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BOARD OF INVESTMENTS, PETITIONER, VS. SR METALS, INC., RESPONDENT.
"The cardinal rule is that any decision or ruling promulgated by an administrative body must have something to support itself."
Before the Court is a Petition for Review on Certiorari filed under Rule 45 of the Rules of Court assailing the December 4, 2014 Decision and the August 11, 2015 Resolution of the Court of Appeals (CA), in CA-G.R. SP No. 131511.
Petitioner Board of Investments (BOI) is a government agency created under Republic Act (RA) No. 5186. It is an attached agency of the Department of Trade and Industry (DTI) and is the lead government agency responsible for the promotion of investments in the Philippines. Respondent SR Metals, Inc., on the other hand, is a corporation engaged in the business of mining in Tubay, Agusan Del Norte.
On April 3, 2008, respondent filed with petitioner an Application for Registration as a new producer of beneficiated nickel ore on a non-pioneer status in relation to its proposed Nickel Project.
On June 4, 2008, petitioner approved the application and issued Certificate of Registration No. 2008-113 in favor of respondent as a new producer of beneficiated nickel silicate ore/lateritic nickel ore on a non-pioneer status. Accordingly, respondent was granted an Income Tax Holiday (ITH) incentive under the Omnibus Investment Code for the period 2008 to 2012.
(3) [that respondent] applied for tax exemption x x x without informing or consulting the [M]unicipality of Tubay and the immediate stakeholders.
To prove its claims, the Sangguniang Bayan submitted to petitioner Certifications from the Municipal Engineer's Office, the Municipal Assessor's Office, and the Municipal Planning and Development Office attesting that respondent had no industrial building or processing plant declared under its name.
On April 11, 2011, petitioner issued a letter to respondent informing it of the Sangguniang Bayan's Resolution requesting for the cancellation of respondent's BOI registration. In the same letter, petitioner directed respondent to submit a reply within 15 days from receipt of the said letter.
In its Reply, respondent explained that it was a producer of beneficiated nickel/lateritic nickel ore; that it was registered as a new producer of beneficiated nickel silicate ore/lateritic nickel ore, and not as a beneficiation plant; and that consultation with the concerned local government was not required under the 2007 Investment Properties Plan (IPP).
(2) the Specific Terms and Conditions attached to respondent's Project Approval Sheet and Certificate of Registration, requiring respondent to submit a progress report on the implementation of the registered project and to adhere to a project timetable on the acquisition of machinery/equipment.
Respondent sought reconsideration, submitting a summary of the major equipment composing the beneficiation plant as well as a summary of machineries and equipment and the individual proofs of ownership of the machineries and equipment it had acquired.
(3) absence of another line and new investment in fixed assets.
Unfazed, respondent elevated the matter before the CA via a Petition under Rule 43 of the Rules of Court.
WHEREFORE, premises considered, the instant Petition for Review is Granted. The assailed resolutions of the [BOI] embodied in its letters dated May 24, 2012 and August 12, 2013 withdrawing the ITH entitlement of [respondent] are hereby ANNULLED and SET ASIDE.
Petitioner moved for reconsideration but the CA denied the same in its August 11, 2015 Resolution.
WHETHER X X X THE TERMS AND CONDITIONS OF RESPONDENT'S X X X PROJECT APPROVAL SHEET AND BOI [CERTIFICATE OF REGISTRATION] INCLUDE THE COMMITMENT TO ESTABLISH A BENEFICIATION PLANT.
WHETHER X X X PETITIONER OBSERVED DUE PROCESS IN WITHDRAWING RESPONDENT'S X X X [ITH] INCENTIVE.
Petitioner contends that the grant of ITH incentive is not a right but a privilege and that it is premised on the enterprise's compliance with the requirements of the 2007 IPP. In this case, petitioner claims that, upon evaluation of respondent's compliance with the terms and condition of its ITH incentive entitlement, it found that respondent was not entitled to an ITH incentive as it failed to fulfill its commitment to infuse huge capital investments and construct a beneficiation plant. Petitioner likewise points out that the ore processing activity of respondent was different from what was described in its application for registration as a new producer. Thus, petitioner maintains that it did not err in cancelling respondent's entitlement to an ITH incentive.
