The U.S. Supreme Court has written the last chapter in a years-long effort by an insurance company to recover money paid to an insured from other PRPs in a CERCLA case under a subrogation theory. In denying a petition for certiorari, the high Court declined to review a decision by the Ninth Circuit Court of Appeals that limited the rights of insurance companies to recover payments made for environmental cleanup costs under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42. U.S.C. §§ 9602-9675. Chubb Custom Insurance Company v. Space Systems/Loral, et al., 710 F.3d 946 (9th Cir. 2013), cert. denied, 82 U.S.L.W. 3241 (U.S. Jan. 13, 2014) (No. 13-412). In doing so, the Court confirmed the importance of applying strict rules of construction when assessing the scope of the “tripartite” scheme of statutory remedies (cost recovery, contribution, and subrogation) that are available under CERCLA, depending on relevant factual and legal circumstances.
CERCLA is often viewed as providing just two types of compensatory remedies in environmental cleanup cases: cost recovery, pursuant to CERCLA section 107, and contribution, pursuant to CERCLA section 113. Under section 107(a)(4)(A)-(B), responsible parties can be held directly liable for environmental removal and remedial action costs incurred by the federal and state governments and Indian tribes, and for “any other necessary costs of response incurred by any other person consistent with the national contingency plan.” Under section 113(f), responsible parties also can be held liable for contribution for environmental response costs during or following a government abatement action brought pursuant to CERCLA section 106 or a direct cost recovery action brought under section 107(a).
In addition to cost recovery and contribution, CERCLA also contemplates a third type of compensatory remedy – the remedy of subrogation – that has been given relatively little attention over the years. CERCLA section 112(c) specifically establishes two separate subrogation remedies. The first allows the federal government to obtain reimbursement of monies paid to claimants out of the Hazardous Substance Trust (“Superfund,” or “Fund”) established pursuant to CERCLA section 111. The second allows “any person, including the Fund, who pays compensation pursuant to [CERCLA] to any claimant for damages or costs resulting from a release of a hazardous substance….” In both cases, the payment of money to claimants enables the paying party to acquire through subrogation certain rights the receiving party has to separately obtain reimbursement of environmental response costs on its own.
This third type of remedy – the remedy of subrogation – was the focus of the Ninth Circuit’s decision in Chubb v. Space Systems/Loral. It is what the court described there as the third component of the “tripartite remedial scheme” that Congress established “to enable the government and private parties pursue [actions for environmental response costs] in a court of law….” Chubb Custom Insurance Company, the plaintiff and appellant in the case, had argued that independent of any statutory subrogation remedies allowed under section 112, it also should be allowed as a matter of equity separate subrogation remedies as part of a direct cost recovery action brought under section 107(a). It was this specific argument (raising an issue of first impression in the federal courts) that the Ninth Circuit firmly rejected. Now with the imprimatur of the U.S. Supreme Court, the Ninth Circuit has made clear that the only compensatory remedies available under CERCLA are exclusively the ones that Congress expressly authorized by the plain language of the statute.
The concept of subrogation derives from the common law doctrine, based in equity, that gives an insurer the right to take the place of an insured to pursue recovery from third-party tortfeasors who are responsible for the insured’s loss – thus, “as the party who pays the insured’s loss, the insurer (the subrogee) ‘stands in the shoes’ of the insured (the subrogor) and succeeds to the insured’s rights and remedies.” CERCLA itself does not predicate the availability of subrogation rights on the existence of an insurance contract – indeed, the availability of subrogation to the United States (with respect to claims paid from the Superfund) has nothing in principle to do with insurance. However, because insurance is one way in which parties incurring environmental response costs can be compensated for their expense, payments by insurance companies can provide grounds for the assertion of a private party subrogation claim under CERCLA section 112(c)(2).
Chubb v. Space Systems/Loral involved a pollution legal liability (PLL) policy that a property owner (the Taube-Koret Campus for Jewish Life) had obtained from the Chubb Custom Insurance Company for the purpose of insuring against the potential cost of remediating contamination at a 47-acre site in Palo Alto, California. PLL policies generally are issued to cover insurable losses associated with unexpected environmental cleanups undertaken to address previously unknown contamination problems. In this case, the insured alleged that it had discovered and remediated previously unknown contamination that was attributable to earlier commercial and industrial operations at the site. The insured pursued an insurance claim against Chubb for the cost of the remediation and obtained a settlement of the claim from the insurance company. The insurance company then filed an action in federal court to recover the amount of the settlement from former alleged owners and operators at the site under CERCLA and ancillary provisions of state law.
The lawsuit was premised on two fundamental assertions of law. First, Chubb alleged that it was entitled to recover its settlement payment as a subrogee under CERCLA section 112(c)(2), even though Chubb’s insured had never pursued a CERCLA claim in its own right against any of the defendants or other potentially responsible parties. Second, Chubb alleged that it was entitled to recover its payment under the cost recovery provisions of CERCLA section 107(a), which it argued allowed it to pursue such a claims as a subrogee on equitable grounds. The district court rejected both of these assertions. After a series of motions challenging the sufficiency of Chubb’s initial pleadings, the district court dismissed the case with prejudice, finding that the allegations underlying Chubb’s CERCLA claims were inadequate to satisfy the plausibility standard for federal court pleadings articulated by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. It was this decision that Chubb appealed to the Ninth Circuit.
In a 2-1 panel majority decision on March 15, 2013, the Ninth Circuit sustained the district court’s dismissal in Chubb v. Space Systems/Loral.
Chubb sought reconsideration of the March 15, 2013, majority opinion by promptly filing a combined petition for panel rehearing and rehearing en banc. The petition was denied in both respects on July 3, 2013, and Chubb’s petition to the Supreme Court for issuance of a writ of certiorari followed shortly thereafter. Now with the denial of certiorari petition, the Ninth Circuit’s majority opinion is effectively established as an important nationwide precedent.
At the same time Chubb v. Space Systems/Loral was on appeal, Chartis Specialty Insurance Company (a unit of American International Group Inc.) was litigating similar issues in a separate lawsuit against the United States, involving contamination problems at a former munitions manufacturing facility in Hollister, California. In Chartis Specialty Company, et al., v. United States, Chartis alleged that it not only had reimbursed its insured for environmental response costs the policyholder independently had incurred, but also that it had paid more than $30 million directly to remediation contractors in addition to policyholder reimbursements. On that basis, Chartis brought both a cost recover claim under CERCLA section 107 “on behalf of itself and as [its insured’s] contractual subrogee” and a statutory subrogation claim under section 112(c)(2).
The detailed analysis provided by the majority opinion of CERCLA’s complex scheme of administrative and judicial remedies in Chubb v. Space Systems/Loral, makes it likely that it will continue to be cited as one of the more definitive CERCLA decisions in recent years, and not just in the insurance context. As the Supreme Court’s denial of certiorari review makes clear, there is little room any longer to argue that the statute allows recourse to recover money spent on environmental cleanups based on equitable or other legal theories that go beyond the limited “tri-paritite” scheme Congress expressly authorized in CERCLA sections 107, 112, and 113.
For more information on the Ninth Circuit’s decision in Chubb v. Space Systems/Loral, please contact Kevin Haroff in the firm’s San Francisco office.
 Attorneys with Marten Law’s San Francisco office represented one of the principal defendants in this case (Ford Motor Company) throughout each stage of the district and appellate court proceedings, including the Supreme Court’s consideration of appellant’s petition for a writ of certiorari.
 As used in this context, a “compensatory remedy” is simply one of the mechanisms allowed by CERCLA to provide reimbursement to parties for out of pocket expenditures made in connection with an environmental cleanup. This is distinct from another remedy contemplated by CERCLA – for natural resource damages (“NRD”) pursuant to CERCLA section 107(a)(4)(C) (i.e., damages for “injury to, destruction of, or loss of natural resources” as the result of a release of hazardous substances to the environment). 42 U.S.C. § 9607(a)(4)(C).
 556 U.S. —, 129 S.Ct. 1937 (2009).
 814 F.2d 1376, 1380 (9th Cir. 1987). CERCLA defines “claim” simply as “a demand in writing for a sum certain.” 42 U.S.C. § 9601(4).
 Id. See also S. Rep. No. 96-848 (July 11, 1980), CERCLA Leg. Hist. (Lexis) at *81.
 Id. at 960. While the court made clear that a successful subrogation action undersection 112(c)(2) must be predicated on a prior written demand or “claim” by an insured against potentially responsible parties, it did not specifically establish what that claim must entail as a formal matter. Federal regulations provide specific requirements governing the contents of claims against the federal Superfund under CERCLA section 112(a); however, it is unclear whether the same level of formality would be required for claims made against private parties. See Carolina Casualty Insurance Company v. Oahu Air Conditioning Service, Inc., Civ. No. 2:13-1378 WBS AC, 2014 WL 309557 (E.D.Cal. Jan. 28, 2014) (denying motion to dismiss section 112(c)(2) cause of action, where plaintiff had alleged only that it had issued a claim and demand to defendants for reimbursement of payments plaintiff incurred as a result of a hazardous waste spill).
 No. C-13-1527 EMC (3:13-cv-01527), 2013 WL 3803334 (N.D.Cal. July 19, 2013).
 2013 WL 3803334, at *13.


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Two Florida Supreme Court decisions in as many weeks have changed the litigation landscape for thousands of Engle progeny plaintiffs, rendering it easier to prove class membership and recover millions in punitive damages against the nation’s tobacco companies.
