoppel analysis, the Federal Circuit first had to determine whether the design patent law should recognize a doctrine of equivalents. The court concluded that for design patents, literal infringement and infringement under the doctrine of equivalents are “intertwined,” pointing to the statute (35 U.S.C. § 289, which provides a remedy when another party “applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale” (emphasis added)), and the Gorham v. White case (which holds that infringement is based on substantial similarity).
The court could have been more forthcoming as to what it means for the two infringement standards to be intertwined, but the key takeaway is clear: the design patent infringement analysis isn’t bifurcated into a literal infringement prong requiring identicality and an equivalency prong. It relies on a test of substantial similarity based on the design’s overall impression. The court’s analysis signals that there’s no longer a need to speak of a distinct “equivalents” concept in design patent law; concepts of equivalency are built into the substantial similarity test.
So Why Incorporate Prosecution History Estoppel?
Having recognized that design patent law includes no distinct doctrine of equivalents, the Federal Circuit could have declared that design patent law need not incorporate the utility patent law’s prosecution history estoppel jurisprudence. The court could have formulated a prosecution history-based limiting doctrine that was customized to connect to design patent law’s “intertwined” infringement standard. Or, the court could have even analogized to prosecution disclaimer, a simpler concept which limits literal claim scope and avoids entanglement with the presumptions and rebuttal routes of a post-Festo prosecution history estoppel doctrine. See, e.g., Trading Techs. Intern., Inc. v. Open E Cry, LLC, 728 F.3d 1309 (Fed. Cir. 2013) (discussing the distinction).
Instead, the court stated that the “principles” of prosecution history estoppel applied to design patents, and resolved those principles into a three-step test: “(1) whether there was a surrender; (2) whether it was for reasons of patentability; and (3) whether the accused design is within the scope of the surrender.” It then relied on Festo and other utility patent cases in applying its test, concluding that “no presumption of prosecution history estoppel could arise” because there wasn’t any showing that the third part of the test was met.
Whatever this presumption is, it surely isn’t the Festo presumption. Festo holds that a narrowing amendment that is substantially related to patentability triggers a presumption that the applicant surrendered all territory between the original and amended claim scope with regards to the claim limitation in question. See, e.g., Duramed Pharma. v. Paddock Labs., Inc., 644 F.3d 1376 (Fed. Cir. 2011). There isn’t any third step calling for scrutiny of the accused device. That inquiry would only be relevant to determining the scope of the estoppel—and that only comes into issue once it’s determined that the presumption of estoppel applies, and that the presumption hasn’t been rebutted.
The court’s approach is likely to lead to confusion in design patent cases about how much utility patent doctrine really has been borrowed. (It may also create some confusion in utility patent cases if it’s invoked there. Doing so would be erroneous, in our view.) This illustrates why it’s not always so easy, or desirable, to fling utility patent doctrine into design patent law. The court could have avoided all of these doctrinal convolutions by steering clear of prosecution history estoppel jurisprudence and either drawing on simpler analogies or developing a test specific to design patents.
The Federal Circuit’s application of its three-step test further illustrates why borrowing from prosecution history estoppel doctrine may have been a bad idea. In addition to diverging from the Festo presumption, the court’s rhetoric slips towards the element-by-element conceptions of equivalency and estoppel that govern in utility patent law, and away from conceptions of the design’s overall impression that design patent law mandates.
The court concluded that steps one and two of its test were met. As for step (1), the applicant had deleted drawings directed to the patently distinct two-hole and no-hole embodiments, resulting in a surrender of scope, according to the court; and, as for step (2), deletions made in response to a restriction requirement were made for purposes of patentability and thus could trigger estoppel. As the court pointed out, however, this latter point hasn’t been resolved in utility patent law.