As to the issue of due process, petitioner avers that respondent was accorded due process as it was informed of its violations and was given ample opportunity to explain its side and present evidence.
Respondent, on the other hand, puts in issue the lack of authority of the Officer-in-Charge (OIC), BOI Managing Head, Ma. Corazon Halili-Dichosa (OIC Halili-Dichosa), to sign the verification and certification of non-form shopping as well as the failure of petitioner to attach material portions of the records of the case. Respondent argues that there was nothing in Memorandum Order No. 2015-080, series of2015, dated October 9, 2015 to indicate that the OIC is authorized to sign the verification and certification of non-forum shopping as it is not among the list of official documents mentioned in Department Order No. 14-39, series of 2014.
As to the merits of the case, respondent insists that the CA correctly ruled that the withdrawal of respondent's ITH incentive was without any basis since respondent was able to comply with the requirements under the 2007 IPP by making substantial investments in fixed assets and by submitting progress reports on the implementation of its new project. Respondent also echoes the view of the CA that there was nothing in the 2007 IPP to suggest that an actual physical structure or building must be erected to be registered as a new project as the same could refer to an equipment such as a conveyor belt. In fact, respondent was registered as a new project because of its newly adopted beneficiation process, not because of any alleged representation to construct a beneficiation plant. In any case, respondent claims that it has an assemblage of equipment and machineries which comprise its beneficiation plant. Finally, respondent likewise asserts that the withdrawal of its ITH incentive was without due process as petitioner failed to comply with the procedure laid down in the 2004 Revised Rules of Procedure on the Cancellation of Registration under Republic Act No. 5135, Presidential Decree No. 1789, Batas Pambansa Blg. 391 and Executive Order No. 226 (2004 BOI Revised Rules).
The Officer-in-Charge is authorized to sign the verification and certification of non-forum shopping.
Respondent questions the authority of OIC Halili-Dichosa to sign the verification and certification of non-forum shopping. Respondent claims that Memorandum Order No. 2015-080 only authorized OIC Halili-Dichosa to sign and approve vouchers, contracts, orders, and other official documents included in Department Order No. 14-39. And since the verification and certification of non-forum shopping of the instant Petition is not included in the list of official documents, OIC Halili-Dichosa had no authority to file the instant Petition and sign the verification and certification of non-forum shopping of the same.
Although it appears that the verification and certification of non-forum shopping was not among the list of official documents mentioned in Department Order No. 14-39, series of 2014, the Court is still inclined to uphold the authority of OIC Halili-Dichosa to sign the same. In Memorandum Order No. 2015-080, Supervising Director Halili-Dichosa was designated OIC of petitioner in the interest of service as the Undersecretary/Managing Head was on an official trip. Considering the rationale of the said Memorandum, the Court finds that any doubt as to the authority of OIC Halili-Dichosa to file the instant case and to sign the verification and certification of non-forum shopping should be resolved in favor of the government. Obviously, OIC Halili-Dichosa caused the filing of the instant Petition in the performance of her duties and in order to protect the interests of the government. Thus, it is more prudent for the Court to decide the instant Petition on the merits rather than to dismiss it on a mere technicality.
Besides, in recent cases, the Court has allowed certain officials and employees to sign the verification and certification of non-forum shopping on behalf of the company without need of a board resolution. These are the chairperson of the board of directors, the president of a corporation, the general manager or acting general manager, the personnel officer, the employment specialist in a labor case, and other officials and employees who are "in a position to verify the truthfulness and correctness of the allegations in the petition." In this case, the Court considers OIC Halili-Dichosa to be in a position to verify the truthfulness and correctness of the allegations stated in the instant Petition.
Petitioner attached the material portions of the records as would support the Petition.
Respondent contends that the failure of petitioner to attach copies of the pleadings filed before the CA, namely: (1) respondent's Petition for Review; (2) petitioner's Comment; (3) respondent's Reply to Comment; (4) the Memoranda of the parties; (5) petitioner's Motion for Reconsideration; and (6) respondent's Comment/Opposition, is a ground for the dismissal of the instant case under Sections 4(d) and 5, of Rule 45 of the Rules of Court.