On March 24, the state’s high court ruled Engle class plaintiffs were not required to know that smoking caused their diseases before a cutoff date in the class action. R.J. Reynolds Tobacco Co. v. Ciccone, SC13-2415. A week earlier, the Court gave the green light for class members to seek punitive damages under strict liability or negligence claims. Soffer v. R.J. Reynolds Tobacco Co., SC13-139.
The decisions affect thousands of so-called Engle progeny plaintiffs, whose claims stem from Engle v. Liggett Group, a 1994 class action claim involving Florida smokers. A jury in that case found tobacco companies knowingly produced dangerous, addictive cigarettes and hid those dangers from the public. In 2006, the Florida Supreme Court decertified the class on appeal, but its decision allows individual plaintiffs to rely on the jury’s liability conclusions in the original trial if they can prove the smokers at the center of their cases suffered from nicotine addiction that caused a smoking-related disease before November 21, 1996. However, the opinion’s language raised questions, and created appellate court conflicts, on issues ranging from class membership eligibility to damages.
Before the high court’s decision this month, Florida’s district courts of appeal were split as to whether plaintiffs could seek punitive damages on negligence and strict liability claims. That split limited punitive claims to the intentional torts of conspiracy and fraud for many plaintiffs.
The appellate level dispute centered on whether Engle progeny plaintiffs were bound by the procedural posture of the original Engle class members who filed suit in 1994. The trial court in that original class action had found the procedural posture of the case barred class representatives from amending their complaint to seek punitive damages on negligence and strict liability claims.
The First District Court of Appeal relied on that decision in finding individual Engle progeny plaintiffs bound by the posture of the original class representatives and therefore also barred from claiming punitives on negligence and strict liability theories. Soffer v. R.J. Reynolds, 106 So. 3d 456 (Fla 1st DCA 2012). The Third and Fourth District Courts of Appeal ultimately adopted the reasoning of the First District’s decision, while the Second District reached the opposite conclusion. Philip Morris USA Inc. v. Hallgren, 124 So. 3d 350 (Fla. 2d DCA 2013).
While Engle progeny plaintiffs had previously been entitled to recover punitives on fraud and conspiracy theories, those claims require they prove the individual smoker relied on the underlying fraud and conspiracy. By contrast, plaintiffs do not have to show reliance to recover on negligence and strict liability theories. “Juries have been struggling with the reliance requirement for intentional torts,” Shamp said, noting the reliance element could be exceptionally difficult to prove if the smoker at the heart of an Engle case died before trial. Shamp, who won an $11 million Engle verdict last August, said the Soffer decision will likely pave the way for more punitive verdicts across the state.
While Soffer opens the door for more punitive awards, the high court’s holding in Ciccone lowers the bar to prove class membership, a prerequisite to recover any award.
In 2012, the First District Court of Appeal held a disease manifested itself only when a plaintiff knew or reasonably should have known of the causal connection between tobacco and the plaintiff’s illness. Castleman v. R.J. Reynolds Tobacco Co., 97 So. 3d 875 (Fla. 1st DCA 2012). A year later, the Fourth Circuit reached a contrary conclusion, finding plaintiffs were not required to know of a link between their disease and tobacco use before the cutoff date. R.J. Reynolds Tobacco Co. v. Ciccone, 123 So. 3d 604, 615 (Fla. 4th DCA 2013).
In a 5-2 decision written by Justice Pariente, the Court sided with the Fourth District’s interpretation and held manifestation did not require the smoker connect their disease to tobacco use before the cutoff date. In reaching its decision, the Court looked back to its original Engle holding and its discussion of one of the original action’s class representatives, Della Vecchia. “[N]owhere did this Court state that, to establish Engle class membership, Della Vecchia was required to have knowledge that her symptoms were caused by smoking,” the Court noted. “Indeed, there was no indication of when Della Vecchia even knew of her symptoms, and this Court required nothing more than medical records indicating that 'she had been suffering from a tobacco-related disease.'"
The impact of the Soffer and Ciccone holdings spread quickly. Last Thursday, Fourth Circuit Court Judge Virginia Norton declared a mistrial in an Engle suit against R.J. Reynolds in the wake of the high court’s decisions.
Representatives for R.J. Reynolds and Philip Morris could not immediately be reached for comment.
Watch the trials underlying this month's Florida Supreme Court Engle decisions.
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Sarah LANDISE, Appellant, v. Thomas MAURO, Appellee.
Before STEADMAN, RUIZ, Associate Judges, and KING, Senior Judge. * John F. Karl, Jr., Washington, DC, for appellant. Ferris Bond, Washington, DC, for appellee.
Appellant, Sarah Landise, sued appellee, Thomas Mauro, alleging partnership in a law firm, and seeking damages for breach of an oral partnership agreement, conversion of partnership funds, breach of fiduciary duty and an accounting. Mauro's principal defense was that Landise's unauthorized practice of law barred her claim. The jury found that Landise and Mauro had not entered into an oral partnership agreement and that Landise had engaged in the unauthorized practice of law in the District of Columbia.
In June 1986, after Landise completed law school, Thomas Mauro, then employed with the law firm of Malley, Scott, Koffman & Heston (“Malley, Scott”) hired her to work for the firm as a law clerk. When Landise was admitted to the Virginia Bar, she was hired by Malley, Scott as an attorney in the firm's District of Columbia office.2 In early 1987, Mauro was terminated by the firm. Although Malley, Scott offered to continue to employ Landise, she chose to leave with Mauro. Landise was receiving a salary of $25,000 per year, had two children and owed a large student debt at the time she left Malley, Scott.
It is undisputed that Landise and Mauro started a firm sometime in 1987 named “Mauro and Landise.” Letterhead stationery and a sign on the door identified the firm by that name.3 Both Mauro and Landise signed the lease for the firm's sole office, which was located in the District of Columbia. Beyond these basic facts, the parties offered differing accounts of their relationship.
According to Landise, in January 1987, Mauro induced her to leave Malley, Scott by telling her that he did not think Malley, Scott would be around for long. She claims that Mauro proposed that she join him as a partner to share equally in all profits and losses of the cases that were handled by either her or Mauro. Landise testified that after agreeing to become Mauro's partner, she would periodically bring up the issue of creating a written partnership agreement, but that Mauro would always dismiss the issue. She dropped the issue once the first tax return was filed, as a partnership. In any event, their understanding was never reduced to writing.
Landise testified that about half of the law firm's practice was personal injury work, including several cases in Virginia. She also testified that fees from the Virginia cases constituted approximately half of the firm's revenue received through March 15, 1989. Income from all cases was deposited into the firm's operating account and the parties paid themselves “draws.” Landise also testified that while Mauro was chiefly responsible for attracting clients to the firm, she performed 65% to 70% of the firm's written pre-trial work.
The trial court refused Landise's request to bifurcate the issue of partnership from the issue of unauthorized practice. Instead, the jury was instructed and given a special verdict form consisting of six questions, the first of which concerned the existence of a partnership and the last of which addressed the issue of unauthorized practice.10 The jury found that Landise and Mauro did not enter into an oral partnership contract and that Landise had engaged in the unauthorized practice of law in the District of Columbia. Landise moved for a new trial and for judgment as a matter of law on the issue of whether Landise had engaged in the unauthorized practice of law, both of which were denied by the trial court.
Landise argues that the judge's instructions concerning the unauthorized practice of law issue may have distorted the jury's consideration on the partnership issue, thereby seriously prejudicing her. She contends that the case must be retried because there is a possibility that the jury may have rested its verdict on an impermissible basis, and this court cannot determine the basis for the jury's finding that there was no partnership. See District of Columbia v. White, 442 A.2d 159, 165 (D.C.1982) (holding that where several theories of liability, one impermissible, may account for the verdict, if court cannot determine upon which theory jury relied, case must be remanded for retrial). But see Nimetz v. Cappadona, 596 A.2d 603, 607-08 (D.C.1991) (noting that White rule cannot be invoked by a defendant who fails to preserve issue by requesting appropriate jury instruction). Specifically, Landise contends that based on the jury instructions and jury verdict form, it is impossible to say whether the jury found there was no partnership because of a failure of evidence of formation of a contract or because it considered that no partnership contract could be lawful or enforceable because appellant had engaged in the unauthorized practice of law in the District of Columbia.
As a procedural matter, we perceive no reversible error, standing alone, in the format of the trial court's instructions and its inclusion of question six on the jury verdict form concerning Landise's unauthorized practice of law.11 As she disagreed with the trial court on the relevance of her alleged unauthorized practice to her partnership claim,12 Landise properly requested a special verdict in order to preserve for appeal the issue of the availability of an unauthorized practice defense. See Robinson v. Washington Internal Medicine Assoc., 647 A.2d 1140, 1143 (D.C.1994) (citing Nimetz v. Cappadona, supra, 596 A.2d at 607-08).
