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2013-12-17 Assigned to COLD PLASMA MEDICAL TECHNOLOGIES, INC. reassignment COLD PLASMA MEDICAL TECHNOLOGIES, INC. ASSIGNMENT OF ASSIGNORS INTEREST (SEE DOCUMENT FOR DETAILS). Assignors: WATSON, GREGORY A., JACOFSKY, MARC C.
2015-11-17 Assigned to PLASMOLOGY4, INC. reassignment PLASMOLOGY4, INC. CHANGE OF NAME (SEE DOCUMENT FOR DETAILS). Assignors: COLD PLASMA MEDICAL TECHNOLOGIES, INC.
A cold plasma device for killing or reducing a microbiological pathogen, or denaturing a protein in food, in a food processing system using a cold plasma device. The cold plasma device directs a cold plasma at food or a food surface over an effective area for an effective amount of time. The cold plasma device can be a DBD electrode device, or an army of DBD electrode devices. A grounding rod assembly is also described.
This application claims the benefit of U.S. Provisional Application No. 61/735,804, filed Dec. 11, 2012 and entitled “Method and Apparatus for Cold Plasma Food Contact Surface Sanitation,” which is incorporated herein by reference in its entirety.
The present invention relates to devices and methods for food contact surface sanitation and, more particularly, to such devices that are cold plasma based and methods for using same.
Microbiological pathogens continuously pose a problem in the food processing industry from both a safety and a cost standpoint. When introduced onto food contact surfaces in food production systems, such as food transferring conveyors, they pose a significant safety risk to the food supply and ultimately the consumers. These microbes are not endemic to food processing plants, but are usually brought into the facilities by contaminated agricultural products or poor practices among staff and visitors. A single item containing a pathogenic microorganism can contaminate large volumes of food products by transferring those microbes to food transport surfaces, which in turn transfer the microbes to other foods. Since these surfaces are cleaned only at set intervals, or when quality control tests indicate a problem, there is a substantial risk of large batch contamination from a very small inoculant.
Food allergens can pose a similar risk to individuals with specific food sensitivities. Food allergens are generally proteinaceous and may be easily transferred from one food product to another on food transport surfaces and processing machinery. Since proteins readily adhere to surfaces, they can be difficult to eliminate and often must be denatured by heat or chemical means.
People and animals can suffer from serious illness or even death when exposed to food pathogens or allergens. Because of this, numerous regulations for testing, cleaning, and maintenance are enforced in food production facilities to help reduce or eliminate pathogens and contaminants, thereby protecting the consumer. Effective food contact surface and processing equipment sanitation is one key to a safe food supply. This process is costly, reduces plant productivity, and requires dozens of man-hours to complete, often requiring partial disassembly of complex machinery. Methods currently being used to sanitize food contact surfaces include chemical, high temperature, ultraviolet (UV) and gamma irradiation.
Recently, non-thermal or “cold” plasmas (ionized gases) have gained attention for their ability to kill a wide variety of microorganisms, including foodborne pathogens, at high log reductions (a log reduction is a reduction by a factor of a power of 10, e.g., a log 2 reduction is a reduction by a factor of 100), with short exposure times. Cold plasmas have also been shown to denature proteins, which may reduce or eliminate allergens on food contact surfaces.
What is needed is the ability to apply these “cold plasmas” in a food processing context to provide improved food safety. What is further needed is the ability to generate large volumes of cold plasma at the interface with food contact surfaces in a sale and of manner in a food processing plant. In particular, what is needed is a plasma treatment module for the continual sanitation of food transport surfaces while these surfaces remain in operation. This Will greatly improve food safety for consumers and at the same time improve throughput and profitability for producers and manufacturers.
An embodiment is described of an apparatus that can kill or reduce a microbiological pathogen or denatures a protein associated with food, in a food processing system. The apparatus includes a cold plasma device that is configured to direct a cold plasma at a target substrate over an effective area for an effective amount of time.
A further embodiment is described of a method of killing or reducing a microbiological pathogen, or denaturing a protein associated with food, in a food processing system. The method includes contacting a target substrate with a cold plasma over an effective area for an effective amount of time.
FIGS. 1A and 1B illustrate Salmonella cultured on Salmonella Shigella (SS) agar seeded at 103 CFU/ml (colony-forming units per milliliter). FIG. 1A shows the control condition and FIG. 1B shows the growth inhibition zone after being treated with cold plasma in accordance with embodiments of the present invention.
FIG. 2 illustrates an E. coli (0157:H7) exposure test, in accordance with embodiments of the present invention.
FIG. 3 illustrates the results of preliminary prophylactic surface treatments to inhibit pathogen growth (E. coli, 0157:H7), in accordance with embodiments of the present invention.
FIGS. 4A and 4B illustrate a test of a dielectric barrier discharge DBD) cold plasma on E. coli seeded at 107 CFU/ml. FIG. 4A illustrates an untreated control sample and FIG. 4B illustrates treatment for 30 seconds, in accordance with embodiments of the present invention.
FIG. 5 illustrates green fluorescent protein (GFP) denaturing from a cold plasma treatment, in accordance with an embodiment of the present invention.
FIGS. 6A and 6B illustrate an exemplary embodiment of the cold plasma surface treatment DBD electrode, in accordance with an embodiment of the present invention.
FIG. 7 illustrates an exemplary embodiment of the cold plasma corona on nitrile food conveyor surface, in accordance with an embodiment of the present invention.
FIG. 8 illustrates a computer assisted design (CAD) model of cylindrical electrode applied to a flat substrate representative of a food transport belt, in accordance with an embodiment of the present invention.
FIG. 9 illustrates a plasma sanitation module, in accordance with an embodiment of the present invention.
FIG. 10 illustrates a side view of a food conveyor DBD array with grounding assembly, in accordance with an embodiment of the present invention.
FIG. 11 illustrates a plan view of a two-part construction of the DBD array and the grounding rods, in accordance with an embodiment of the present invention.
Cold temperature plasmas have attracted a great deal of enthusiasm and interest by virtue of their provision of plasmas at relatively low gas temperatures. The provision of plasmas at such a temperature is of interest to a variety of applications, including wound healing, anti-bacterial processes, various other medical therapies and sterilization. Embodiments of the present invention are directed to food preparation applications.
An objective of certain embodiments in the present disclosure is to develop a cold plasma array that provides a chemical free, dry, non-thermal, environmentally friendly, flexible, fast and effective antimicrobial solution for improved food safety, nutrition, and health. Such embodiments may improve the safety of foods moving through any processing facility that uses belts and conveyors, may improve throughput and efficiency of food processing facilities by reducing offline cleaning time, may reduce food recalls due to microbial contamination, reduce allergen cross-contamination, and may reduce the amount of chemicals and water used in the cleaning process for improved environmental health and sustainability.
The novel approach described in various embodiments allows for the low cost construction of very large DBD plasma delivery devices that can be assembled into large arrays and driven by a unified power source. These large arrays can be retrofitted to the underside of existing food transport conveyor systems to continually treat the belt surface when it is devoid of food products. By treating the surface after it has delivered its load and prior to pick up of the next load, the ability to spread pathogens from a single contaminated item to a large batch of food product will be greatly curtailed. This will significantly reduce offline cleaning times of direct food contact surfaces and improve the overall safety of the food supply delivered to consumers. Also, surfaces that may be too sensitive for existing cleaning techniques (i.e., UV, thermal, chemical, etc.) could be treated with cold plasma for sanitizing purposes. It is expected that allergens and toxins would be denatured by the same plasma treatment array, thereby contributing further safety and efficiency improvements.
As noted above, surface sanitation is a vital process and a serious concern in the food processing industry. Companies spend millions of dollars every year to make sure that their food contact surfaces remain clean of harmful microorganisms such as bacteria, mold, and yeast. The current methods, although effective, have many problems. Thermal and autoclaving sanitizing methods will not work with polymer-like materials because of their low resistivity to heat. These methods are also time-consuming and there are significant size limitations on the equipment that can be placed inside of a thermal sterilizer. Various chemical reagents are utilized such as ethylene oxide (ETO), and reducing agents such as chlorine, and hydrogen peroxide. However, these chemical modes of sanitation can be harmful to humans because of their toxicity and may require substantial volumes of rinse water. Ultraviolet (UV) and gamma irradiation require a relatively long exposure time and can have limited effectiveness on certain pathogens and on porous surfaces. These methods are also mutagenic and must be carried out in specialized containment areas to protect workers from exposure. With these potential problems and dangers, a better method of sanitation/disinfection/sterilization could have a dramatic impact on the food processing industry. Cold plasma technology can address all of these concerns and limitations.
In addition to foodborne illnesses, each year millions of people suffer from allergic reactions caused by foods. Although most of these reactions have minor symptoms, it is estimated 150 to 200 Americans die each year due to severe anaphylactic allergic reactions to food allergens. In 2004, the U.S. Congress passed the Food Allergen Labeling and Consumer Protection Act of 2004 (FALCPA). This law helped the allergen-sensitive consumer identify offending products to their condition. In addition, many food manufacturers voluntarily put warning labels on products that may be cross contaminated by food containing possible allergens. Currently, the only methods available to destroy or denature proteins are by treating the contaminated surface with either extremely acidic agents or high temperatures.
Some of the common food allergies include milk, eggs, fish, peanuts, wheat, tree nuts, and soybeans. Allergic reactions to food products are caused by the body's immune system responding to the allergen as a threat. Typically, a protein within, or introduced to the surface of, the adverse food sparks an immune response. For instance, peanuts have at least 8 different proteins that can cause allergic reactions (Ara h1-Ara h8). Research suggests that cold plasmas can alter the structure of proteins and inactivate them. In particular, cold plasmas can inactivate proteins that are difficult to address with conventional means, such as prions and bacterial toxins, both of which have a direct impact on food processing. If the binding sites on the food allergen protein which are recognized by the immune system are altered substantially, the allergen may be rendered harmless. The high risk of cross-contamination on food contact surfaces, coupled with the fact that more and more people suffer from one or more food allergies, has made this a growing problem in the industry. Besides improving the sanitation/disinfection/sterilization processes, the incorporation of cold plasma into the food manufacturing industry could also substantially decrease allergen cross-contamination.