The determination of what pleadings are material to the Petition is up to the Court. In this case, the Court finds that the pleadings filed before the CA were not material considering that most of the attachments to these pleadings were already attached to the instant Petition. What is important is that the assailed Decision and Resolution, the letters and issuances of petitioner as well as the documents submitted by respondent to petitioner were all attached to the Petition. Besides, such failure has been cured as the CA records have been elevated before the Court.
Rule 45, Section 4 of the Rules of Court indeed requires the attachment to the petition for review on certiorari 'such material portions of the record as would support the petition.' However, such a requirement was not meant to be an ironclad rule such that the failure to follow the same would merit the outright dismissal of the petition. In accordance with Section 7 of Rule 45, 'the Supreme Court may require or allow the filing of such pleadings, briefs, memoranda or documents as it may deem necessary within such periods and under such conditions as it may consider appropriate.' More importantly, Section 8 of Rule 45 declares that '[i]f the petition is given due course, the Supreme Court may require the elevation of the complete record of the case or specified parts thereof within fifteen (15) days from notice.' Given that the TSN of the proceedings before the RTC forms part of the records of the instant case, the failure of FAT KEE to attach the relevant portions of the TSN was already cured by the subsequent elevation of the case records to this Court. This pronouncement is likewise in keeping with the doctrine that procedural rules should be liberally construed in order to promote their objective and assist the parties in obtaining just, speedy and inexpensive determination of every action or proceeding.
Having disposed of the procedural matters, the Court shall proceed to the substantive issues.
Respondent was afforded due process.
Petitioner imputes error on the CA in finding that respondent was not afforded due process. Petitioner insists that respondent was informed in the letter dated April 11, 2011 of its violation and was given several opportunities to refute the same.
SECTION 1. Initiate Cancellation Proceedings. - The 'Department' concerned shall initiate cancellation procedures against BOI-registered enterprises. It shall prepare a Memorandum for the cancellation of the BOI registration based on any of the ground/s so enumerated in Rule I, Section 2, par. (a) to (k). The same shall be supported by substantial evidence on record.
At the instance of any interested party and upon finding of reasonable basis to prove that the registered enterprise has committed any of the grounds for the cancellation of registration under Section 2 of these rules, the Department concerned shall prepare a 'show-cause letter of cancellation of registration' addressed to the subject BOI registered enterprise requiring it to explain in writing why its registration should not be cancelled.
e) Order for the registered enterprise to file its 'Reply' within fifteen (15) days from receipt of the 'show-cause' letter with a proviso that failure or inability to reply within such period will constrain the Office to immediately recommend the cancellation of the registration of the subject enterprise by way of a Memorandum.
Respondent claims that the Resolution of the Sangguniang Bayan of the Municipality of Tubay cannot be considered as a verified complaint nor can the letter dated April 11, 2011 be deemed as a show-cause letter. Petitioner likewise cannot claim that it initiated motu proprio proceedings against respondent considering that it failed to prepare a memorandum as required under Section 1 of the BOI Revised Rules.
Due process in administrative proceedings is defined as "the opportunity to explain one's side or the opportunity to seek a reconsideration of the action or ruling complained of." Because of the nature of administrative proceedings, administrative agencies are usually given a wide latitude or sufficient leeway in applying technical rules of procedure.
In this case, although there may have been infirmities or lapses in initiating the cancellation process, the Court, nonetheless, finds that essentially respondent was afforded due process since it was informed of the allegations against it and was given ample opportunity to refute the same. Records show that respondent received the letter dated April 11, 2011 informing it of the allegations made by the Sangguniang Bayan and of the Sangguniang Bayan's request for the cancellation of respondent's BOI registration; that the said letter required respondent to file a reply within 15 days from receipt of the same; that respondent was allowed to submit evidence to refute the allegations against it; and that respondent sought reconsideration of the withdrawal of its ITH incentive. These clearly show that the essence of due process was complied with.
It must be stressed though that in finding that respondent was afforded due process, the Court is not implying that rules of procedures may be brushed aside or trivialized. What the Court is saying is that the rigid application of the rules of procedure should be avoided if it would result in delay or frustrate rather than promote substantial justice.
However, while respondent was not deprived of due process, the Court, nevertheless, finds that, as aptly found by the CA, the withdrawal of the ITH incentive was without any basis.
Respondent is entitled to an ITH incentive.