We do disagree, however, with the trial court's legal conclusion necessitating this procedure, that if Landise had engaged in unauthorized practice in the District of Columbia she could not prevail in her claim against Mauro. The District of Columbia Uniform Partnership Act defines a partnership as “an association of two or more persons to carry on as co-owners of a business for profit.” D.C.Code § 41-105(a). Proof of the existence of a partnership depends on evidence that the purported partners intended “to associate together to carry on as co-owners for profit.” Beckman v. Farmer, supra note 1, 579 A.2d at 627. These principles of partnership law apply to lawyers creating associations to form law firms. Lawyers, of course, are also subject to the rules governing their professional conduct promulgated by this court. See D.C.Code § 11-2501 (1995); D.C. Bar R. X (1998). Under those rules, lawyers admitted to practice in the District of Columbia are permitted to enter into partnerships with lawyers from other jurisdictions. See Code of Professional Responsibility DR 2-102(D); Rule of Professional Conduct 7.5(b). There is no prohibition on an attorney sharing fees in partnership with an attorney licensed to practice in another state, see charles W. Wolfram, modern Legal Ethics, 867 n. 98 (1986) (citing Dietrich Corp. v. King Resources Co., 596 F.2d 422, 426 (10th Cir.1979)), nor indeed, since 1991 in our jurisdiction, with nonlawyers under certain specific circumstances, see Rules of Professional Conduct 5.4(a)(4) and (b).13 Thus, the fact that Landise was not admitted to the D.C. Bar did not in and of itself make her or Mauro incapable of entering into partnership with each other under governing principles of partnership law, or render their agreement to share fees unethical under our rules-assuming such an agreement were found to exist.
A somewhat different question is whether Landise's unauthorized practice of law is available to Mauro as a defense to vitiate a partnership agreement to which he was a party. We hold that in the context of a claim for breach of a law partnership agreement inter sese, brought by a party claiming to be a partner, the facts that the claimant, because she was not admitted to practice in the District of Columbia, may have engaged in the unauthorized practice of law in this jurisdiction does not bar the claim against a knowing, willing purported partner or firm.14 There is no public interest at stake in such a private dispute that would be sufficiently furthered by refusing to enforce the claim. See J.H. Marshall & Assoc., Inc. v. Burleson, 313 A.2d 587, 599 (D.C.1973) (citing code of Professional Responsibility Canon 3, Note 1 (“The condemnation of the unauthorized practice of law is designed to protect the public from legal services by persons unskilled in the law.”)). To render the contract unenforceable in such a situation would frustrate the expectations of a party and deny that party the fruit of her labors. See Metzler v. Edwards, 53 A.2d 42, 44-45 (D.C.1947); restatement (Second) of Contracts § 178 (1981); 15 cf. Cevern v. Ferbish, 666 A.2d 17, 21 (D.C.1995); id. at 26 (Ruiz, J., dissenting). Finally, while we recognize that Landise's unauthorized practice of law violates our own court rule, D.C.App. R. 49, we cannot lose sight of the fact that Landise's unauthorized practice directly implicated Mauro's own violation of our professional rules as well.16 Although some might propose that we simply declare a “pox on both their houses,” to do so in this context would be overly simplistic as it would bestow a windfall, at the expense of another and without significant public benefit, on a party who participated in and benefitted from the unauthorized practice.
In this case, Landise's unauthorized practice was only marginally relevant as evidence of Mauro's subjective intent: whether Mauro would have wanted to enter into a partnership with Landise in a law firm operating in the District of Columbia when she was not admitted to practice here. But see Beckman, supra, 579 A.2d at 627 (“[T]he question [of partnership] ultimately is objective: did the parties intend to do the acts that in law constitute partnership?”) (internal quotations and citations omitted). Whatever inference favorable to Mauro's subjective intent not to enter into a partnership with Landise could have been drawn from a determination that Landise's practice in the firm would have been unauthorized was severely undermined, moreover, by undisputed evidence that the two of them practiced under the law firm name, “Mauro and Landise.” To hold Landise out as his partner-as Mauro clearly did in the firm's name and in other documentation presented to an insurer, bank and local and federal taxing authorities-was powerful evidence of a partnership between the two. See id.
In this context, the jury's verdict finding both that there was no partnership and that Landise had engaged in the unauthorized practice of law raises a serious question of how the jury came to its decision on the partnership question. Specifically, even though the trial court properly submitted separate questions on the two issues, we cannot confidently conclude that the jury found, after weighing the evidence, that there was no partnership because Landise failed to meet her burden of proving the existence of a partnership contract, or whether the jury concluded that there could be no partnership because Landise engaged in unauthorized practice in the District of Columbia.17 The latter would be an impermissible verdict because it would be based on an incorrect understanding of the applicable legal principles. On this record, there is evidence to support Landise's contentions that the jury may have been confused about the minor import that her unauthorized practice of law should have had in the jury's evaluation of the central issue in the case, whether there was a partnership between Landise and Mauro, and that the jury's verdict therefore may have rested on an impermissible basis. See White, supra, 442 A.2d at 165.
A related issue on appeal is Landise's claim that the trial court erred in denying her motion for a directed verdict on the unauthorized practice of law issue. A directed verdict is proper when, reviewing the evidence in the light most favorable to the nonmovant, the jury has “no evidentiary foundation on which a reasonable trier of fact could base a reliable verdict․” Jackson v. Condor Management Group, Inc., 587 A.2d 222, 224 (D.C.1991). We review motions for judgment as a matter of law de novo. See WMATA v. Jeanty, 718 A.2d 172, 174-75 (D.C.1998). Landise argues that a directed verdict was required in this case because Mauro failed to present the evidentiary foundation for a jury finding that Landise engaged in the unauthorized practice of law in the District of Columbia.
We now turn to the evidentiary ruling made in the course of the trial that we determine was erroneous and, when considered against the background we have set out in previous sections, requires a new trial.
At trial Landise sought to introduce evidence that during a meeting held on February 26, 1989, the day before Landise was to join the federal government and before the Tuerr trial judgment was finally affirmed on appeal in 1992, Mauro proposed to change their respective shares in the Tuerr fee so that Landise would receive a reduced share, one third of any eventual fee in the Tuerr case, and divide equally the other assets and liabilities of the firm. The trial court excluded Mauro's proposal on the ground that it constituted a settlement offer.20 The trial court allowed Landise to testify only to the fact that the two of them met to discuss the winding up of the law firm and that they had discussions about how the proceeds of the firm would be divided, but did not allow the specific terms of Mauro's proposal to be presented to the jury. The trial court stated that the actual discussions between Landise and Mauro would be “only marginally probative” and that Mauro would have been prejudiced by testimony of the terms of his offer to settle a dispute. On appeal, Landise argues that the substance of Mauro's proposal was relevant and admissible to show that Mauro acknowledged the existence of a partnership between them and that its exclusion caused her substantial prejudice.
The law of evidence generally excludes offers to compromise a disputed claim of liability. See Beckman v. Farmer, supra, 579 A.2d at 646; john W. Strong, McCormick on Evidence § 266, at 194 (4th ed.1992). This principle, which reflects skepticism about the relevance of such offers to the issue of liability and is intended to promote out-of-court settlements, is not applicable when there is no actual dispute. See Crain v. Allison, 443 A.2d 558, 565 (D.C.1982). In this case, the trial court declined to admit the evidence because it considered that it constituted an offer of settlement, and that Mauro's statement would add very little to Landise's “overwhelming evidence” on the partnership issue.
The trial court's exclusion of Mauro's proposal as coming within the scope of inadmissible offers to compromise was an abuse of discretion. First, the record does not support a finding that at the time of the February 26, 1989 meeting, there was a dispute between the parties. To the contrary, indications are that the relationship between the parties at that time was still amicable. The meeting occurred the day before Landise began to work for the federal government and was for the purpose of dividing the firm's assets and liabilities as a result of Landise's departure from the firm. Subsequent to the meeting, Landise prepared a draft post-trial brief on the Tuerr case, filed by Mauro on March 16, 1989, which supports the view that Mauro and Landise were still working together. Although there was some evidence that Landise considered taking legal action against Mauro soon after, this lawsuit was not filed until nearly two years later, after the Tuerr judgment, which constituted the firm's principal asset, was affirmed on appeal. In light of the firm's otherwise meager fees, there would have been little reason for Landise to assert her partnership claim against Mauro before that time. “[O]nly offers of compromise made after a controversy ha[s] arisen fall within the exclusionary rule and, here, [Mauro's] offer was made before [Landise] brought the suits ․” Joyner v. Jonathan Woodner Co., 479 A.2d 308, 312 n. 5 (D.C.1984).
Second, we perceive no basis for the trial court's rationale that because Landise's evidence of a partnership with Mauro was “overwhelming,” evidence of Mauro's proposal when their relationship came to an end was of marginal significance to Landise's presentation of her partnership claim to the jury. Although the trial court undoubtedly has discretion to exclude cumulative evidence, presentation of the terms of Mauro's proposal was not merely cumulative, but served to respond to a particular component of Mauro's defense. During trial Mauro claimed that notwithstanding objective evidence of partnership,21 he never intended to form a partnership with Landise, whom he described as a neophyte to the profession. Mauro's proposal, therefore, evidencing as it did his understanding at the time that their existing relationship entitled Landise to a one-half share in the firm's fees, as demonstrated by his proposal to reduce her portion of the Tuerr fee but otherwise equally divide the firm's fees and liabilities with Landise, was highly relevant and probative of the fact that he had intended to go into partnership with Landise notwithstanding his contrary protestations at trial. See D.C.Code § 41-106(4) (1990) (“The receipt by a person of a share of the profits of a business is prima facie evidence that [s]he is a partner in the business”); see Beckman, supra, 579 A.2d at 628. Exclusion of the substance of the terms of Mauro's offer was correspondingly highly prejudicial to Landise.