The first reports of successful microbial destruction with cold plasma date from 1996, and in the last decade, a substantial number of additional publications have emerged to further support these early reports. These reported tests have been performed on a wide array of substrates including agar dishes, laboratory animals, food products, plastics that are representative of food transport surfaces, and even within small diameter tubes that have utility for medical and food processing safety. Reported log reductions vary greatly (log 3 to greater than log 7) due to different plasma devices used; dielectric barrier discharge (DBD) versus atmospheric pressure plasma jet (APPJ), different electrical signatures employed in the plasma generation, different exposure times (sub-second to several minutes), different strains tested, and different substrates tested.
Additionally, recent publications suggest plasma can denature proteins, even proteins that are difficult to eliminate and have an impact on food safety, such as prions and bacterial endotoxin. Precisely how plasma actually achieves sanitation and protein modification is not yet fully understood and is likely to be a combination of several mechanisms of action. Physical mechanisms (such as electroporation, charged particle bombardment and UV), chemical mechanisms reactive species, free radicals) and biological mechanisms (cellular processes such as deoxyribonucleic acid (DNA) and cell membrane damage) all appear to play a role in the inactivation of bacteria, and the relative contribution of each likely varies between plasma delivery systems, contributing to the lack of consensus.
The cold plasma generators generally described in the plasma literature and prior art are capable of generating only small plumes of non-thermal plasmas that contact very small areas, on the order of 1-2 linear cm or a few cm square at maximum. As the size of the generating electrode(s) are scaled up, the amount of energy required to effectively generate a plasma discharge increases, and this in turn drives up the plasma temperatures. Therefore, while destructive effects on microbes and proteins have been demonstrated in the literature with non-thermal plasmas on a small scale, attempts to scale these systems to treat the larger areas necessary for industrial level treatment generally fail because the plasma become increasingly thermal. Eventually, the thermal content of the plasma detracts from the intended application of a non-thermal plasma to a sensitive heat sensitive surface, animal, or food product.
Cold plasma sources in the plasma literature are typically single frequency plasmas. Single frequency plasmas suffer from an inability to scale in size, and are thereby limited in their area of treatment to small surfaces, such as surfaces with an associated size of approximately 3 sq. cm. In the case of DBD plasmas, in order for the plasma arc to initiate, a ground potential must be present on the treatment to target. In the case of non-conductive treatment targets, it can be difficult to initiate plasma generation. Placing a ground on the opposing side of the treatment surface can be an effective work around, but single frequency plasma is limited in material thickness and distance between electrodes. In addition, single frequency plasmas are unable to initiate on thick dielectric treatment surfaces, even were a ground plane available to direct the cold plasma through the intervening treatment surface.
One method of overcoming the above limitations of plasma surface area generation and penetration is to utilize a multi-frequency harmonic-rich cold plasma (MFHCP). The MFHCP cold plasma sources of the present disclosure can be configured to provide large treatment areas, as well as good penetration of the treatment surface. MFHCP cold plasma sources incorporate the power system and associated applicators is described in U.S. Provisional Patent Application No. 60/913,369, U.S. Non-provisional application Ser. No. 12/038,159 (that has issued as U.S. Pat. No. 7,633,231) and the subsequent continuation applications (collectively “the '369 application family”), and the cold plasma high voltage power supply described in U.S. patent application Ser. No. 13/620,118 and U.S. Provisional Patent Application No. 61/535,250, which are incorporated herein by reference. Inventors consider the capability of providing multi-frequency rich harmonic cold plasma (MFHCP) over an arbitrary length to be an important contribution to applications such as those described herein. MFHCP results, in part, from the use of a power supply that provides electrical energy across a multitude of frequencies to excite the ions in the as (e.g., air in this case). Conventional cold plasmas typically direct electrical energy at a single frequency and are thereby limited in their flexibility while maintaining the temperature of the cold plasma. In contrast, by directing the electrical energy across a multitude of frequencies in an MFHCP cold plasma, scalable cold plasma solutions can result, including the ability to support cold plasmas of an arbitrary length.
The MFHCP device includes an RF tuning network that is within one single power supply, as described in U.S. Provisional Patent Application No. 60/913,369, U.S. Non-provisional application Ser. No. 12/038,159 (that has issued as U.S. Pat. No. 7,633,231) and the subsequent continuation applications (collectively “the '369 application family”), which are incorporated herein by reference. Each universal power supply contains a low-voltage power supply, a high-voltage coil, and a capacitor that works to produce a high voltage RF signal. Each harmonic RF signal is transferred to a cold plasma device through a protected cable that allows the electrical energy to be transferred without any substantial corona discharge energy loss.
In an embodiment of the present invention, a DBD electrode powered by the MFHCP power supply provided a cool, evenly-distributed, plasma over electrode lengths in excess of 244 cm, or eight (8) linear feet. With electrodes of the lengths described in the prior art it is impractical to treat food transport surfaces in situ. For perspective, most previous DBD plasma electrodes are on the order of 1-2 cm, and the prior art known at the time of filing does not disclose any DBD plasma electrodes capable of producing cold plasma plumes in excess of approximately 3 sq. cm. In particular, the prior art does not disclose any DBD plasma electrodes that are suitable for large scale use in the food processing industry. Pilot testing of these extended cold plasma DBD electrodes have again confirmed the ability of MFHCP to destroy a wide array of microbes at high log reductions with 30 second exposure times or less (FIG. 4). The local kill effect happens very quickly (within a few seconds) under the footprint of the electrode, but the longer the electrode is active, the greater the kill area outside of the electrode footprint. This effect outside of the electrode footprint improves the spacing requirements between electrodes in a large system array designed to treat a moving food transport conveyor, in accordance with an embodiment of the present invention.
The DBD plasma-generating devices described in embodiments of this invention are generally referred to as “electrodes” or “DBD electrodes” in this application. The electrodes can be provided in various shapes that are appropriate to the treatment surface. For example, a cylindrical shaped, polygonal shaped, or planar shaped electrode may be an embodiment suitable for a given application. However, a cylindrical-shaped electrode is merely exemplary, and other applicable electrodes appropriate to a particular application are within the scope of the present disclosure. In addition, either a single, or two or more DBD electrodes may be mounted in close proximity (defined as the maximum distance to achieve a plasma arch to the treatment surface at the applied voltage level and frequency) to the food contact surface. For food contact surfaces that are ungrounded, and therefore are incapable of acting as ground for the DBD plasma, a separate carrier designed to hold grounding element(s) can be mounted to the DBD electrode carrier assembly. These grounding element(s) would be located parallel with and adjacent to each of the DBD electrodes. These ground elements may be on the opposite side of the target surface or adjacent to and substantially coplanar with the plasma generating electrodes such that the plasma is generated parallel to the treatment surface rather than perpendicular to it. In a similar manner to the electrode, the grounding element(s) may take on any shape appropriate to a particular application. For example, grounding element(s) may take on a planar, rod, circular, or conical shapes. The two assemblies, the DBD carrier and the grounding carrier, of the device can be mounted on an adjustable support bed that is placed on either side of the food contact surface allowing the contact surface to reside within the optimum treatment zone for the DBD device.
In addition to DBD electrode based embodiments, one or an array of atmospheric pressure plasma jet (APPS) based embodiments may also be configured to provide sufficiently large cold plasma plumes for a given particular application. The APPJ-based cold plasma sources also incorporate the power system and associated applicators is described in U.S. Provisional Patent Application No. 60/913,369, U.S. Non-provisional application Ser. No. 12/038,159 (that has issued as U.S. Pat. No. 7,633,231) and the subsequent continuation applications (collectively “the '369 application family”), and the cold plasma high voltage power supply described in U.S. patent application Ser. No. 13/620,118 and U.S. Provisional Patent Application No. 61/535,250, which we incorporated herein by reference.
In terms of efficacy, the MFHCP device has been shown to destroy Escherichia coli (ATCC#: 25922), Acinetobacter baumannii (ATCC#: BAA-1605), Micrococcus luteus (ATCC#: 4698), Pseudomonas aeruginosa (ATCC#: 27853), Staphylococcus aureus (ATCC#: 6538) and Methicillin-resistant Staphylococcus aureus; MRSA (ATCC#: 33592), Serratia marcescens (ATCC#: 13880), as well as fungus strains such as Candida albicans (ATCC#: 10231). A pilot study of foodborne pathogens, including E. coli (0157:H7) and Salmonella enterititis, treated with MFHCP demonstrated a very high level of destruction (log 3 to log 7, depending upon test parameters) with short exposure times of 30-60 seconds (FIGS. 1 and 2). Additionally, in a second experiment, MFHCP was observed to prophylactically prevent the growth of E. coli (0157:H7) that was seeded on agar after plasma treatment (FIG. 3).
Exploring these results further, FIG. 1 illustrates the impact of MFHCP on Salmonella cultured on SS agar seeded at 103 CFU/ml (colony-forming units per milliliter). FIG. 1A (left, photo) illustrates the untreated control sample, while FIG. 1B (right photo) was treated with MFHCP for 30 seconds. A log 3 reduction (i.e., reduction by 1000) was easily achieved. The plasma was applied only within the square marked “T” but created a zone of inhibition substantially larger than the diameter of the plasma plume.