4) adhere to its project timetable.
However, after a careful review of the records, the Court agrees with the findings of the CA that the withdrawal of respondent's ITH incentive was not supported by the law and the evidence.
a Project to be establish by an existing enterprise with existing business operation(s) entirely distinct and different from the proposed project in terms of either final product or service, production process, equipment or raw material.
i. the new project will involve the establishment of another line that may be put up in a site either outside or contiguous to its existing premises or compound.
'Another Line' refers to new facilities used in the production of the registered product/service. This line may use a facility common to an existing line such as warehouse, finishing, quality control or laboratory.
'New Facility' refer to the space or area, physical structure and equipment provided for a particular purpose or segment of the production process/service activity.
ii. There is new investment in fixed assets and working capital.
Since there was no such requirement under the terms and conditions of both the Project Approval Sheet and respondent's Certificate of Registration as well as in the 2007 IPP, petitioner cannot use this as ground to withdraw respondent's ITH incentive.
7) HM 350 Komatsu Articulated Trucks.
(c) acquired major equipment components of the beneficiation plant (i.e. 1 unit of Kleeman Mobiscreen, 1 unit of Caterpillar Model 320 DL HE, 2 units of Komatsu HM350-2, 1 unit of Commander Power Screen, 1 unit of Caterpillar 950H Wheel Loader, 2 units of Komatsu HM 350-1, 1 unit of Terex Mobile Crusher and 1 unit of Caterpillar Model 320 DL HE).
We cannot agree with [petitioner's] contention that [respondent] failed to comply with the project time table incorporated in its BOI [Certificate of Registration] because allegedly [respondent] purchased major equipment only in 2012. We find that [respondent] has sufficiently explained and proved that the pieces of equipment acquired in 2012 were merely a re-fleeting of old equipment and the acquisition of Kleeman Mobiscreen (used in screening crushed material from sized material) by [respondent] in 2012 is not evidence that before that, [respondent] has no existent and fully functional beneficiation process, albeit sizing, prior to the acquisition of Kleeman Mobiscreen in 2012, was done manually. We note [petitioner's] unsupported contention is highlighted by [respondent's] unrebutted claim that [petitioner] has not made any site inspection to be able to say that [respondent] has no beneficiation plant or has not infused new investment in terms of fixed assets, equipment and machineries.
We cannot likewise uphold [petitioner's] finding that [respondent] failed to submit progress reports as required under its BOI [Certificate of Registration]. Documentary evidence submitted by [respondent] includes such reports as filed negating BOI's finding. WE also note that [respondent] has, in fact [been] issued a Certificate of Good Standing by the Director of the Supervision and Monitoring Department of BOI.
All told, the Court finds that the withdrawal of respondent's ITH incentive was without any basis, and thus, affirms the ruling of the CA reversing and setting aside the resolutions embodied in petitioner's letters dated May 24, 2012 and August 12, 2013. As a general rule, factual findings of administrative agencies are not interfered with; an exception, however, is when said findings are not supported by substantial evidence, such as in the instant case.
WHEREFORE, the Petition is hereby DENIED. The assailed December 4, 2014 Decision and the August 11, 2015 Resolution of the Court of Appeals, in CA-G.R SP No. 131511 are hereby AFFIRMED.
Leonardo-De Castro, C. J., and Tijam, JJ., concur.
Leonen,** J., see dissenting opinion.
** Per raffle dated September 12, 2018 vice J. Jardeleza who recused due to prior action as Solicitor General.
 Alimario v. Commission on Audit, 295 Phil. 760, 766 (1993).
 Rollo, Volume I, pp. 13-47.
 Id. at 54-71; penned by Associate Justice Danton Q. Bueser and concurred in by Associate Justices Remedios A. Salazar-Fernando and Socorro B. Inting.
 Rollo, Volume II, p. 1243.
 Rollo, Volume I, p. 14.
 Id. at 97-145 and 146-147.
 Rollo, Volume II, p. 1205.
 Id. at 1296-2303 (should be 1303).
 Id. at 1285-1287 and 1292-1296.
 Id. at 2303-2310 (should be 1303-1310).