1. We reject Landise's claim that the trial court erred in holding itself bound by the jury verdict that there was no partnership when it denied Landise's request for an accounting. If there was no partnership, there was no need to address the claim for an accounting. See Beckman v. Farmer, 579 A.2d 618, 632 n. 19 (D.C.1990); id. at 658-59 (Steadman, J., concurring).We also reject Landise's claim that the trial court abused its discretion when it allowed Mauro to present Landise's unauthorized practice as a defense to her claim of partnership because, although Mauro had claimed that the contract was illegal in his answer, Mauro had not included the issue in his pretrial statement and only raised it in a motion to dismiss filed shortly before trial; and when it denied her motion to amend the complaint to assert a claim of quantum meruit, asserted following the close of the evidence. With respect to Mauro's unauthorized practice of law defense, the trial court noted that Landise had been put on notice by the answer; with respect to Landise's request to add a quantum meruit claim, the judge noted that Landise had refused Mauro's settlement overtures and discovery on the issue. See Super. Ct. Civ. R. 15(b) (1998); Emerine v. Yancey, 680 A.2d 1380, 1385 (D.C.1996).
2. Landise was admitted to practice in Virginia, but was not admitted to the District of Columbia Bar.
3. Initially, the firm's stationery did not indicate that Landise was admitted to practice only in Virginia. The letterhead was later corrected to add that information, in conformance with DR 2-102(D), which provided:A partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings makes clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions․Such a notation, however, does not insulate a person who is in fact engaged in the unauthorized practice of law in the District of Columbia as set forth in D.C.App. R. 49.
4. According to the law firm's tax returns for the first year of operation, 1987, the firm's profit was $2,799.00, after Landise drew $9,025.00 and Mauro drew $9,553.30. Operations during 1988 yielded a similarly bleak financial situation. In Otis Elevator Co. v. Tuerr, 616 A.2d 1254 (D.C.1992), this court affirmed an $800,000 judgment in favor of Tuerr, who had been represented by Mauro and Landise. Following affirmance, the firm received $390,917.32 in contingent fees from the Tuerr case. The fees, which were received after Landise left the firm, were for work done while Landise was still with Mauro and Landise.
5. The jury was given copies of Landise's handwritten draft of the post-judgment brief, the brief actually filed in the trial court and the brief on appeal.
6. However, there was also testimony from a retired lawyer, Thomas Rothwell, who stated that he was paid $50,000 by Mauro to prepare the Tuerr appellate brief.
7. There was also testimony from Ann Bissonnette, who was first employed as a “gofer” for Mauro and Landise during the period March-May 1987, and who later, from August 1987-February 1988, was hired as a full-time office manager. Bissonnette testified that Mauro had the final say on administrative matters, did all the hiring and reviewed and edited all the work that left the office. She also testified that Landise worked an 8:30 to 5:30 day, and that she saw Landise take work home only once or twice.
9. The argument that any partnership between Mauro and Landise would be unenforceable because it would be an “illegal” contract was first made in Mauro's answer to the complaint. See supra, note 1. In a motion to dismiss filed just before trial, Mauro claimed that even assuming the existence of a partnership agreement, it would be illegal and unenforceable due to Landise's “conceded” unauthorized practice of law, e.g., her representation of clients in the District of Columbia without seeking to appear pro hac vice. Landise opposed the motion then, as she does in this appeal, on the ground that her unauthorized practice is legally irrelevant to the issue of partnership. The trial court denied the motion to dismiss, but agreed that Mauro could use Landise's unauthorized practice as a “shield” in defense of her partnership claim and joined the issue of unauthorized practice for trial.
11. Although Landise complains on appeal that the instructions given by the trial court provided no guidance to the jury as to how Landise's unauthorized practice should have been viewed in relation to the question whether a partnership existed, she requested no such guidance at trial.
12. See supra note 9.
13. Even prior to 1991, under the code of Professional Responsibility a lawyer admitted in one state was not considered a nonlawyer for purposes of dividing fees with a lawyer admitted in a different state. See ABA Comm. on Professional Ethics Formal Op. 316 (1967).
14. Different principles would apply if the claim were brought by a third party or a client who had been injured as a result of unauthorized practice or a lawyer's misconduct, or where the court is acting to prohibit unauthorized practice before it. Compare Fletcher v. Krise, 73 App.D.C. 266, 267, 120 F.2d 809, 810 (1941) (lawyer's disbarment resulting in the inability to render professional services to client is a legal defense for client in lawyer's suit to enforce contingent fee agreement), and J.H. Marshall & Assoc., supra, 313 A.2d at 592 (dismissing collection agency's suit to collect assigned debt, which was held to constitute unauthorized practice before the court), with Burleson v. United Title Escrow Co., 484 A.2d 535, 536-37 & n. 3 (D.C.1983) (holding that defendant has no standing to assert defense of unauthorized practice where defendant was not injured thereby and rejecting unauthorized practice as an actionable tort).
15. The RESTATEMENT states a general rule regarding the unenforceability of contracts on grounds of public policy:(1) A promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms.(2) In weighing the interest in the enforcement of a term, account is taken of(a) the parties' justified expectations,(b) any forfeiture that would result if enforcement were denied, and(c) any special public interest in the enforcement of the particular term.(3) In weighing a public policy against enforcement of a term, account is taken of(a) the strength of that policy as manifested by legislation or judicial decisions,(b) the likelihood that a refusal to enforce the term will further that policy,(c) the seriousness of any misconduct involved and the extent to which it was deliberate, and(d) the directness of the connection between that misconduct and the term.
16. For Mauro to include Landise in the firm's name in the absence of a partnership between them would have been a clear violation of DR 2-101(A), B(6) and 2-102 of the Code of Professional Responsibility, and Rule of Professional Conduct 7.5(d) and comment 2, by Mauro as well as Landise. See In re Karr, 722 A.2d 16, 25-26 (D.C.1998); see also J.H. Marshall & Assoc., Inc., supra, 313 A.2d at 592 (“Canon 3 of the Code of Professional Responsibility ․ places upon all members of the bar a responsibility to assist in preventing the unauthorized practice of law.”) (internal quotations omitted); Rule of Professional Conduct 5.5(b).
17. That the jury may have been confused is supported by the face of its completed verdict from. The trial judge instructed that if the jury answered the first question, concerning the existence of a partnership, in the negative, “that will conclude deliberations in this case.” See note 10. However, after answering the first question in the negative, the jury nonetheless proceeded to answer the sixth question, concerning unauthorized practice of law, in the affirmative.
18. In its instruction concerning the special interrogatory on unauthorized practice of law, the trial court emphasized that the burden of proof was on Mauro. On the substantive issue of what constitutes unauthorized legal practice, the trial court stated:No person shall regularly engage in the practice of law in the District of Columbia, or in any manner hold himself or herself out as authorized or qualified to practice law in the District of Columbia unless that person is enrolled as an active member of the Bar of the District of Columbia.No person shall in the District of Columbia advise or counsel any person on matters affecting legal rights, or practice or appear as an attorney at law for a person, or hold out to the public as being entitled to practice, or use or advertise the title of “lawyer,” “attorney,” or “counselor,” or any equivalent title in such manner as to convey the impression that the person is entitled to practice law, or in any manner it is that such person either alone or together with any other person or persons maintains an office for the practice of law in the District Of Columbia without being an enrolled, active member of the bar.The judge further explained that “the practice of law does not include things such as the drafting of pleadings that are signed by another lawyer who is a member of the bar ․ [or] doing legal research ․ [or] conferring with witnesses.” These instructions were taken almost verbatim from the then-existing Rule 49(b)(1) and (2). That rule has subsequently been revised and expanded.
19. Landise also argues that an expert witness was necessary to assist the jury's understanding of the complexities of a law partnership and establish a standard of behavior. See O'Neil v. Bergan, 452 A.2d 337, 341-42 (D.C.1982) (plaintiff who fails to call expert witness fails to make out prima facie case of legal malpractice). We do not question that generally speaking an expert witness is helpful on the issue of what constitutes engaging in the practice of law. However, even without expert testimony to guide the jury's understanding of what constitutes the practice of law for purposes of Rule 49, a lay juror could easily find, applying the trial court's instructions, that Landise held herself out as licensed in the District of Columbia, by including her name in a District of Columbia firm's letterhead without disclaimer.
20. Mauro does not contend that Landise's testimony would have been excludible as hearsay, presumably because it would be an admission of a party opponent. See Proulx v. Police & Firemen's Ret. & Relief Bd., 430 A.2d 34, 36 (D.C.1981).
21. As discussed earlier, Mauro gave various explanations why the documentary evidence did not reflect the true nature of his affiliation with Landise.
22. We also note that Landise filed a motion for new trial, which was denied. “[A] new trial may be granted ․ where the verdict is against the weight of the evidence, ․ the trial was unfair, or there was a prejudicial legal error in the proceedings.” Bell v. Westinghouse Elec. Corp., 483 A.2d 324, 327 (D.C.1984) (citation omitted); see also WMATA v. Davis, 606 A.2d 165, 168 n. 4 (D.C.1992). In light of our conclusion that the trial court committed reversible error, we need not reach Landise's claim that denial of her new trial motion was an abuse of discretion.