FIG. 2 illustrates a preliminary E. coli (0157:H7) exposure test. Active bacteria appear pink when cultured on MacConkey agar. This was a very dense seeding challenge with an undiluted Kwik-Stik™ from Microbiologics Inc., seeding at greater than 107 CFU/ml. FIG. 2 illustrates two treatment zones 210, 220 and untreated areas 230, 240. Two exposures of MFHCP were applied, a 30-second exposure and a 60-second exposure. On the left side of FIG. 2 are the 60-second exposure areas, namely the treatment zone 210 and the untreated area 230. On the right side of FIG. 2 are the 30-second exposure areas, namely the treatment zone 220 and untreated area 240. Within the treatment zones 210, 220, there is no growth evident after 24 hours following either a 30 or 60 second exposure. The 60 second exposure has a larger inhibition zone outside of the direct plasma contact area.
FIG. 3 illustrates the results of, prophylactic surface treatments to inhibit pathogen growth. The agar surface was treated with MFHCP for 30, 60, and 90 seconds prior to inoculation. Treatment sector 310 undergoes a 30-second pre-treatment, treatment sector 320 undergoes a 60-second pre-treatment, and treatment sector 330 undergoes a 90-second pre-treatment. After pre-treatment, the plate was set aside for 60 seconds and then a swab with a very dense inoculant (>107 CFU/ml) was run across each of the three treatment sectors 310, 320, and 330, respectively. There is a clear dose-response curve for the pretreated zones, with growth evident in the 30 and 60-second treatment areas, and a greater growth evident in the 30-second treatment area. Importantly, the 90 second pretreatment prevented the growth of any E. coli (0157) within the treatment zone.
FIGS. 4A and 4B illustrate a recent test of a MFHCP DBD plasma tested on E. coli seeded at 107 CFU/ml and treated for 30 seconds. FIG. 4A (left figure) is the control sample, with bacterial confluence on the entire surface, while FIG. 4B (right figure) is treated for 30 seconds with a MFHCP DBD plasma. The circle on the right figure shows the approximate footprint of the electrode of the cold plasma DBD plasma. Complete sanitation occurs within the electrode footprint and >5 log reduction (greater than a 100,000 reduction) occurs in the margins of the plate.
As discussed above, food allergens are primarily composed of specific proteins and are a major concern in the food industry. There are no published studies examining the effects of cold plasma treatments on specific allergens. However, there are encouraging studies demonstrating the ability of cold plasmas to denature proteins, including prions, which are notoriously difficult to destroy, as well as gram-negative bacterial endotoxin. When a protein is denatured, it undergoes a change of shape. If this shape change occurs at specific binding sites, important enzymes and immune related histamines may be unable to bind to, or recognize, the protein. FIG. 5 shows the results of a preliminary test indicating that cold plasma technology has the ability to denature proteins. A test was conducted using a green fluorescent protein (GFP) that has a natural fluorescence. If the protein is denatured, it loses its fluorescence, which is easy to quantify with standard spectral techniques. Ten 100 μliter samples of GFP were plated into wells and treated for 30 seconds with a cold plasma. The GFP fluorescence was measured using a spectrophotometer, before and after the treatment. There are four types of samples illustrated in FIG. 5. The first set 510 of samples are untreated samples with a measured fluorescence of 15,000,000 relative fluorescence units (RFU). The second set 520 of samples are cold plasma treated samples with a measured fluorescence of approximately 5,000,000 relative fluorescence units (RFU). The third set 530 of samples are the initial control samples with a measured fluorescence of 15,000,000 relative fluorescence units (RFU). Finally, the fourth set 540 of samples are the control samples exposed to atmospheric conditions for a similar time as second set 520 was exposed to cold plasma, with a measured fluorescence of approximately 13,000,000 relative fluorescence units (RFU). The initial results show a dear decrease in the protein's fluorescence after cold plasma treatment and confirm that cold plasma may be useful for the destruction of allergen proteins.
As discussed above and demonstrated in FIG. 4, a MFHCP electrode device has been developed for the effective sanitation of surfaces, in accordance with an embodiment of the present invention. FIGS. 6A and 6B illustrate one of these devices generating a sustained plasma discharge between the electrode and a human finger, in order to demonstrate the non-thermal properties of this plasma. This electrode uses a simple and cost effective construction consisting of a length of metallic tubing shrouded in a dielectric coating. In this embodiment, a length of copper pipe 25 cm long forms the central electrode and a common heat shrink material is used as the dielectric covering. The dielectric barrier surface could be made of polytetrafluoroethylene (PTFE), delrin, polyethylene (PE), polypropylene (PP), quartz, glass, or other dielectric materials known to one skilled in the art. With any underlying electrode of sufficient capacitance to support the dielectric discharge.
FIGS. 6A and 6B illustrate a cold plasma surface treatment DBD electrode device, in accordance with an embodiment of the present invention. In this particular embodiment, the electrode is implemented in the form of a cylinder. FIGS. 6A and 6B illustrates DBD electrode device 610 in close proximity to a finger 620 and a resulting plasma 630. The illustration of FIGS. 6A and 6B show plasma auctioning around the margin and at the radius of curvature of the cylindrical electrode. As aforementioned, the cross section of the electrode does not need to be cylindrical, and could be polygonal or planar. Any conductive surface coated in an appropriate dielectric material will sustain a plasma discharge when powered by the MFHCP power supply.
FIG. 7 illustrates a DBD electrode 720 of approximately 25 cm in length placed in close proximity to a piece of food-grade nitrile belt material 730 (2.3 mm thick) and the resulting cold plasma 710 that is generated along the entire length of DBD electrode 720. In FIG. 7, cold plasma 710 between nitrile food conveyor surface 730 is a purple glow (shown as cross-hatched) that is visible along the full length of the 25 cm DBD electrode 720. One difficulty with DBD plasmas is getting them to arc to non-conductive surfaces, such as nitrile, vinyl, and rubbers. By placing a ground potential on the opposite side of a non-conductive surface, the MFHCP DBD is able to create plasma discharge along the entire length of the electrode, even when the ground potential is on the opposite side of a thick non-conductive surface.
The 25 cm length is exemplary of a length of DBD electrode suitable for use in applications such as the food processing industry. Longer lengths are also within the scope of embodiments within this disclosure. For example, MFHCP DBD electrodes have been tested that generate up to eight (8) linear feet of non-thermal plasma from a single power source. No upper bound is yet known as to the number of linear feet that can be generated when using a multi-frequency harmonic-rich power source. FIG. 8 represents this same phenomenon graphically for additional clarity, since photographing the plasma discharge and test set-up is challenging due to the low ambient light required to visualize the plasma corona.
The multi-frequency approach to plasma generation (as described in other patent applications by the inventors, such as U.S. Provisional Patent Application No. 60/913,369, U.S. Non-provisional application Ser. No. 12/038,159 (that has issued as U.S. Pat. No. 7,633,231) and the subsequent continuation applications (collectively “the '369 application family”), which are incorporated by reference) allows for the configuration of these large electrode sizes and thick dielectric material treatments because each frequency imparted to the electrode has a different breakdown potential to initiate a discharge. Therefore, discharges occur at different temporal and spatial locations along the entire electrode when it is charged to a desired voltage, generally between 10-25 kV, or approximately 15 kV, but may be as high as 50 kV. A cold plasma device utilizing this multi-frequency cold plasma technology could be used to sanitize/disinfect/sterilize food contact surfaces and food handling and packaging equipment without heat or hazardous chemicals.
FIG. 8 illustrates a cylindrical electrode 810 applied to a flat substrate 820 that is representative of a food transport belt, in accordance with an embodiment of the present invention. Note the mantle of plasma 850 generated along the margins of the electrode. Note also the plasma 840 along the radius curve of electrode 810 at its distal end 830.
The key element remaining for effective utilization of a DBD cold plasma in food processing facilities for the continuous sanitation of food transport surfaces is the provision of an array of plasma electrodes that can provide adequate contact time to achieve sanitation at the belt speeds normally encountered in food handling operations. As belt speed increases, the number of electrodes in an array will need to increase and the spacing between the electrodes may need to decrease.
As noted above, grounding elements may be used in conjunction with an MFHCP device. For example, in food transport belt embodiments and other embodiments, one or more grounding elements may be used in conjunction with the MFHCP devices to tailor the cold plasma plume to a particular shape, contour or region. Confining the cold plasma plume to a particular shape, contour or region ensures improved effectiveness by directing as much of the available cold plasma to the treatment region desired. Grounding elements may be composed of suitable materials that can influence the shape of the plasma plume, including conductive materials. In various embodiments, grounding elements may take on any shape appropriate to the desired treatment region. In one embodiment, the conveyor belt can be grounded and therefore can function as the ground for the DBD plasma generated by, the device.
FIG. 9 illustrates a plasma sanitation module 900, in accordance with an embodiment of the present invention. The plasma sanitation module 900 may include a variable-speed conveyor system, e.g., food transport conveyor 910. The plasma sanitation module may further include a number (e.g., 40) of electrodes 940 of appropriate length (e.g., the full width of the conveyor, which is typically less than the 244 cm previously achieved with this device), similar to the one illustrated in FIG. 7. Each electrode 940 is coupled to its respective 930 RF/high voltage feed cable. Custom brackets and housings can be created for different manufacturers and styles of conveyor systems to allow the plasma sanitation module 900 to be retrofitted to existing processing equipment. The plasma sanitation module can be affixed by a bracket 920 to the underside of the food transport conveyor 910 so that the plasma does not interact directly with food products. This will sanitize the belt after it has unloaded a product at the end of its run, but before it returns to pick up additional food items. In this way, cross-contamination between one infected item and the next item to contact the belt in the same location will be eliminated. Such a plasma sanitation module 900 provides a substantial technical sanitation contribution, with a global impact on improved food safety.
Still referring to FIG. 9, the electrodes 940 in the plasma sanitation module 900 have been tested on bacterial samples, with excellent results. FIG. 9 illustrates how an array of these electrodes 940 may be assembled into a single housing that can be retrofitted to the underside of existing food transport conveyors. The power source (not shown) can be located remotely from the plasma sanitation module, as shown by the high voltage RF feed cables 930. The high voltage RF feed cables 930 are preferably powered by a MFHCP universal power supply as previously referenced.