 Swedish Match Phils., Inc. v. The Treasurer of the City of Manila, 713 Phil. 240, 248-249 (2013) citing Cagayan Valley Drug Corporation v. Commissioner of Internal Revenue, 568 Phil. 572, 580-585 (2008).
 See Philippine Health Insurance Corporation v. Our Lady of Lourdes Hospital, 773 Phil. 28, 36 (2015).
 SECTION 4. Contents of petition. - The petition shall be filed in eighteen (18) copies, with the original copy intended for the court being indicated as such by the petitioner, and shall x x x (d) be accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material portions of the record as would support the petition; and (e) contain a sworn certification against forum shopping as provided in the last paragraph of Section 2, Rule 42.
 SECTION 5. Dismissal or denial of petition. - The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof.
The Supreme Court may on its own initiative deny the petition on the ground that the appeal is without merit, or is prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration.
 Esguerra v. Trinidad, 547 Phil. 99, 106 (2007).
 Padilla v. Hon. Sto. Tomas, 312 Phil. 1095, 1103 (1995).
 Saunar v. Ermita, G.R. No. 186502, December 13, 2017.
 Ben Line Agencies Philippines, Inc. v. Madson, G.R. No. 195887, January 10, 2018.
 Letter dated April 30, 2008 (Re: Reconsideration of [respondent's] BOI Application as New Producer of Beneficiated Nickel Silicate Ore; rollo, Volume I, pp. 146-147.

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Thus, a creditor who successfully proves conduct by an individual debtor involving false pretenses, a false representation or actual fraud can have that debt ruled non-dischargeable.
Federal circuit courts have disagreed on the necessary elements of “actual fraud” in this context. The Seventh Circuit has taken a broad view, finding that misrepresentation is not the only type of fraud that is non-dischargeable under § 523(a)(2)(A). See McClellan v Cantrell, 217 F.3d 890, 893 (7th Cir. 2000). But the Fifth Circuit (which covers Texas, Louisiana and Mississippi) held that a creditor seeking to block the discharge of a debt for “actual fraud” had to prove that the creditor’s justifiable reliance in extending credit resulted from a false representation by the debtor. See Gen. Elec. Capital Corp. v Acosta, 406 F.3d 367, 372 (5th Cir. 2005).
The Fifth Circuit last followed its prior approach in 2015. In Husky Int’l Electronics v Ritz, 787 F.3d 312 (5th Cir. 2015), a Chapter 7 debtor transferred his company’s funds to other entities he controlled without receiving equivalent value in return and after incurring a debt to the petitioning creditor. The Fifth Circuit held that these transfers did not constitute “actual fraud” in the absence of any false representation by the debtor to the creditor.
The United States Supreme Court granted certiorari in Husky and acted to resolve the split between the circuits on this issue. In an 7-1 decision, the Supreme Court reversed the Fifth Circuit to hold that the term “actual fraud” as used in § 523(a)(2)(A) encompasses fraudulent conveyance schemes—even in the absence of a false representation by the debtor. Husky Int’l. Electronics v Ritz, 136 S. Ct. 1581 (May 16, 2016).
Writing for the majority, Justice Sotomayor concluded that “[t]he term ‘actual fraud’ in § 523(a)(2)(A) encompasses forms of fraud, like fraudulent conveyance schemes, that can be effected without a fraudulent representation.” The Court noted that, before the 1978 amendment of the Bankruptcy Code, debtors were prohibited from discharging debts that were obtained by “false pretenses or false representations.” Therefore, the Court reasoned, Congress’ later addition of “actual fraud” to the language of § 523(a)(2)(A) was not intended to be duplicative of “false representation.” Going all the way back to the Statute of 13 Elizabeth (one of the first bankruptcy acts) and subsequent English bankruptcy practice and tracing forward, the Court added that “fraud” can include debtor transfers that impair a creditor’s ability to collect on a debt and circumstances where the debtor and the recipient of assets conveyed were held liable even in the absence of representations to the debtor’s creditors.
Significantly, the Court also rejected the notion that § 523(a)(2)(A) should be restricted only to cases where debt or credit is “obtained by” the transferor of a fraudulent conveyance; instead, it suggested that any transferee who receives a fraudulent conveyance with knowledge could also be subject to a non-dischargeability claim under §5 23(a)(2)(A) for any debts traceable to the fraudulent conveyance. While Justice Thomas argued that the phrase “obtained by” requires fraud at the point that credit was obtained and should not include fraudulent transfers, his dissent did not carry the day.