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Present: [Note Star] BROWN, KAPLAN, & KASS, JJ.
CIVIL ACTION commenced in the Superior Court Department on November 21, 1984.
Robert W. Gardner, Jr. (Bruce N. Finkle with him) for the defendants.
Kenneth F. Rosenberg for the plaintiff.
KAPLAN, J. Commerce Insurance Company (Commerce) is the plaintiff in this declaratory action. It seeks an interpretation of a provision of the simplified or plain-talk [Note 2] Standard Massachusetts Automobile Insurance Policy (2d ed. 1979) as applied to the situation described in a statement of agreed facts. The facts may be summarized as follows.
"Under this Part, we will pay damages to people injured or killed in accidents if you or a household member is legally responsible for the accident . . . .
"If someone covered under this Part is using an auto he or she does not own at the time of the accident, the owner's auto insurance must pay its limits before we pay. Then, we will pay, up to the limits shown on your Coverage Selections page for any damages not covered by that insurance . . . ."
It is agreed that Benjamin was a "household member," [Note 5] and the defendants say that, as "owner's auto insurance" on the Monza was absent and amounted to zero, Commerce was obliged to pay "up to the limits" of Charles's policy. To the contrary, Commerce says any coverage by Charles's policy was dependent on there being "owner's auto insurance" on the Monza, and here that insurance was absent.
"Unlike the Compulsory Part, this Part does provide coverage . . . for accidents occurring outside Massachusetts [meaning elsewhere in the United States or in Canada]."
". . . this Part does not pay for the benefit of anyone using an auto without the consent of the owner."
2. We believe the foregoing interpretation of the Part 5 provisions is determinative. But if not, then we suggest the most that can be said for the insurer is that the pertinent language is ambiguous. What result should follow?
The judgment appealed from is reversed, and judgment will be entered declaring the rights of the parties in accordance with the foregoing opinion.
[Note 1] Elizabeth Koch and Benjamin Gray.
[Note Star] The case was reargued on April 27, 1988, and the panel thereafter amended its opinion. The following is the opinion as so amended.
[Note 2] See G. L. c. 175, Section 2B (insurance policies to be written in easily understandable form). See Alperin & Chase, Consumer Rights and Remedies Section 363 (1979).
[Note 3] Victor's mother, the defendant Elizabeth Koch, claimed consequential damages for loss of companionship and society and for emotional distress.
[Note 5] Defined by the policy as "anyone living in your household who is related to you by blood, marriage or adoption."
[Note 6] In these cases, the primary insurers became insolvent. For a case where the insurance was not collectible because absent, see Mid-Century Ins. Exch. v. State Farm Mut. Auto Ins. Co., 98 Ill. App. 3d 493, 494-496 (1981).
[Note 7] To support its claimed "condition precedent" interpretation of Part 5, Commerce cites two cases which are exercises in the application of owned-vehicle provisions (see the provision commencing with "we will not pay," quoted in our text above): Thomas v. Hartford Acc. & Indemn. Co., 398 Mass. 782 (1986); Zamani v. Auto Club Ins. Assn., 124 Mich. App. 29 (1983). The third cited case is also wide of the mark of interpreting the core provision of Part 5: Nasis v. American Motorists Ins. Co., 353 Mass. 219 (1967).
Also lacking support for Commerce's interpretation are Cardin v. Royal Ins. Co. of Am., 394 Mass. 450, 452 (1985), and Johnson v. Hanover Ins. Co., 400 Mass. 259, 265 (1987), cited by Commerce. These cases refer to the separate and distinct provisions for uninsured-or-underinsured coverage and do not speak at all to the present problem.
[Note 8] As to the requirement of official approval of policies, see G. L. c. 175, Sections 2B, 113A. A "standard" policy in this context appears to differ from an ordinary approved policy only in that it is the only form approved in a particular field.
[Note 9] This may lead to the thought that the courts in such cases should consider how far the insurers in fact took part in influencing the policy form. Cf. Lumbermens Mut. Cas. Co. v. DeCenzo, 18 Mass. App. Ct. 973, 975 (1984), S.C., 396 Mass. 692 (1986).
[Note 10] The quoted words are taken from Save-Mor Supermarkets, Inc., supra at 226, which in turn quotes from earlier authority. Such statements commonly appear where the rule contra proferentem is not applied. See, e.g., Johnson, supra at 266.
[Note 11] "Reasonable Expectations." Although unnecessary to decision herein, we mention the emergent doctrine, as summarized by R. Keeton, Insurance Law 351 (1971): "The objectively reasonable expections of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations." Our courts have been receptive to the proposition, although its shape has not been finally settled. See Bond Bros. v. Robinson, 393 Mass. 546, 551 (1984); Home Indem. Ins. Co. v. Merchants Distribs., Inc., 396 Mass. 103, 107 (1985).
In Moore, supra at 1011, the court said in finding the doctrine inapplicable to the particular situation, "We have no evidence of any expectations of the insured . . . nor do we have any indication whether any expectations he may have had were reasonable." Presumably the court did not mean evidence in the sense of legal proof. If the concept is to have practical consequences, it must operate on the basis of reasonable inference from the total situation. In the present case we can say with confidence that a policyholder purchasing the optional Part 5 would expect, in reason, that his coverage would extend, generally, where he (or another insured) was using a borrowed car. This is the key to expectation. He would think it unreasonable, an unfair deal, to find that his insurer could renounce all liability on its own policy because of the adventitious circumstance that owner's insurance on the borrowed car was lacking.

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Therefore, the friends must consider the issue of personal liability for debts if they go into partnership. This is also tied into the issue of responsibility for decisions; whilst in a partnership every partner is deemed both able to act for the firm in the course of its business, under Section 5 of the Partnership Act 1890, as well as liable for all its debts, this also means that the act or decision of any one member of a partnership will bind the partnership as well as all other partners. There are benefits of partnerships; for example, it is deemed easier to extract profits than in other business structures, and, in theory at least, the management structure is considered more flexible (Vinter and Price, 2006:66.) Additionally, a partnership is not liable under law to register its accounts, or its other interests (Vinter and Price, 2006:66), which means that there is less scrutiny from the law. Another benefit of a partnership is that it can be easily dissolved, simply by providing the other partners with notice, and so it is more casual and potentially more convenient. However, this can also be a disadvantage if, for example, there exists a lack of trust between the partners regarding one partner failing to carry out his duties and bear his share of the burden of the business.
The friends could also consider entering into a Limited Liability Partnership (LLP) under the Limited Liability Partnerships Act 2000. The LLP is considered under English law to be a corporate body and has a separate legal personality, under Section 12 of the 2000 Act, and it has unlimited capacity, according to Section 1. It is not subject to the law relating to partnerships, according to Section 1(5) of the Act, and is treated as a company, particularly where insolvency law is concerned, according to Regulations 3 to 5 of the Limited Liability Partnership Regulations 2001. This means that the friends will hold less responsibility for debts than would be the case if they formed a partnership. The LLP has a number of advantages to a partnership, as although under Section 6 of the 2000 Act every member will be considered an agent of the LLP, they will not bear personal liability for debts, because LLPs are incorporated and therefore have separated legal personality, under Section 1(2).
Unlike in partnerships, which do not have separate legal personality under English law (Stevenson and Sons: 2008), the friends would not have to be concerned about being personally liable for debts or for the decisions of other members. Furthermore, in an LLP the friends will be able to apportion beforehand their responsibility for profits and losses. One of the more cumbersome points of LLPs in comparison to partnerships ifs that they are subject to greater scrutiny and must observe more points of law, including in establishment, although under S.2 (1) (a) of the 2000 Act an LLP may be incorporated by two or more persons together with any other person who agrees to become a member and they will be subject to all provisions of the 2000 Act, although according to Section 5(1) they can create their own rules concerning the relationship between themselves. One of the negative points of the LLP is that under Section 6(1) of the 2000 Act, a member who has no authority to act on behalf of the partnership can still bind it by his actions, unless the third party concerned specifically knows that he has no authority, according to Section 6(4).
Therefore, the partnership is the business vehicle that will offer the friends the greatest flexibility as well as privacy (Hillman and Lowenstein, 2015:7), and it is ruled by only one Act, which can be altered by agreement between partners. However, whilst an LLP is subject to more law and accountability; it provides members with liability from debts. One problem is however that LLPs are not yet fully tested by the courts, which mean that it is still a more uncertain vehicle than a partnership (Hillman and Lowenstein, 2015:7).
(ii) A business associate, who has taken on a new role as operations Manager of a small business, has asked you to help her to explain the difference between an employee and an independent contractor to the Managing Director.