In one embodiment, a frame is included that is designed to hold a single DBD element, or array of DBD elements, in close proximity to a food conveyor belt as illustrated in FIG. 9). In a particular embodiment, the framed DBD device would be located on the discharge end of the conveyor system, distal to the return idler or tail pulley, to allow time for bacterial kill and the dissipation of any reactive species, after bacterial reduction with the DBD plasma, before the conveyor again comes into contact with food items. The DBD device could be manufactured to meet the same design specification (e.g., consistent with the rail width of the conveyor belt system) as the particular food preparation surface (e.g., stationary food contact surface, food conveyor belt) that it is being paired to in order to ensure full coverage of the conveying surface. In applications with multiple/converging conveyors joined into a single system of production, a Dutchman, an intermediate bed, spur section, or food processing/transport systems utilizing crossovers, each belt could be supplied with its own cold plasma DBD food conveyor system belt sanitation device.
The MFHCP DBD food contact surface system sanitation device would contain a high voltage power supply and a dielectric barrier discharge surface that can be brought into direct contact with the underside of the food conveyor belt. In certain embodiments, the output signal would be a low duty cycle DC sine wave function with harmonic components similar to the devices described, for example, in U.S. patent application Ser. No. 13/620,118, which is incorporated by reference. Various embodiments may have similar form factors, with possible differences in the number of DBD units attached to the conveyor system.
FIG. 10 illustrates a side view of a food conveyor DBD array highlighting the grounding element assembly which can be mounted to the DBD device carrier on an adjustable mount allowing for the entire rig to be adjusted to surround a food contact surface area 1070. Food contact surface area 1070 may be placed between grounding element assembly 1020 and DBD device carrier assembly 1060. A height adjustable ground bracket 1030 serves to provide the appropriate amount of separation between element assembly 1020 and DBD device carrier assembly 1060. Grounding element assembly 1020 includes a number of grounding elements 1010. Grounding elements 1010 may take any shape (e.g., rod) that is appropriate for the particular application. DBD device carrier assembly 1060 includes a number of DBD elements 1040. DBD elements 1040 may take any shape (e.g., cylindrical rod) that is appropriate for the particular application. Each DBD element 1040 is coupled to a high voltage feed cable 1050. Since the contact surface may be of a dielectric nature, the grounding element assembly allows for the plasma to be transferred to the target substrate.
The DBD device carrier could also be a combination device fitted with fluorescent bulbs that produce specific wavelengths of UV light to enhance the sterilization process. A parabolic mirror element could accompany the fluorescent bulbs mounted to the distal side of the carrier in order to more fully and evenly distribute the UV light, while reducing the loss of light to the surrounding area, as shown in FIG. 10 of the disclosure “Method and Apparatus for Dielectric Barrier Discharge Wand Cold Plasma Device,” U.S. Provisional Application No. 61/747,828 filed Dec. 31, 2012.
FIG. 11 illustrates an embodiment of a DBD device 1100 having a two-part construction of a DBD array 1110 and a grounding element assembly 1120 that can be placed on the opposing side of the treatment substrate to facilitate the flow of the non thermal plasma to the food contact surface being sterilized or sanitized. DBD electrode array 1110 includes one or more DBD electrodes 1150, with each DBD electrode coupled to an RF feed cable 1140. Grounding element assembly 1120 includes one or more complementary grounding elements. Adjustable mounting bracket 1130 forms a portion of supporting assembly 1120.
contacting a target substrate with a multi-frequency harmonic-rich cold plasma over an effective area for an effective amount of time to kill or reduce a microbiological pathogen, or denaturing a protein, in a food processing system, wherein the cold plasma is generated by a scalable cold plasma device capable of providing cold plasmas having dimensions from 25 cm through to at least 8 linear feet.
2. The method of claim 1, wherein the contacting the target substrate includes contacting a conveyer belt in the food processing system.
3. The method of claim 2, wherein the contacting the conveyer belt occurs when the conveyer belt is on its return path following conveyance of food.
4. The method of claim 1, wherein the contacting the target substrate includes using the multi-frequency harmonic-rich cold plasma produced by a dielectric barrier discharge (DBD) electrode device.
5. The method of claim 1, wherein the contacting the target substrate includes using the multi-frequency harmonic-rich cold plasma produced by an array of DBD electrode devices.
6. The method of claim 1, wherein the contacting the target substrate includes using the multi-frequency harmonic-rich cold plasma produced by an atmospheric pressure plasma jet device.
7. The method of claim 1, wherein the contacting the target substrate includes using the multi-frequency harmonic-rich cold plasma produced by an array of atmospheric pressure plasma jet devices.
8. The method of claim 1, wherein the contacting the target substrate with a multi-frequency harmonic-rich cold plasma includes using a DBD electrode device having an electrode length longer than 25 cm, or the effective area is in excess of 5 sq. cm.
using a grounding assembly configured with the scalable cold plasma device to surround a food contact surface area.
using a frame configured to support the scalable cold plasma device and to direct the cold plasma to food processing equipment.
providing the scalable cold plasma device with an electrical voltage having two or more harmonic frequencies using a cold plasma power supply coupled to the scalable cold plasma device.
12. The method of claim 1, wherein the contacting the target substrate includes contacting food.
using a grounding assembly configured with the scalable cold plasma device to surround a food contact surface area, the grounding assembly having a shape associated with a particular application.
14. The method of claim 1, wherein the contacting the target substrate with the multi-frequency harmonic-rich cold plasma over the effective area for the effective amount of time includes using the effective amount of time sufficient to achieve sanitation at a conveyor belt speed in a food handling operation.
15. The method of claim 1, wherein the contacting the target substrate includes using the multi-frequency harmonic-rich cold plasma produced by a DBD electrode device, the DBD electrode device having an electrode of length at least 25 cm.
16. The method of claim 1, wherein the contacting the target substrate with the multi-frequency harmonic-rich cold plasma includes using a multi-frequency harmonic-rich cold plasma having a length of at least 8 linear feet generated from a single cold plasma power source.
using one or more grounding elements configured to tailor the multi-frequency harmonic-rich cold plasma to a predetermined shape, contour or region.
18. The method of claim 2, wherein the contacting the conveyer belt includes contacting a variable speed conveyer belt.
19. The method of claim 2, wherein the contacting the conveyer belt includes contacting a conveyer belt comprising a non-conductive surface.
20. The method of claim 4, wherein the DBD electrode device comprises a metallic tube shrouded in a dielectric coating.
21. The method of claim 20, wherein the dielectric coating comprises polytetrafluoroethylene (PTFE), delrin, polyethylene (PE), polypropylene (PP), quartz, or glass.
22. The method of claim 4, wherein the DBD electrode device includes an electrode having a cross-sectional shape that comprises a circular shape, polygonal shape or a planar shape.
contacting the target substrate with ultraviolet light from a fluorescent bulb.
24. The method of claim 1, wherein the multi-frequency harmonic-rich cold plasma results from a power supply that provides electrical energy across a multitude of frequencies to the scalable cold plasma device.
Banu, et al., "Cold Plasma as a Novel Food Processing Technology," International Journal of Emerging trends in Engineering and Development, Issue 2, vol. 4, ISSN 2249-6149, pp. 803-818, 16 pages. (May 2012).
Dumé, Belle, "Cold Plasmas Destroy Bacteria," article, [online], [retrieved on Jan. 5, 2007], Retrieved from the PhysicsWeb website using Internet .
Gould, Phillip and Eyler, Edward, "Ultracold Plasmas Come of Age," article [online], [retrieved on Jan. 5, 2007], Retrieved from the PhysicsWeb website using Internet .
International Search Report issued Apr. 14, 2014 for Appl. No. PCT/US2013/074437, 3 pages.
Lamba, Bikram, "Advent of Cold Plasma," article, [online], [retrieved on Jan. 5, 2007], Retrieved from the PhysOrg.com website using Internet .
Liu et al., "Sub-60°C. atmospheric helium-water plasma jets: modes, electron heating and downstream reaction chemistry," J. Phys. D: Appl. Phys. 44 345203, 13 pages, IOP Publishing Ltd. (Aug. 11, 2011).
Misra et al., "Nonthermal Plasma Inactivation of Food-Borne Pathogens," School of Food Science and Environmental Health at Dublin Institute of Technology, 32 pages (2011).
Pei et al., "Inactivation of a 25.5 mum Enterococcus faecalis biofilm by a room-temperature, battery-operated, handheld air plasma jet," J. Phys. D. Appi. Phys., 45 165205, 5 pages, IOP Publishing Ltd (Apr. 4, 2012).
Pei et al., "Inactivation of a 25.5 μm Enterococcus faecalis biofilm by a room-temperature, battery-operated, handheld air plasma jet," J. Phys. D. Appi. Phys., 45 165205, 5 pages, IOP Publishing Ltd (Apr. 4, 2012).
Schultz, James, "Cold Plasma Ignites Hot Applications," article, [online], [retrieved on Jan. 5, 2007], Retrieved from the Old Dominion University website using Internet .
Written Opinion of the International Searching Authority issued Apr. 14, 2014 for Appl. No. PCT/US2013/074437, 4 pages.

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Since its passage 45 days after the Sept. 11, 2001, terrorist attacks, the USA Patriot Act has been a lightning rod for controversy. It has taken center stage in a vigorous debate over the proper balance between national security and individual liberty.
Congress approved the Patriot Act by an overwhelming margin shortly after the infamous terrorist acts. The House voted 357-66 in favor of the measure, while the Senate voted 98-1 with only Sen. Russ Feingold, D-Wis., dissenting. President Bush signed the behemoth bill into law on Oct. 26, 2001. The name of the act perhaps helped ensure its easy passage; USA PATRIOT stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.