Nevertheless, the court decided that step (3) (whether the accused design was within the scope of the surrender) wasn’t met, and that was enough for a reversal. The defendant had chosen not to argue that the accused three-hole design was within the scope of the patentee’s non-elected designs. Instead, the defendant asserted that because the patentee had elected designs having four holes (in the ‘070 patent-in-suit) and zero holes (in the ‘782 divisional), the patentee had surrendered any designs having a number of holes between zero and four. The court was not persuaded, reasoning that the notion of surrendering an entire range “does not work in the context of design patents where ranges are not claimed, but rather individual designs. Claiming different designs does not necessarily suggest that the territory between those designs is also claimed.” These are crucial observations for limiting the impact of prosecution history estoppel, especially since the court didn’t address any other way of rebutting this presumption.
But the court left unaddressed the key question about applying step (3): what is the standard for determining whether an accused design falls within the scope of the surrender? Some raw notion of “colorable imitation”? A fully elaborated substantial similarity analysis in view of the prior art as per Egyptian Goddess? Something else?
Moreover, by framing its analysis of the designs at issue by reference to the number of holes, the court encourages a mode of analysis that rests on individual design features, rather than the design’s overall impression. There’s a deep disconnect here between utility and design patent law. Equivalency (and, correspondingly, prosecution history estoppel) in utility patent law is to be applied on an element-by-element basis, but that doesn’t translate neatly to design patent law. Here, where the embodiments differed by discrete, readily-identifiable features (such as the number of holes or hatches), perhaps the presence or absence of the features dictate one’s conclusions about the design’s overall impression. We think this will not be so easy in most cases involving visually-complex designs.
The prospect that restriction and election practice will give rise to estoppel in design matters has significant practical consequences. First, the implementation of the Hague will unquestionably lead to an influx of international applications that often contain plural embodiments—either explicitly allowed or because they are filtered from registration systems. When coupled with distinctions in the determination of scope, between offices, the USPTO can expect to receive higher volumes of applications that may necessitate restrictions. Second, the Federal Circuit’s In re Owens decision, and the USPTO’s apparent turn towards a more aggressive application of the written description requirement in design cases, may force design patent applicants to submit applications including large sets of drawings that depict numerous implementations of a design concept. To the extent that these implementations are deemed patentably distinct embodiments, many applicants will find themselves facing restriction requirements.
That leads to the case’s key practical point: if courts choose to apply Pacific Marine’s estoppel rule aggressively, practitioners may need to advise their clients to expect to file more divisionals—and, consequently, face higher prosecution costs.
Does the use of the term “vent holes” suggest that the hole function as vents? Of course it does. So why is this feature, when added to an otherwise typical windshield, subject to a design patent?
This has got to be the most significant patent case of the year. But it is only January 13.
I stand corrected. This is the most significant patent case of the year that did not put me to sleep by page 4.
How is your narcolepsy coming along?
My narcolepsy is an idiosyncratic reaction to certain stimulus generated by certain legal opinions, office actions, opposing briefs. I recover by reading outlandish office actions, star wars novels, and Federal Circuit opinions applying KSR and expert testimony from Soverain v. Newegg.
the courtâ€™s rhetoric slips towards the element-by-element conceptions of equivalency and estoppel that govern in utility patent law, and away from conceptions of the designâ€™s overall impression that design patent law mandates.Given that most of the “mandates” of design patent “law” make little sense in the first place (including this “overall impression” analysis), it’s nearly impossible to introduce a “fix” without “slipping away” from at least one of those “mandates”.Here, where the embodiments differed by discrete, readily-identifiable features (such as the number of holes or hatches), perhaps the presence or absence of the features dictate oneâ€™s conclusions about the designâ€™s overall impression. The term “overall impression” doesn’t seem appropriate if one is looking at “discrete features” that are barely visible, even from a short distance. More accurately, the term doesn’t make sense in that context. Then again, it makes little or no sense in any patent context, much like the rest of design patent “law.”force design patent applicants to submit applications including large sets of drawings that depict numerous implementations of a design conceptOr applicants may decide to get out of the design patent game entirely and/or save design patents only for the very specific designs of products they are commercializing. That would be an improvement and a turn away from the future where design patents are trolled as aggressively as utility patents (but don’t tell Kappos!).he court could have avoided all of these doctrinal convolutions by … developing a test specific to design patents.Now is an excellent time to start proposing alternative tests and see what people think about them.