Therefore, perhaps the greatest distinction is that employees are afforded significantly greater statutory protection. The difficulty is in determining the distinction in practice, as when, for example, an independent contractor works on a project for a long time, the differences may become blurred. The issue has been decided in the common law, which has taken into account the numerous types of situations to be found in workplaces. As Lord Denning stated in Stevenson & Others v. MacDonald and Evans, it can be difficult to distinguish. Although there is no statutory way of defining the difference, the courts have built up through cases a way of distinguishing the difference. The test of control is significant, as defined in Yewens v. Noakes, in which the judge stated that an employee is a servant who is “…subject to the command of his master as to the manner in which he shall do his work.” In the modern era, however, this test was viewed as inadequate, and it was developed in Ready Mixed Concrete (South East) Ltd v. Minister of Pensions and National Insurance (1968:520), in which it was stated, “control includes the power of deciding of how the thing is to be done, the means to be employed in doing it, the time when and the place where it shall be done.” Therefore, an independent contractor would probably not be subject to the same amount of control as would an employee, and would have greater autonomy. However, due to changes in the industrial environment, the control test was judged inadequate as the only distinguishing factor (Hillyer v. Governors of St Bartholomew’s Hospital, 1909.) As stated in Beloff v. Pressdram Ltd (1973:250), skill is also an important factor, as “the greater the skill required for an employee’s work the less significant is control in determining whether the employee is under a contract of service.” It is possible therefore that an independent contractor may have a certain skill that allows him greater flexibility and autonomy than an employee.
In 1952, Lord Denning noted industrial developments in Stevenson & Others v. MacDonald and Evans (1952), as he developed the integration test, which concerns the necessity of a person’s work to a business. However, although this integration test is used in addition to the control test, it can be difficult to ascertain what exactly is of necessity to a business, as businesses and their structures can be very different. Another approach is that of the test which defines whether it is another business that will gain or suffer the ultimate benefit or loss, as in Lee Ting Sang v. Chung Chi-Keung (1990), Lord Griffiths stated that a “skilled artisan earning his living by working for more than one employer as an employee and ... a small businessman venturing into a business on his own account as an independent contractor with all its attendant risks.” Market Investigation Ltd v. Minister of Social Security (1969) also tackled the question of whether a person is an individual working for himself of for the benefit of a company, whilst another test that has been developed consists of the court looking at the real relationship between the parties, rather than merely the label that they have placed on it, as in Young & Wood Ltd v. West (1980).
The courts now use a multiple test to distinguish between an independent contractor and employee, following Ready Mixed Concrete (South East) Ltd v Minister for Pensions (1968), which includes looking at the degree of control to which the worker is subject, whether he pays his own tax and national insurance contributions, is provided with holiday pay, in addition to other relevant terms. O’Kelly v Trusthouse Forte (1983) considered factors relevant to a contract of employment, such as whether an individual has invested capital, the performance of roles under the auspices of the company, whether an individual is considered to represent the company, whether the company provides for, or pays for clothing, whether the company deducts tax at source, and existing disciplinary procedures, among other factors.
Therefore, it is possible for a distinction to be made ; however, this distinction is not always clear, to the extent that no exhaustive list exists, and the courts have been required to develop distinguishing factors in case law over a number of years.
(iii) Your colleague has missed classes and asks you to help him catch up on the European Union (EU) elements of the module. Write a short report for him, explaining the significance of both monist and dualist legal systems and the difference between EU Regulations and Directives.
Monist legal theory advocates that the sovereignty of the state should be absolute and therefore ought not to be overruled by international law, or by the law of the European Union. This view advocates that as a member of the European Union, a state has willingly limited its own sovereignty (Blumann and Dubois, 2005:536.) Van Gend en Loos held that the EEC Treaty is “more than an agreement which merely creates mutual obligations between the contracting states…. it is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects Member States and also their citizens.” The next significant case was Costa v. ENEL, in which the European Court of Justice established the doctrine of direct effect and the imposition of European Union law above the national law of Member States. Through the European Union, Member States have agreed to limit their own rights and powers. This was the in case of Amministrazione delle Finanze dello Stato v. Simmenthal, which stated (1978:21) that it is the obligation of every national court of all Member States to “apply European Community law in its entirety…and set aside any provision of national law which may conflict with it.” As Novoakovic (2013:805) has noted, this requires the courts of Member States to act as the agents of the European Union. This can be stated to be the definition of monism in the European Union.
In contrast, dualist legal theory requires that a country intervene to implement outside law into its own legal system. Monism in the European Union is, for the most part, the system that currently exists as it is only required that parliamentary approval exists for the ratification of a treaty (Novoakovic, 2013:805) and in fact, by belonging to the European Union, it is arguable that this ratification exists in advance and is not therefore formally necessary. In contrast, in dualist legal systems, a government must transpose new international or European laws. Dualist legal theory advocates that international law and national law are of equal value but should remain completely distinct, and should not interconnect, as they cover different legal areas. In European law, therefore, there exists a system in which national law is subservient to the edicts of European law, which is the opposite of dualism. The system that requires Member States to transpose the rulings of the European Union law into the national law of Member States has essentially made monism compulsory. One example of this is the system of immediate applicability of European Union Regulations, which is held necessary under Article 249 of the EC Treaty.
Regulations are a key example of the monist legal nature of the European Union, as they are transposed directly into the national law of Member States, without any requirement for ratification (Craig and de Burca, 2011:104.) In the Variola v Amministrazione delle Finanze the European Court of Justice stated (1973:10) that the “direct application of a Regulation means that its entry into force and its application in favour of those subject to it are independent of any measure of reception into national law.” In contrast, it is not necessary to direct Directives to specific Member States, and whilst they are binding as to the result to be achieved, States have a choice as to the forms of implementation, which gives them greater flexibility than Regulations (Craig and de Burca, 2011:106.) However, Directives are not, as Craig and de Burca (2011:106) note, “vague”, individuals are able to use them in the European Courts against Member States, which may be liable for any failure to implement a Directive.
Case 6/64, Judgment of 15 July 1964, Flaminio Costa v. ENEL,  ECR 585.

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Duress or coercion is a reasonably grounded fear on the part of an actor that he or another innocent person would be immediately killed or would immediately suffer serious bodily injury if he did not commit the act. Duress is a defense to all offenses except where the accused kills an innocent person. R.C.M. 916(h). United States v. Hullum , 15 M.J. 261 (C.M.A. 1983) (accused’s absence may be excused, if he left because his life was endangered).
The defense of duress is not limited to those circumstances where the accused feels that he personally is going to immediately be killed or suffer serious bodily injury. United States v. Jemmings , 1 M.J. 414 (C.M.A. 1976) (accused pled guilty to housebreaking and, in the providence inquiry, he testified that he committed the act because he was scared that something would happen to his family if he did not); see also United States v. Palus , 13 M.J. 179 (C.M.A. 1982) (reversing conviction, where accused wrote bad checks to cover debts because he feared for his wife’s safety, because evidence raised the duress defense).
The need of a service member to absent himself from a perilous situation at his duty station in order to find a safer place from threatened injury is not normally a good defense to AWOL. See United States v. Wilson , 30 C.M.R. 630 (N.B.R. 1960) (accused went AWOL because another service member threatened his life; but Board of Review affirmed the conviction because he did not eliminate the threat by going AWOL). But see United States v. Hullum , 15 M.J. 261 (C.M.A. 1983) (accused’s absence may be excused, if he left because his life was endangered); United States v. Roberts , 15 M.J. 106 (C.M.A. 1983) (summary disposition) (finding that sexual harassment and immediate threat to the physical safety of the accused’s wife raised the defense of duress to an unauthorized absence).
Although sexual harassment may, in certain circumstances, be a defense to anunauthorized absence, it did not constitute duress when the second lieutenant conceded during the providence inquiry that she did not reasonably fear imminent death or serious bodily injury of her children when she went AWOL. United States v. Biscoe , 47 M.J. 398 (C.A.A.F. 1998).
An accused’s fear that work to which he was assigned in the mess hall wouldaggravate his eye injury and commander’s causing accused to be evicted forcibly from his off-post residence did not constitute the affirmative defense of duress in an AWOL case, because accused could not reasonably fear death or serious bodily injury. United States v. Guzman , 3 M.J. 740 (N.C.M.R.), rev’d on other grounds , 4 M.J. 115 (C.M.A. 1977).
The accused must reasonably apprehend immediate threat of death or serious bodilyharm, and there must not be alternatives. United States v. Olinger , 50 M.J. 365 (C.A.A.F. 1999) (finding no “substantial basis” in law to reject the guilty plea, where accused went AWOL and missed a movement because he felt his wife’s depression might kill her; during the providence inquiry, the accused failed to provide enough details of immediate threat of death or serious bodily harm and that there were no alternative sources of assistance for his wife other than going AWOL and missing movement).
Accused was not entitled to duress defense because he had a reasonable opportunityto avoid going AWOL. United States v. Riofredo , 30 M.J. 1251 (N.M.C.M.R. 1990) (finding that accused should have sought the assistance of the command to stop assaults by noncommissioned officer); R.C.M. 916(h); see generally TJAGSA Practice Note, Duress and Absence Without Authority , Army Law., Dec. 1990, at 34 (discussing Riofredo ).
United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) aff’d, 58 M.J. 129(C.A.A.F. 2003). Accused who was ordered and who refused to receive his sixth and final anthrax vaccination could not raise defense of duress. The defense requires an unlawful threat from a human being. Defense of duress is not raised by a reasonable belief that compliance with a lawful order will result in death or serious bodily injury.

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Clarence A. H. Meyer, Atty. Gen. of Nebraska, and Melvin Kent Kammerlohr, Asst. Atty. Gen., for petitioner.
Motion of respondent for leave to proceed in forma pauperis granted. Petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit denied.
I would grant certiorari and summarily reverse. The United States Court of Appeals for the Eighth Circuit has erroneously interpreted the decision of this Court in Burgett v. Texas, 389 U.S. 109 (1967), and also has effectively overruled the Nebraska Supreme Court on a question of state law-the interpretation of Nebraska's Habitual Criminal Act.