The massive law, 342 pages long, amends at least 15 separate federal laws, including the Foreign Intelligence Surveillance Act of 1978, the Electronic Communication Privacy Act of 1986, the Computer Fraud and Abuse Act and the Family Education Rights and Privacy Act.
The law permits roving wiretaps and so-called “sneak and peek” warrants, adds new terrorist crimes, knocks down the wall between foreign and domestic intelligence, amends the definition of domestic terrorism and makes many other changes too numerous to catalog.
Most of the criticism of the Patriot Act concerns its seeming infringements on Fourth Amendment rights. The Fourth Amendment prohibits government officials from engaging in “unreasonable searches and seizures.” Normally, the Fourth Amendment requires law enforcement officials to obtain a warrant based on probable cause before searching a person’s home. The standards are relaxed under FISA if the subject is suspected of being, say, a foreign spy. The Patriot Act lowers those standards even more.
As time passed, more members of Congress also objected to certain provisions of the law. This criticism led to modifications of several provisions. At the same time the executive branch and some legislative leaders called for a strengthening of some provisions. They also called for certain provisions in the Patriot Act that were set to expire at the end of 2005 to be made permanent.
Though most objections to the Patriot Act center on the Fourth Amendment, some critics contend that the act also intrudes deeply on fundamental First Amendment rights. The ACLU filed a lawsuit in July 2003 on behalf of six groups, several of which provide some form of support to Muslims in America, challenging Section 215 of the Patriot Act. In Muslim Community Association of Ann Arbor v. Ashcroft, the plaintiffs contended that Section 215 violates the First Amendment.
Previously, the FBI could only obtain business records from vehicle rental agencies, transport services, storage facilities and similar places. Now, Section 215 allows the government to obtain “any tangible things,” which can include business records and individuals’ library records, health-care records, logs of Internet service providers and other documents and papers.
Section 215 also provides for judicial oversight of all FBI requests for such information. But there is a big dispute between the government and civil liberties advocates over how the language of the act on this point should be interpreted.
“Upon application … the judge shall enter an ex parte (in the interest of one side only) order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section” (50 USC 1861 — at (c)(1)).
The requirements presumably would include the provision that “such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution” (50 USC 1861 — at (a)(1)), as mentioned above.
However, according to the ACLU, the FISA court merely rubber-stamps all requests because all the FBI has to show is that the records are sought for an authorized investigation. The wording of the law appears to allow for more discretionary review than suggested by the ACLU, but it is safe to say that the standards for allowing release of information are minimal. A judge who reviews an application has less room to reject the request than in other situations. There is no requirement for a showing of probable cause, meaning the FBI does not have to show any reason that it believes the target of the surveillance order is engaged in criminal or terrorist activity. That person could be innocent.
Section 215 also provides: “No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.” This gag order would prevent a library, for example, from ever notifying its patrons that the government has requested information from it under Section 215.
The government filed a motion to dismiss the Section 215 case, contending the plaintiffs lacked standing to challenge the section. Arguments were heard in December 2003 before U.S. District Judge Denise P. Hood in the Eastern District of Michigan.
Hood gave the plaintiffs 30 days to decide whether they would like to amend their original complaint to challenge the constitutionality of the new version of Section 215. On Oct. 27, 2006, the ACLU announced that it would withdraw its lawsuit over Section 215.
The ACLU spent six years bringing another case related to Section 215 to its conclusion in 2010, again winning moderate concessions from the government.ACLU v. Ashcroft saw the ACLU sue on behalf of “John Doe,” who had received a seemingly indefinite gag order after a National Security Letter (NSL) forced him to disclose a client’s records. After numerous appeals, John Doe was given the right to reveal his name as Nicholas Merrill, but was still required to remain mum on the nature of the disclosure. The U.S. district court also released a less-redacted version of the original NSL.
In a coordinated effort in October 2011, the ACLU in New York and the Electronic Frontier Foundation in Florida filed separate lawsuits over data collection under the Patriot Act. Both lawsuits seek to require the Department of Justice and the FBI to release all information requests allowed under Section 215 of the Patriot Act.
Another provision of the Patriot Act broadened the definition in federal law of providing “material support or resources” to terrorist organizations. That provision, Section 805(a)(2)(B), added “expert assistance or advice” to the definition of “material support” to terrorists.
The plaintiffs argued that the ban on “expert advice and assistance” was unconstitutionally vague and could bar protected First Amendment activity, such as assisting one of the groups in petitioning the United Nations, providing legal assistance in negotiating peace agreements or advising on international law. In March 2004 in Humanitarian Law Project v. Ashcroft, U.S. District Judge Audrey B. Collins agreed that the “expert advice and assistance” language was too vague.
Another key dispute was Holder v. Humanitarian Law Project, the only Patriot Act case yet argued before the Supreme Court. In June 2010, the Court ruled in the government’s favor, rejecting First Amendment and other constitutional challenges by a 6-3 vote. The Court held that the government could prohibit giving even training or advice on peaceful activities to designated terrorist groups, a finding that Humanitarian Law Project President Ralph Fertig called “Earth-shattering” in an e-mail to the First Amendment Center.
Another Patriot Act provision that has led to federal court challenges is Section 505, which expands the FBI’s authority to issue National Security Letters demanding customer records from businesses. Before Section 505 took effect, the FBI could issue NSLs only on those suspected to be terrorists or foreign spies. Now, according to the ACLU, the FBI could use its powers to obtain information on anyone. Similar to Section 215, Section 505 also prohibited businesses or individuals who received requests under the section from disclosing that fact to anyone. Critics charge that this gag-order provision violates First Amendment rights.
Two ACLU lawsuits alleged that the FBI’s NSL powers, as amended by Section 505 of the Patriot Act, violate the First Amendment by giving the agency the power to force the disclosure of sensitive, personal information without adequate safeguards.
In Doe v. Gonzales (2005), U.S. District Judge Janet Hall in Connecticut lifted a gag order imposed on librarians who had received a National Security Letter from the FBI asking for records from a library computer.
The government appealed both decisions to the 2nd U.S. Circuit Court of Appeals. On May 23, 2006, a three-judge panel issued its opinion in Doe v. Gonzales, which dealt with both the New York and Connecticut cases.
The 2nd Circuit remanded the New York case back to the federal trial court, noting that Section 505 had been substantially amended by the USA Patriot Improvement and Reauthorization Act of 2005. “The Reauthorization Act has substantially shifted the legal footing on which Doe I stands,” the court wrote. The appeals court asked that the trial court conduct a First Amendment analysis of the revised version of National Security Letters provision.
As for the lawsuit from Connecticut, the 2nd Circuit determined that the case was moot because the government had conceded that the librarians could reveal their identities.
In another case connected to Section 505, the 2nd U.S. Circuit Court of Appeals ruled in Doe v. Mukasey (2008) that the FBI must seek the review of a federal court when the agency orders Internet service providers to keep secret its demands for information. Still, the ruling was a partial victory for the government because it kept the nondisclosure provisions intact as long as the government initiates the review.
In June 2012, the Justice Department revealed for the first time all nine of the versions of national security letters it issues. The requests range from basic information about the address and length of service for Internet or phone service accounts to full billing or transactional records. The number of NSLs issued yearly by the FBI, according to the Department of Justice, has ranged in the tens of thousands since the passing of the Patriot Act, peaking at 56,507 in 2004 before dropping to 16,511 in 2011. A December 2010 letter from Attorney General Eric Holder to Sen. Patrick Leahy asserts that recipients of NSLs have been told since 2009 of their right to challenge the built-in gag order, but that only a handful have actually done so.
The ACLU has filed a series of lawsuits and motions against the Foreign Intelligence Surveillance Court (FISC), which is charged with approving orders for electronic surveillance and physical searches for the “purpose of obtaining foreign intelligence information” on foreign nationals within the United States. The ACLU says it is trying to bring more transparency to an extremely opaque organization.
In December 2007, the ACLU filed a motion in FISC for the release of court orders and government pleadings related to a National Security Agency surveillance program that had been conducted without the authorization of the FISC. The court agreed that it had jurisdiction over the documents, but refused to release them, asserting that there was neither a tradition of public access for releasing FISC surveillance materials nor logical benefit to the public that would outweigh damage to national security.
The ACLU filed another motion seeking to participate in FISC proceedings concerning its oversight role in regards to a 2008 amendment to the Foreign Intelligence Surveillance Act. That enabled, within strict limits, the targeting of non-U.S. citizens outside the United States in order to acquire intelligence information. In December, the FISC denied opening its records to the ACLU for the same reasons as in the 2007 decision. It also denied the ACLU’s participation in the proceedings on the grounds that the group could offer no meaningful assistance and that appropriate oversight mechanisms were already in place.
S. 1125 – USA PATRIOT Act Improvements Act of 2011 (introduced May 26, 2011, by Sen. Leahy).
The Justice Department drafted another bill, the Domestic Security Enhancement Act of 2003. Copies of the so-called Patriot II measure were leaked, which led to widespread opposition. The proposed Patriot II contained many provisions that caused alarm among free-speech and privacy advocates. For example, under the measure, federal agents would not need a subpoena to obtain consumer credit records. Under current law, they do need a subpoena. The measure would have provided less public access to information about terrorist detainees and related investigations. Amid the outcry over such provisions, the Patriot II measure was never formally introduced in Congress.
The Security and Freedom Ensured Act of 2003, or SAFE, sought to amend some of the more controversial provisions of the Patriot Act. This bill, which had bipartisan support, would have amended Section 215 by requiring the FBI to have “specific and articulable facts” connecting records to a foreign agent. In April 2004, Sen. Craig said in Congress: “I am not seeking to repeal any provision of the Patriot Act but rather to salvage it by making necessary, albeit minor, amendments to it in order to safeguard individual liberties while preserving the very important law enforcement authorities it grants.” The measure failed.
In 2005, a revised version of the SAFE Act and the USA Patriot and Terrorism Prevention Reauthorization Act of 2005 (H.R. 3199) were introduced. The latter bill, signed into law in March 2006, like the SAFE Act, modified some of the Patriot Act’s controversial provisions. However, it also made permanent several other provisions of the original Patriot Act. The act represented a compromise measure of sorts between those who wanted to extend and expand the provisions in the Patriot Act and those who wanted to modify them.
Many state and local legislative bodies have pushed back against the Patriot Act, passing resolutions in opposition to the law. DiscoverTheNetworks.org puts that number at 414 communities across 43 different states. Alaska, California, Colorado, Hawaii, Idaho, Maine, Montana and Vermont have all passed statewide resolutions, according to the ACLU.
The opposition did not stop Congress from renewing most provisions of the Patriot Act in March 2006. Section 224 had provided that several provisions of the act would expire unless Congress renewed them.
Later that month, President Bush signed into law the reauthorization law that made many provisions of the Patriot Act permanent. It extended the sunset period of the controversial Section 215 for four more years. Perhaps because of widespread opposition to parts of the law, the act also included many provisions designed to ensure a level of civil liberties protections.
In May 2011, President Barack Obama approved a four-year extension of several provisions of the Patriot Act. One of these is the controversial Section 215. Todd Hinnen, acting assistant attorney general for National Security,testified before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, in March 2011: “Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like. It has never been used against a library to obtain circulation records.” Despite this reassurance, the measure remains controversial as some believe it is ripe for abuse.
The debate over how to properly calibrate the balance between security and liberty will never end, particularly in this age of global terrorism and weapons of mass destruction. The Sept. 11 terrorist attacks showed that government leaders must act to ensure that we can protect our nation from al-Qaida and other terrorists. However, many believe that the government must not sacrifice civil liberties in the well-meaning efforts of increased security.
Many people believe that government officials have encroached on individual liberty by passing the Patriot Act and subsequent expansions and amendments out of well-meaning motives — to combat the undoubted evils of terrorism. However, questions persist as to whether at least some of these provisions were undertaken with a proper understanding of the Constitution and the First Amendment.

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In Fuhr v. Trinity Health Corp., et al., Supreme Court No. 147158, the Michigan Supreme Court peremptorily reversed the Court of Appeals decision to affirm denial of summary judgment to the defendants (hospital) in a Whistleblower’s Protection Act (WPA) lawsuit filed by a former employee. The plaintiff alleged he was terminated because of a call he placed in mid-April 2010 to the office of the U.S. Attorney lodging a complaint about potential theft and/or overbilling by a vendor with respect to inventory in the hospital’s surgery department.
Plaintiff testified at his deposition to a conversation he had during his termination in which he was told he was being terminated because of the call he placed to the U.S. attorney’s office. This formed the basis of plaintiff’s cause of action under the WPA. However, the record established plaintiff was made aware of his eventual termination before the call he placed, and, moreover, that the reason for plaintiff’s firing had to do with performance issues and complaints about perceived favoritism. Thus, the plaintiff’s deposition, which was based on the hearsay statement of the employer’s representative was self-serving, and, in any event occurred well after he was terminated. E-mail correspondence from plaintiff to his employer upon his termination also demonstrated plaintiff had inquired about the reason for his termination, and it made no mention of the call to the U.S. attorney.
The trial court denied the employer’s motion for summary disposition, finding the plaintiff’s deposition testimony (which was unsupported by any other record evidence) was sufficient to withstand summary judgment and bring the case to a jury.
The Court of Appeals affirmed in a 2-1 decision: Fuhr v. Trinity Health.COA.Opn. In dissent, Judge Talbot argued plaintiff’s self-serving affidavit was blatantly contradicted by the record to an extent that no reasonable juror could believe it. Therefore, Judge Talbot urged the denial of summary disposition was error.
Citing the U.S. Supreme Court’s decision in a Fourth Amendment case, Scott v. Harris, 550 U.S. 372 (2007), which lays out the standard of review and disposition for summary judgment motions under Federal Rule of Civil Procedure 56(c) in a 42 U.S.C. section 1983 excessive force lawsuit brought against the government, Judge Talbot noted the Supreme Court stated: “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary disposition.” Judge Talbot continued: Under those circumstances, a “genuine” issue of material fact simply does not exist. Slip Op. at 1, Judge Talbot, dissenting.
Judge Talbot goes over the facts of the case and demonstrates that plaintiff never averred he was terminated after he contacted the U.S. attorney’s office until his deposition, at which he recounted the conversation he had with the employer, which was based on hearsay statements of the employer’s representative. Moreover, plaintiff had e-mailed his employer after his termination stating he had not been given a reason for his termination.
This order is binding precedent for future cases. More importantly, however, it establishes an important affirmation of the standard of review and the means by which opposing affidavits, deposition testimony, and other “evidence” is to be measured against a record that points to a factual bases for the underlying events in a lawsuit other than those alleged in the plaintiff’s complaint.
It is noteworthy, as well, that Judge Talbot cites Scott v. Harris, the Supreme Court’s seminal case addressing the summary judgment standard applicable in excessive force cases brought against law enforcement officers under 42 U.S.C. section 1983. All that is required for summary judgment is a record that demonstrates law enforcement officers acted in an objectively reasonable manner. This determination cannot be made from the perspective of hindsight, but rather with reference to the facts and circumstances surrounding the officer at the time he or she made the decision to act as he or she did. Thus, where a record establishes that the actions and conduct engaged in by law enforcement officers was “objectively reasonable under the circumstances” and at the time the officers chose to act, the officer is entitled to qualified immunity, even if in hindsight his or actions may not have been justified.
Unfortunately, many federal courts (and Court of Appeals panels) deem the priority of believing all of a plaintiff’s “allegations” as fact overrules the important principle established by the Supreme Court in Scott and in many cases addressing the rule 56(c) standard for summary judgment prior to Scott, such that these particular courts believe if a plaintiff contradicts by post-act affidavit or deposition the record facts as established by the testimony and other evidence, the case against the officer should go to the jury.
Fortunately, in Michigan, as established by the case I argued and won in the Supreme Court, Odom v. Wayne County, 482 Mich. 489 (2008), the good faith standard applicable to a law enforcement officer’s actions in the heat of the moment is judged from a “subjective” standard and that means self-serving affidavits and deposition testimony submitted to “change” the material facts are not, or should never be, sufficient to survive a motion for summary judgment on the basis of immunity under Michigan’s court rule MCR 2.116(C)(7) and (C)(10), the state parallel to Federal Rule of Civil Procedure 56(c).
Judge Talbot understands this principle well as he was on a panel of the Court of Appeals in another excessive force case in which the Court of Appeals reversed the trial court’s denial of summary disposition for a deputy sheriff I defended, who was accused of unnecessarily shooting the plaintiff during a long, violent struggle between the plaintiff and four deputies who were attempting to arrest him. That case is Gentry v. Carmona, Unpublished Opinion of the Michigan Court of Appeals, dated October 11, 2011 (Docket No. 296580). There, the Court of Appeals relied on the precedent established by the Odom decision I secured to hold the deputy was entitled to judgment as a matter of law.
Hopefully, the federal courts will one day understand this principle as well and apply it as easily as the Michigan Supreme Court does here.
Gallery | This entry was posted in Comparative Law, County Sheriffs, Errors and Omissions, Federal Rules of Civil Procedure, Governmental Immunity, Insurance and Indemnity, Labor and Employment Law, Law Enforcement Issues, May It Please the Court, Michigan Court of Appeals Unpublished Opinions, Michigan Supreme Court Orders, Professional Liability, Public Corporations, Recent Judicial Dispositions, Whistleblower's Protection Act Claims and tagged employment law, evidence sufficient to survive summary judgment, excessive force, labor and employment, law enforcement immunity, self-serving affidavit, self-serving deposition, summary disposition standard, summary judgment standard, whistleblower's protection act, wrongful termination. Bookmark the permalink.

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UNITED STATES, Appellant, v. Roy FRUEHAUF et al.
See 365 U.S. 875, 81 S.Ct. 899.
Mr. S. Hazard Gillespie, Jr., New York City, for appellant.
Mr. Louis Nizer, New York City, for appellees.
'Despite the fact that there is the repeated use of the word 'loan' in the government's advance outline before the Court, caused by the fact that the government's case in large part is as asserted by these defendants as the trial will reflect as it proceeds, nevertheless the government's position on the loan, and I hope to make this clear as the trial progresses, is actually twofold.
'A loan, if your Honor please, is something that relates to a state of mind between the person who is receiving the money and the person who is giving the money, and again the repayment which actually occurred in this case is only one aspect of whether or not the transfer of funds between one party or from one party to another is actually a loan.
'The Court: Assuming that this case was tried and the Court was disposed to frame special interrogatories to the jury, and one of those interrogatories was, Was the transaction a loan, and the jury brought back the answer No: do you think the Court could allow that answer to stand on the basis of the facts as you have set them forth in your brief, or wouldn't the Court have to set aside the finding as being contrary to the evidence and the weight of the evidence?
'Mr. Guzzetta: Your Honor, in the context of the remarks I made after you read in open court my brief, I would say that that would not be an erroneous finding by them.
'The Court: In other words, your position is that despite the facts which you set forth this could be held to be not a loan? When I say the facts you set forth, I mean the facts in your memorandum.
'I am convinced that the language which I read into the record from the Government's brief is a judicial admission that this transaction was a loan. I have no doubt in my own mind at least, that in a trial either to the court or the jury, in a preliminary hearing where the defendants have not yet subjected themselves to jeopardy, if the Government established the facts which it recounted in its brief that it intended to prove, a finding by a jury to the contrary would have to be set aside, nor could the Court find to the contrary. Those facts, in my view, notwithstanding the qualifications attempted orally, and despite those qualifications and accepting those qualifications, those facts, in my view, establish that the transaction was a pure and simple loan.