Losieau was convicted of burglary in 1952. Under Nebraska practice, after the jury had made the guilty finding, the trial court held a hearing outside the jury's presence to determine whether or not the penalty for burglary should be enhanced under the Nebraska Habitual Criminal Act, Neb. Rev.Stat. 29-2221 (1964 Reissue). A 1945 conviction for stealing a car was one of the prior convictions alleged, and the trial court found it and another conviction to be valid for enhancement purposes. Losieau was given a 20-year sentence. He then brought unsuccessful state post-conviction actions, contending that the 1952 sentence was invalid because he was denied counsel (1) when he pleaded guilty to the 1945 charge and (2) when he was thereafter sentenced to a prison term of three years for the [396 U.S. 988 , 989] conviction based on the charge. Thereafter Losieau sought habeas corpus on a claim before the United States District Court for the District of Nebraska that he had been denied counsel at the 1945 proceedings in the state court. The federal court denied relief after hearing, finding that Losieau had been represented by counsel when he actually pleaded guilty to the auto theft charge in 1945. It also held that the validity of the 1945 sentence and the underlying issue of lack of counsel at sentencing one day following the plea were irrelevant, noting that any defect in sentencing would not affect the validity of the conviction, and observing that under Nebraska law it was solely the validity of the conviction, not the sentence, which was important. On appeal, the Eighth Circuit reversed, deciding that because the Nebraska Habitual Criminal Act applied where a defendant had been twice previously 'convicted of crime, sentenced and committed to prison,' Burgett required that the sentence also be valid to give effect to the right to counsel at sentencing in 1945.
The Supreme Court of Nebraska has indicated that 'an unauthorized or erroneous sentence does not void a lawful conviction' for the purposes of 29-2221. Kennedy v. State, 171 Neb. 160, 105 N.W.2d 710, 721 (1960). See also State v. Burnside, 181 Neb. 20, 146 N.W.2d 754 (1966), cert. denied, Burnside v. Sigler, 387 U.S. 936 (1967); Haswell v. State, 167 Neb. 169, 92 N.W.2d 161 (1958).
Burgett v. Texas, supra, held that a conviction obtained in violation of Gideon v. Wainwright, 372 U.S. [396 U.S. 988 , 990] 335 (1963), could not be used 'to support guilt or enhance punishment for another offense ....' ( 389 U.S., at 115 ), because such use would be giving renewed effect to the denial of Sixth and Fourteenth Amendment rights. Burgett did not require the Eighth Circuit to reinterpret Nebraska's 29-2221 to require that a sentence as well as a conviction be validly entered.


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3. Thy Kingdom come. 3. And become thy dutiful Children and faithful Subjects.
4. Thy Will be done on Earth as it is in Heaven. 4. May thy Laws be obeyed on Earth as perfectly as they are in Heaven.
5. Give us this Day our daily Bread. 5. Provide for us this Day as thou has hitherto daily done.
6. Forgive us our Debts as we forgive our Debtors. 6. Forgive us our Trespasses, and enable us likewise to forgive those that offend us.
7. And lead us not into Temptation, but deliver us from Evil. 7. Keep us out of Temptation, and deliver us from Evil.
New V. Heavenly Father, is more concise, equally expressive, and better modern English.
New. May all revere thee.
New V. And become thy dutiful Children and faithful Subjects.
New V. May thy Laws be obeyed on Earth as perfectly as they are in Heaven.
New V. Provide for us this Day, as thou hast hitherto daily done.
New V. Forgive us our Trespasses, and enable us likewise to forgive those that offend us. This instead of assuming that we have already in and of ourselves the Grace of Forgiveness, acknowledges our Dependance on God, the Fountain of Mercy, for any Share we may have of it, praying that he would communicate of it to us.
New V. Keep us out of Temptation.
B. Franklin’s Version of The Lord’s Prayer.
Heavenly Father, may all revere thee, and become thy dutiful Children and faithful Subjects; may thy Laws be obeyed on Earth as perfectly as they are in Heaven: Provide for us this Day as thou hast hitherto daily done: Forgive us our Trespasses, and enable us likewise to forgive those that offend us. Keep us out of Temptation, and deliver us from Evil.

matches: V. V. V. V. V. V.


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The Court today denies certiorari to a Black man who stands convicted by an all-White jury which had been selected through a process which petitioner alleges methodically excluded members of minority racial groups. The most pernicious of the practices used to exclude Black and Chicano jurors was what purported to be an intelligence test which, because of its cultural bias and its blatant unreliability, excluded nearly 50% of the otherwise qualified prospective jurors from minority groups. We would all agree that the brand of justice received in our courts should not depend upon the color of one's skin and that the selection of jury panels should not be tainted by the exclusion of racial groups. With all respect I fear precisely that result has obtained in the case.
The issue for the jury was the relative credibility of two White police officers and the four Black defense witnesses. Cf. Note, 79 Yale L. J. 531 (1970). That this question was close is indicated by the fact that after some 5 1/4 hours of deliberation the jury reported itself deadlocked eight-to-four and an Allen charge was then given. See Allen v. United States, 164 U.S. 492 (1896). It took an additional hour of deliberation before the jury resolved the credibility issue against petitioner and returned a verdict of guilty.
On appeal the California Court of Appeal affirmed the conviction, holding that petitioner, as a Black, had no standing to challenge the exclusion of Chicanos from the jury panel,1 that the exclusion of racial minorities was unintentional and that, in any event, it did not deny equal protection of the laws. The Supreme Court of California denied a petition for a hearing and petitioner now seeks a writ of certiorari.
through racially biased procedures. [Footnote 4] 'If there has been discrimination, whether accomplished ingeniously or ingenuously, the conviction cannot stand.' Smith v. Texas, 311 U.S. 128, 132, 166 ( 1940). It would seem enough, therefore, to reverse this conviction out of hand because of the racial bias built into the jury selection and because of the improper legal standard applied by the court below.
It would seem that this device is illsuited to serve any legitimate state interest and does serve to exclude from jury panels significantly disproportionate numbers of minority groups. The Constitution does not of course require racially-balanced juries because, in our pluralistic society, a group of 12 men and women could not possibly represent all of the ethnic, racial and economic groups which comprise our diverse culture. Swain v. Alabama, 380 U.S. 202, 208, 829 ( 1965); Cassell v. Texas, 339 U.S. 282, 286-287, 631-632 (1950); Akins v. Texas, 325 U.S. 398 (1945). What the Constitution demands, however, is that no such groups be consciously excluded from the selection process. See Hill v. Texas, 316 U.S. 400, 404, 1161; Smith v. Texas, 311 U.S. 128, 130, 165; 5 U.S. Commission on Civil Rights Report, Justice 89-103 (1961).
What the facts might show after oral argument, no one knows. I would hold constitutionally infirm a conviction returned by a jury from which a disproportionately large number of minority group members were excluded through the use of a culturally biased intelligence test where the test is shown to be unreliable as a measure of jury competence. There is a prima facie showing that this test is vulnerable. Accordingly, I would grant the petition for a writ of certiorari.
Mr. Justice BRENNAN would also grant certiorari.
Footnote 2 Even if it were assumed that these exclusions were the unavoidable consequences of Los Angeles' method of jury selection, it does not follow that jury panels must be racially unrepresentative of the community. The names of prospective jurors are selected by a computer from voter registration lists. With modern sampling techniques, it would be a simple matter to program the computer so that its initial selection of names would-after the operation of these exclusions-yield a racially representative jury panel. Mills, A Statistical Study of Occupations of Jurors in a United States District Court, 22 Md.L.Rev. 205, 214 (1962).
'A selection system which is economically and racially unbalanced by the application of juror quality tests can produce representative panels if a larger percentage of those population segments which tend to fail the tests is considered for jury service so that a fair proportion of their members survive the selection process.' Kuhn, Jury Discrimination: The Next Phase, 41 S.Cal.L.Rev. 235, 315 (1968).
Footnote 3 See Appendix to this opinion.
Footnote 4 The Court of Appeal argues, for example, that '[t]he poor, the Black and Mexican-Americans have the power to register to vote, and voter registration is free and relatively uncomplicated.' Crim. No. 17615, at 14. Be this as it may, this argument is unresponsive to petitioner's contention that jurors are selected from lists which are racially unbalanced.
Footnote 5 Evidence was adduced at trial which indicated that, even apart from the unsupported changes in the grading of the examination, the test was likely invalid solely because of its vintage and the unrepresentative sample used to validate it in 1935.


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This policy explains how Megaport collects, uses, shares, holds and retains your personal information as required in the normal course and scope of Megaport’s business or permitted by law, whether you are a website visitor, employee, employment applicant, staff member of a Megaport customer, or other private individual whose personal information is affected by Megaport’s services or activities (Data Subject or you). (Personal information is any information relating to an identified or identifiable natural person as defined by privacy laws in each country that we operate).
Part 1 of this policy relates to Megaport’s customers and how we use the information that we collect from them, including any personal information and information transmitted via Megaport’s network in the course of providing the services according to the Global Services Agreement (Services).
Part 2 relates specifically to recruitment and recruitment-related personal information.
Part 4 applies generally (i.e. to customers, job applicants and website visitors) and sets out where your personal information may be stored or shared; how Megaport protects personal information; and what your rights as a data subject are.