We do not reach that question on this appeal. For we cannot but regard itabstracted as it has become, in the course of these proceedings, from the immediate considerations which should determine the disposition of appellees' motions to dismiss an indictment incontestably valid on its faceas other than a request for an advisory opinion. Such opinions, such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests, we have consistently refused to give. See Parker v. Los Angeles County, 338 U.S. 327, 70 S.Ct. 161, 94 L.Ed. 144; Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666; United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725; State of Arizona v. State of California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154.
Nor does the record raise questions concerning the sufficiency of the indictment which would require, in an appropriate case, that the case be sent to the Court of Appeals, pursuant to 18 U.S.C. 3731, 18 U.S.C.A. § 3731. For this is not a case in which the District Court has construed the allegations of an indictment, or limited the scope of the Government's presentation by construction of a bill of particulars or the prosecutor's opening statement. In the present case we cannot know with reference to what supposed factual circumstances the District Court attributed to the Government the admission that the Beck-Fruehauf-Seymour transaction constituted a 'loan.' Without spelling out in detail the diverse argumentative possibilities that underlie the judge's attribution of a 'loan' as an unequivocally defined concept to the Government, it suffices to say that experience in instances of similar unclarity under the Criminal Appeals Act counsels the wisdom of abstaining from reviewing construction of a criminal statute on so cloudy a record as is now before the Court. Compare United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992, with United States v. A. Schrader's Son, Inc., 252 U.S. 85, 40 S.Ct. 251, 64 L.Ed. 471.
The core of the difficulty in the present case is that the record does not preclude the Government from attempting to prove that the transaction in question came within the statutory ban by reason of any or all possible theories. Of course, an undertaking by counsel here, however honorable its impulse, cannot bind the Government in the future. And the District Court's ruling, insofar as it purports to close any avenues open to the Government under the indictmentnot in view of specifications made in a bill of particulars or an opening statement, but on the basis of a 'judicial admission' culled from a pretrial memorandumwas impermissible and constitutes an insufficient basis to justify the exercise of this Court's jurisdiction on direct appeal.
We do not think, however, that the purpose of Rule 15 of this Court, 28 U.S.C.A., under which the Government filed the Jurisdictional Statement which brought the case here, requires us to penalize the Government by dismissing this appeal, simpliciter. This Court has the power, expressly provided in 28 U.S.C. 2106, 28 U.S.C.A. § 2106, to 'vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and * * * remand the cause and * * * require such further proceedings to be had as may be just under the circumstances.' The exercise of that authority is appropriate here. The ruling dismissing the indictment is set aside and the case is remanded for trial upon this valid indictment. So ordered.
Dismissal of indictment set aside and case remanded.
The dismissal of the indictment in this case was placed squarely upon the district court's construction of a criminal statute. Specifically, the court ruled that a loan of money did not fall within the prohibition of § 302 of the Labor Management Relations Act of 1947 (before its amendment in 1959). In bringing the appeal directly here, the Government eliminated from the case any possible questions other than the correctness of the district court's construction of the underlying statuteto which this Court's jurisdiction is limited under the Criminal Appeals Act. 18 U.S.C. 3731, 18 U.S.C.A. § 3731. United States v. Keitel, 211 U.S. 370, 397398, 29 S.Ct. 123, 131, 53 L.Ed. 230; United States v. Patten, 226 U.S. 525, 535, 540, 33 S.Ct. 141, 142, 57 L.Ed. 333; United States v. Colgate & Co., 250 U.S. 300, 301, 306, 39 S.Ct. 465, 466, 63 L.Ed. 992; United States v. Borden Co., 308 U.S. 188, 192194, 60 S.Ct. 182, 185, 84 L.Ed. 181. '(I)n reviewing a direct appeal from a District Court under the Criminal Appeals Act, supra, our review is limited to the validity or construction of the contested statute. For 'The Government's appeal does not open the whole case." United States v. Petrillo, 332 U.S. 1, 5, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877.
I think the issue whether a loan of money came within the proscriptions of the statute is before us now and should be decided. I further think this is the only issue properly before us. However, since the Court thinks otherwise, I am persuaded that an expression of my views on the subject would not be appropriate.
It appears that Roy Fruehauf is President of Fruehauf Trailer Co., that Burge Seymour is President of Associated Transport, Inc., and that Brown Equipment and Manufacturing Co. is a wholly owned subsidiary of Associated Transport, Inc.
'(1) to any representative of any of his employees who are employed in an industry affecting commerce * * *'.
Count Two of the indictment charged that 'On or about the 21st day of June, 1954, * * * Dave Beck, * * * a representative of employees who were engaged in an industry affecting commerce * * * did unlawfully, wilfully and knowingly receive and accept and agree to receive and accept from (the several appellees of the Fruehauf-Seymour group), employers of the aforesaid employees, a thing of value, to wit, money, in the amount of $200,000.' Section 302(b), as it was in effect at the time of the transaction alleged, provided: 'It shall be unlawful for any representative of any employees who are employed in an industry affecting commerce to receive or accept, or to agree to receive or accept, from the employer of such employees any money or other thing of value.' The Labor-Management Reporting and Disclosure Act of 1959, § 505, amended the section to cause it to parallel the amended version of § 302(a), note 2, supra.
Lelia Mae SANKS et al. v. GEORGIA et al.
SOCIALIST LABOR PARTY et al., Appellants, v. John J. GILLIGAN, Governor of the State of Ohio, et al.


19-3507. Elections, voting places; election officer, duties; candidates for office, filing as; election procedure and cost; eligible voters. (a) The water district election shall be held in each election precinct, a part or all of which is located within such water district, except that if no other election is being held in a given election precinct on the same date as the water district election, the county election officer may provide one or more convenient voting places where the water district electors of such precinct may vote, which may be a voting place located in another precinct. The county election officer shall designate such voting places and the persons entitled to vote thereat in the election notice. The county election officer shall make a report in writing to the board of county commissioners of such election precincts and voting places, which report shall be filed with the county clerk of the county or counties in which such precincts and voting places are located and an entry thereof made upon the journal of the board or boards of county commissioners of such county or counties and if any change shall be made in such voting precincts and voting places by the county election officer, the same shall in like manner be reported to the board or boards of county commissioners, filed and entered as aforesaid. The polls for any election held under this act shall be open between the hours of 7 a.m. and 7 p.m.
(b) Any qualified person desiring to be a candidate for a position as a member of such board shall file a candidate's declaration of intention in the manner provided in K.S.A. 2018 Supp. 25-21a03, and amendments thereto, and K.S.A. 25-205, and amendments thereto, with the county election officer, indicating the number of the position for which such person is filing. No candidate shall be permitted to withdraw as a candidate after the deadline for filing such statements of candidacy. There shall be no primary election for members of the water district board. The county election officer shall publish names of all candidates in a newspaper of general circulation within the water district before such election in accordance with K.S.A. 25-209, and amendments thereto.
(c) Where the only election being conducted in an election precinct or voting place is the water district election, the cost of providing judges and clerks in such precinct or voting place shall be borne entirely by the water district, but where held in conjunction with other elections, the cost shall be prorated in the manner provided by article 22 of chapter 25 of the Kansas Statutes Annotated, and amendments thereto.
(d) At least five days before any election, the county election officers of the various counties within which a portion of such district is located, in cooperation with the water district board, shall determine the voting areas where no other elections will be held in conjunction with the water district and the names of all qualified electors residing in the water district and located in such precincts and shall determine the election precincts which contain only a part of the water district and the names of all qualified electors residing in the water district and in such election precincts. A list of the qualified electors determined as hereinbefore provided shall be furnished by the county election officer to the judges of the voting precincts or voting places where such electors are entitled to vote.
(e) Qualified electors of any election precinct, the entirety of which is within the water district, shall be entitled to vote in such precinct and a separate list of their names need not be furnished.
(f) A voter shall not be eligible to vote in any election precinct other than the one in which such person resides unless no election is being held in such precinct, in which event, such voter shall be entitled to vote in the voting place designated by the county election officer.
(g) Such list furnished by the county election officer to the judges of each precinct shall be conclusive at all elections, except that one desirous of voting, whose name does not appear on such list, may proceed to the county election officer of the county and such officer may administer oaths and affirm witnesses to determine the right of anyone to vote who may claim erroneous omission from such list, and if such officer issues a certificate entitling the voter to vote, such certificate shall be accepted by the judges and clerks of the election. The list so furnished by the county election officer shall be conclusive at all elections held within the same year that the list is furnished.
History: L. 1951, ch. 240, § 7; L. 1957, ch. 192, § 4; L. 1963, ch. 198, § 1; L. 1969, ch. 162, § 2; L. 1970, ch. 139, § 1; L. 1975, ch. 204, § 1; L. 1976, ch. 137, § 1; L. 1977, ch. 100, § 1; L. 1983, ch. 123, § 1; L. 1990, ch. 91, § 2; L. 2015, ch. 88, § 23; July 1.


text:
2. Prohibition against discontinuity. The insurer shall, for any person described in subsection 1, waive any medical underwriting or preexisting conditions exclusion to the extent that benefits would have been payable under the prior Medicare supplement policy and any earlier Medicare supplement policy if those policies were still in effect. This subsection does not require the succeeding insurer to pay any benefits that are not within the terms of coverage of the succeeding policy solely because they would have been paid by the prior policy.
2-A. Low-cost drugs for the elderly or disabled program.
3. Determination of benefits. When a determination of benefits under the prior policy is required, the issuer of the prior policy shall, at the request of the issuer of the succeeding policy, furnish a statement of benefits available or pertinent information sufficient to permit verification of the benefit determination or the determination itself by the issuer of the succeeding policy. For purposes of this section, benefits of the prior policy are determined in accordance with the definitions, conditions and covered expense provisions of that policy rather than those of the succeeding policy. The benefit determination must be made as if coverage had not been replaced.
4. Rulemaking. The superintendent shall adopt rules concerning guaranteed issuance and continuity of Medicare supplement policies for certain eligible persons. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter II-A.
1999, c. 36, §4 (NEW). 2001, c. 410, Pt. B, §7 (AMD). 2003, c. 157, §1 (AMD). 2005, c. 401, Pt. C, §7 (AMD). 2009, c. 244, Pt. A, §1 (AMD). 2013, c. 94, §1 (AMD).

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Comment: Defendants' summary judgment motion to dismiss this accident victim=s New York Labor Law claims in Brooklyn court is denied.
This accident victim was burned to death at work while refinishing a floor with polyurethane that was ignited by a halogen lamp. The Court holds that this was equal to "painting," one of the construction-related work categories protected by New York's Labor Law.
With the defense motion denied, the case goes forward to trial.
In an action to recover damages for personal injuries and wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated June 22, 2010, which granted the motion of the defendants S.P. Lenox Realty, LLC, Rubbro Realty Corp., R.S. Management, Ltd., and Larry Richards for summary judgment dismissing the cause of action alleging a violation of Labor Law Sec. 241(6) insofar as asserted against them.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants S.P. Lenox Realty, LLC, Rubbro Realty Corp., R.S. Management, Ltd., and Larry Richards for summary judgment dismissing the cause of action alleging a violation of Labor Law Sec. 241(6) insofar as asserted against them is denied.
As noted in our prior decision and order in this action (see Pittman v. S.P. Lenox Realty, LLC, 49 AD3d 621), the plaintiff's decedent (hereinafter the decedent) died after being severely burned when a halogen lamp ignited liquid that he was using to refinish the floors in an apartment in a building owned by the defendant S.P. Lenox Realty, LLC, and managed by the defendant Rubbro Realty Corp., formerly known as R.S. Management, Ltd., where the individual defendant, Larry Richards, worked as a superintendent at the building. These defendants (hereinafter collectively the defendants) moved for summary judgment dismissing the cause of action alleging a violation of Labor Law Sec. 241(6) insofar as asserted against them. In the order appealed from, the Supreme Court granted the motion.
Labor Law Sec. 241(6) "imposes a nondelegable duty of reasonable care upon owners and contractors "to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting all areas' in which construction, excavation or demolition work is being performed" (Rizzuto v. L.A. Wenger Constr. Co., 91 N.Y.2d 343, 348, quoting Labor Law Sec. 241 [emphasis added]). The scope of Labor Law Sec. 241(6) is governed by section 23-1.4(b)(13) of the Industrial Code (see Joblon v. Solow, 91 N.Y.2d 457, 466; Martinez v. City of New York, 73 AD3d 993, 997), which defines "construction work" to include all work "performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures" 12 NYCRR 23-1.4[b] [emphasis added] ).
The defendants failed to establish, prima facie, that the plaintiff was not engaged in a specifically enumerated activity under 12 NYCRR 23-1.4(b)(13). We have previously determined that the application of a protective coating to the roof of a building is the _functional equivalent_ of painting, which is a specifically enumerated activity under 12 NYCRR 23-1.4(b)(13) (see Cummings v. Vargo, 63 AD3d 1718; Artoglou v. Gene Scappy Realty Corp., 57 AD3d 460, 461; McGovern v. Fordham Hill Owners Corp., 173 A.D.2d 162; cf. Osorio v. Kenart Realty, Inc., 35 AD3d 561; Loreto v. 376 St. Johns Condominium, Inc., 15 AD3d 454; Aarons v. 401 Hotel, L.P., 12 AD3d 293). Under the circumstances of this case, the application of polyurethane to a wooden floor likewise was the functional equivalent of "painting." Since the defendants failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law, their motion should have been denied without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

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D.C. Law Library - § 31–704. Acquisitions involving insurers not otherwise covered.
↪ § 31–704. Acquisitions involving insurers not otherwise covered.
§ 31–703. Acquisition of control of or merger with domestic insurer.
§ 31–704. Acquisitions involving insurers not otherwise covered.
(1) “Acquisition” means any agreement, arrangement, or activity the consummation of which results in a person acquiring, directly or indirectly, the control of another person, and includes, but is not limited to, the acquisition of voting securities, the acquisition of assets, bulk reinsurance, and mergers.
(2) “Involved insurer” means an insurer that either acquires or is acquired, is affiliated with an acquirer or acquired, or is the result of a merger.
(b)(1) Except as provided in paragraph (2) of this subsection, this section applies to any acquisition in which there is a change in control of an insurer authorized to do business in the District.
(III) In no market would the combined market share of the involved insurers exceed 12% of the total market, and the market share increases by more than 2% of the total market.
(G) An acquisition of an insurer whose domiciliary state insurance commissioner or other appropriate official affirmatively finds that the insurer is in failing condition, there is a lack of a feasible alternative to improving the condition, the public benefits of improving the insurer’s condition through the acquisition exceed the public benefits that would arise from not lessening competition, and these findings are communicated by the domiciliary state insurance commissioner or other appropriate official to the Mayor.
(c)(1) An acquisition covered by subsection (b) of this section may be subject to an order pursuant to subsection (e) of this section unless the acquiring person files a preacquisition notification and the waiting period has expired. The acquired person may file a preacquisition notification. The Mayor shall give confidential treatment to information submitted under this subsection in the same manner as provided in § 31-708.
(2) The preacquisition notification shall be in the form and contain the information prescribed by the National Association of Insurance Commissioners relating to those markets which, under subsection (b)(2)(E) of this section, cause the acquisition not to be exempted from the provisions of this section. The Mayor may require any additional material and information the Mayor deems necessary to determine whether the proposed acquisition, if consummated, would violate the competitive standard of subsection (d) of this section. The required information may include an opinion of an economist as to the competitive impact of the acquisition in the District accompanied by a summary of the education and experience of such person indicating his or her ability to render an informed opinion.
(3) The waiting period required shall begin on the date of receipt by the Mayor of a preacquisition notification and shall end on the earlier of the 30th day after the date of the receipt or termination of the waiting period by the Mayor. Prior to the end of the waiting period, the Mayor, on a one-time basis, may require the submission of additional needed information relevant to the proposed acquisition, in which event the waiting period shall end on the earlier of the 30th day after receipt of the additional information by the Mayor or termination of the waiting period by the Mayor.
(d)(1) The Mayor may enter an order under subsection (e)(1) of this section with respect to an acquisition if there is substantial evidence that the effect of the acquisition may be to lessen substantially competition in any line of insurance in the District, or tend to create a monopoly therein, or if the insurer fails to file adequate information in compliance with subsection (c) of this section.
(iii) Another involved insurer’s market is 2% or more.
(i) “Insurer” includes any company or group of companies under common management, ownership, or control.
(ii) “Market” means the relevant product and geographical markets. In determining the relevant product and geographical markets, the Mayor shall give due consideration to, among other things, the definitions or guidelines, if any, promulgated by the National Association of Insurance Commissioners and to information, if any, submitted by parties to the acquisition. In the absence of sufficient information to the contrary, the relevant product market is assumed to be the direct written insurance premium for a line of business, the line being that used in the annual statement required to be filed by insurers doing business in the District, and the relevant geographical market is assumed to be the District.
(D) The burden of showing prima facie evidence of violation of the competitive standard rests upon the Mayor.
(E) Even though an acquisition is not prima facie violative of the competitive standard under subparagraphs (A) and (B) of this paragraph, the Mayor may establish the requisite anticompetitive effect based upon other substantial evidence. Even though an acquisition is prima facie violative of the competitive standard under subparagraphs (A) and (B) of this paragraph, a party may establish the absence of the requisite anticompetitive effect based upon other substantial evidence. Relevant factors in making a determination under this paragraph include, but are not limited to, the following: market shares, volatility of ranking of market leaders, number of competitors, concentration, trend of concentration in the industry, and ease of entry and exit into the market.
A highly concentrated market is one in which the share of the 4 largest insurers is 75% or more of the market. Percentages not shown in the tables are interpolated proportionately to the percentages that are shown. If more than 2 insurers are involved, exceeding the total of the 2 columns in the table is prima facie evidence of violation of the competitive standard in paragraph (1) of this subsection. For the purposes of this subparagraph, the insurer with the largest share of the market shall be deemed to be Insurer A.
(B) The acquisition will substantially increase the availability of insurance, and the public benefits of this increase exceed the public benefits which would arise from not lessening competition.
(B) Denying the application of an acquired or acquiring insurer for a license to do business in the District.
(C) The hearing is concluded and the order is issued no later than 60 days after the end of the waiting period. Every order shall be accompanied by a written decision of the Mayor setting forth findings of fact and conclusions of law.
(3) An order entered under this subsection shall not become final earlier than 30 days after it is issued, during which time the involved insurer may submit a plan to remedy the anticompetitive impact of the acquisition within a reasonable time. Based upon such a plan or other information, the Mayor shall specify the conditions, if any, under the time period during which the aspects of the acquisition causing a violation of the standards of this section would be remedied and the order vacated or modified.
(4) An order pursuant to this subsection shall not apply if the acquisition is not consummated.
(B) Suspension or revocation of the person’s license.
(6) Any insurer or other person who fails to make any filing required by this section, and who also fails to demonstrate a good faith effort to comply with any filing requirement, shall be subject to an administrative fine of not more than $50,000.
(f) Sections 31-709(b) and (c) and 31-711 do not apply to acquisitions covered under subsection (b) of this section.
This section is referenced in § 31-703.
The 2015 amendment by D.C. Law 20-235 repealed (b)(2)(A).