Megaport may update this policy from time to time by posting the revised version on Megaport’s website.
records of each customer’s use of Services and that customer’s communications with Megaport.
The data controller with regards to the Collection Data and the related Services is the relevant Megaport entity providing the Services to the Customer.
Providing the Collection Data is voluntary and based on the free will of the individual or entity providing the Collection Data. However, if a customer does not provide Megaport with the information Megaport needs, Megaport may not be able to provide that customer with the Services that customer wants or Megaport may be restricted in the way that Services can be supplied.
informing our customer about special promotions that Megaport offers and which Megaport thinks may be of interest to customer, unless customer has requested Megaport not to do so. Megaport may tell customer about these services and offers via direct mail or electronic direct mail. You may opt-out of receiving direct marketing at any time by contacting Megaport at privacy@megaport.com. If Megaport wants to inform its Customers about promotions and news of third parties, it will not do so without Customer’s explicit prior opt-in consent as required by applicable direct marketing laws.
Collecting and processing the above Collection Data for the purposes specified above is necessary to fulfil the Services towards the Customerand to protect Megaport’s protected interests specified above.
a specified recipient to facilitate a purchase or potential purchase of the whole or any part of Megaport’s business.
Megaport will store your personal information in Collection Data only as long as needed to satisfy the above purposes for which it was collected (normally after your Global Services Agreement expired) or as required or permitted by law.
Apart from collecting and processing the Collection Data, Megaport will, while performing its Services to its customers, transmit data packets via its network (Transmission Data). Megaport is registered as telecommunications services provider at the German Federal Network Agency (Bundesnetzagentur) and bound to the Secrecy of Telecommunication.
content data, i.e. the content of the data packets sent through Megaport’s network.
Transmission Data is only collected if a transmission of data packets through Megaport’s network is requested by Customer. Collection and processing of Transmission Data is a technical procedure and triggered by Customer’s request to transmit data packets through Megaport’s network or Services.
Megaport processes Transmission Data to the extent necessary to provide the Services to the Customer, in particular to build up the connection between sender and recipient of data packets and transmit these data packets and (if applicable) to calculate fees for the use of the Services if these are connected to the amount of data transmitted.
Megaport may also use certain technical Transmission Data in order to detect and resolve malfunctions in Megaport’s network and Services or in the case of factual indications for the unlawful use of the Services or the network to detect and prevent this unlawful use.
In no event will Megaport access the content data transmitted through our network or the Services.
Megaport will share Transmission Data with other network operators and service providers to the extent necessary for fulfilling the data transmission requested by Customer and to cooperate with government, law enforcement and regulatory bodies where this is required for Megaport to comply with Megaport’s legal obligations.
Megaport will delete all Transmission Data directly after the requested network connection has been terminated except where it is necessary to retain certain Transmission Data for billing purposes (where fees are connected to the amount of data transmitted) or for detecting and resolving malfunctions of the Services and Megaport’s network or in the case of factual indications for the unlawful use of the Services or the network to detect and prevent this unlawful use. Megaport may also be obliged to retain certain Transmission Data by domestic laws.
records of your communications with us.
If you provide us with personal information, this is based on your free decision and on your free will. However, if you don’t provide us with the personal information Megaport needs, Megaport may not be able to assess or proceed with your job application.
Megaport will only process sensitive personal data which you may provide to us of your free will (that is personal data relating to an individual’s racial or ethnic origin, political opinions, religious or other beliefs, political or trade union membership, philosophical beliefs, health, sexual orientation or criminal convictions).
Megaport usually collects personal information about you when you interact directly with us. For example, Megaport collects your personal details when you provide information to us in person, by phone or email, or when you enter your personal details on Megaport’s recruitment websites.
Megaport may also collect personal information about you indirectly, including from your referees, recruitment agencies and third parties Megaport engages to provide recruitment services on our behalf.
Megaport will process your personal information for these purposes solely to the extent this is necessary for the application process and/or your subsequent employment with Megaport, as required by our legitimate interests and applicable laws.
a specified recipient to facilitate a purchase or potential purchase of our business.
Megaport will share your personal information with the above third parties only to the extent this is required for the application process or your subsequent employment with Megaport.
Megaport will delete your personal information directly after the application process is finished unless you are employed afterwards at Megaport or have consented to retention of your data for future employment offers.
Information that you provide to us: you may voluntarily provide us with information about you by filling in forms on the Website or by corresponding with us by phone, e-mail or otherwise. This includes information you provide when you register with the Website, subscribe to our Services and when you report a problem with the Website.
Information that Megaport automatically collects about you: With regard to each of your visits to the Website we may automatically collect information that is automatically transferred to us when you visit our Website as specified above.
Megaport will use the above information only to the extent required for Megaport’s protected interests, or where this is necessary to provide requested Services to you.
We may share your personal information with suppliers and sub-contractors for the performance of our Services or where it is required to enable you to use our Website.
Megaport will only share your pseudonymized technical information with these third parties including its group companies only where such transfer is justified under Megaport’s protected marketing and improvement interests.
You may object to such transfer of data by email to privacy@megaport.com or by using a respective “do not track” tool in your web browser.
For the above purposes, Megaport will not share any directly identifying information (e.g. names, email addresses, etc.) without your explicit prior consent except where this is necessary to provide any Services requested by you or to process any of your requests.
Megaport retains your personal information only to the extent this is required for the purpose it has been collected for and as required or permitted by law.
A cookie is a small file of letters and numbers that we store on your browser or the hard drive of your computer if you give your respective consent upon the first visit of our Website.
Cookies help Megaport to collect information about visits to Megaport’s websites for marketing and statistical purposes to improve the way Megaport interacts with customers and with its other Website users.
All accesses to pages on Megaport’s websites are “logged”. The logged information contains such things as a list of the pages accessed and the sort of browser used. This information is used to check for attempts at “hacking”, or other fraudulent activity, to indicate missing pages or other web server problems. Megaport also uses it to provide general statistics such as the number of people viewing particular parts of the site.
The Megaportal cookie is used to authenticate customer access or to make sure customer is the same person over a given “session” time.
Megaport uses third party cookies (e.g. Google Analytics or Intercom cookie) to track how Megaport’s Website is used. We may provide a limited amount of your information to these third parties.
You can find more information about the individual cookies, which data is processed by them, how we use them and the purposes for which we use them and how to opt-out from them here.
You can usually remove or block cookies by using the settings in your browser, but this may affect your ability to use Megaport’s websites.
Megaport operates in various countries globally and the organisations that Megaport may share your information with may be located in countries both within and outside of the European Union (“EU”), including the United States, Canada, Australia, New Zealand, Singapore, Hong Kong, the Philippines, Japan and the United Kingdom. Note that the personal data protection and privacy laws in certain non-EU countries may not be as protective of your data as they are within the EU and may thus expose you to certain risks (such as a lower standard of protection applying to the processing of your information, or your having fewer rights to access your information, or there not being a regulatory body dedicated to personal data protection in that country that you can approach). Megaport will take all reasonable steps to ensure that recipients in such countries comply with a level of data protection that is considered to be adequate from the perspective of EU data protection laws (such as being covered by the EU-US Privacy Shield or standard contractual clauses approved by the European Commission), but you nevertheless acknowledge the aforesaid potential risks and hereby consent to your data being processed in such countries.
Megaport treats your personal information as confidential. Megaport stores your personal information electronically and/or in hard copy form. Megaport takes a range of measures to protect the security of your personal information, including by storing electronic information in password-protected servers that are in restricted and monitored areas. Megaport does not store full credit card details on its own systems, but instead makes use of a PCI DSS-compliant payment service provider.
Your personal information can be accessed via your Megaportal account or by contacting Megaport at privacy@megaport.com.
Megaport takes all reasonable steps to ensure that the personal information Megaport holds about you is accurate, complete and up-to-date. You can access and correct most of your personal information (such as your contact details) using your Megaportal account. You can also contact Megaport at privacy@megaport.com if you wish to access or correct personal information that Megaport holds about you.
You have the right to request information about the data we store, to demand the correction of incorrect data, and to demand its deletion or the blocking or restriction of the processing of data. You also have the right to data portability in certain situations.You are also entitled to object to the processing of your data, provided the reason for the objection lies in your special situation and provided it is data we process to protect one of our protectable interests.
You can exercise the above rights at any time by contacting us at privacy@megaport.com.
If our data collection or processing is based on your consent, you may at any time freely withdraw your consent with effect for the future by email to privacy@megaport.com.
If you have an enquiry regarding privacy, or you wish to raise a complaint, you can contact the Privacy Officer by email at privacy@megaport.com.
 E.G. by Art. 4 (1) of the GDPR.
 E.G. under Art. 6 para 1 lit f) of the GDPR.
 E.G. under Art. 6 para 1 lit c) of the GDPR.
 E.G. under Art. 6 para. 1 lit f) of the GDPR.
 E.G: under Art. 6 para 1 lit f) of the GDPR.
 E.G. under Art. 15 of the GDPR.
 E.G. under Art. 16 of the GDPR.
 E.G. under Art. 17 of the GDPR.
 E.G. under Art. 18 of the GDPR.
 E.G. under Art. 21 of the GDPR.

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Art. 4
Art. 6
Art. 6
Art. 6
Art. 6
Art. 15
Art. 16
Art. 17
Art. 18
Art. 21