By adopting a broad definition of “actual fraud” in the context of 11 U.S.C. § 523(a)(2)(A), the Supreme Court has resolved the circuit split and appears to have now made matters a little easier for creditors seeking to have debts incurred by bad acing debtors ruled non-dischargeable in bankruptcy.


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Bad-Faith Renewal Insufficient to Win Back "dinkybomb.com"
Tenerife Government Fails in Bid for "tenerife.info"
"Wal-Mart Puts Pressure On Trade Dress Owners," pp. 14-18.
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Co-Author, Note, 84 620-621, reviewing article entitled "Lever Bros. v. United States and the Legality of Gray Market Imports: A New Shield for United States Trademark Owners in Transnational Markets."
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Progressive Casualty Insurance Company v. All Web Leads, Inc., Case No. 1:12-cv-01545-JG (N.D. Ohio). Represented Progressive in trademark infringement suit relating to keyword advertisements. Settled.
eSolar Inc. v eSolar Exchange LLC, Case No. 2:12-cv-04134-MRW (C.D. Cal.). Represented plaintiff in trademark infringement action. Settled.
Dazzlesmile, et al. v. Epic Advertising, et al., Case No. 2:09-cv-01043-PMW (D. Utah). Represented Yahoo!, Inc. in trademark infringement suit relating to keyword advertisements. Settled.
NTN Corporation, et al. v. Mandas, et al., Case No. 2:10-cv-00257-JWS (D. Ariz.). Represented NTN Corporation in trademark infringement suit relating to counterfeit bearings. Settled.
Mary Kay, Inc. v. Yahoo! Inc., Case No. 3:09-cv-01278-M (N.D. Tex.). Represented Yahoo! in trademark infringement suit relating to shortcuts appearing in emails. Settled.
Yahoo! Inc. v. National Football League Players Association, Inc. et al., Case No. 09-cv-01272-PJS-FLN (D. Minn.). Represented Yahoo! Inc. in declaratory judgment action relating to right of publicity and fantasy football game. Settled.
International Information Systems Security Certifications Consortium v. Degraphenreed, et al., Case No. 2:07-cv-1195 (S.D. Ohio). Represented Yahoo! Inc. in trademark infringement dispute. Settled.
Heartbrand Beef, Inc. v. Lobel's of New York, LLC, et al., Case No. 6:08-cv-00062 (S.D. Tex.). Represented Yahoo! Inc., one of the defendants in a trademark infringement dispute. Dismissed.
Trilink Saw Chain, LLC, et al. v. Blount, Inc., et al., Case No. 1:07-CV-0409-CAP (N.D. Ga.). Represented Blount, Inc. in false advertising claim. Settled.
Bernini, Inc. v. Fragrancenet.com, Inc., et al., Case No. CV 06-4829 RGK (C.D. Cal.). Represented Yahoo! Inc. in trademark infringement dispute. Settled.
Munchkin, Inc. v. Wm. Wrigley Jr. Company, Case No. CV 06-6342 PA (C.D. Cal.). Represented Wm. Wrigley Jr. Company in trademark infringement matter. Settled.
Children's Memorial Medical Center, Inc. v. Kid's Doc, S.C., et al., Case No. 1:06-cv-05844 (N.D. Ill.). Represented Children's Memorial Medical Center, Inc. in suit alleging trademark infringement. Settled.
JP Enterprises, Inc. v. Yahoo! Inc., et al., Case No. 06-cv-01046-REB-PAC (D. Col.). Represented Yahoo! Inc. in suit alleging trademark infringement. Settled.
Motorola, Inc. v. Razor USA, LLC, Case No. 2198-N (Del. Chancery Ct. 2006). Represented Motorola in declaratory judgment action concerning license agreement. Settled.
Government Employees Insurance Company ("GEICO") v. Google, Inc. and Overture Services, Inc., Case No. 04-CV-507 (E.D. Va.). Represented Overture Services, Inc., an Internet search engine, in trademark infringement suit concerning bidding on search terms that include trademark of plaintiff. Settled.
R. J. Reynolds Tobacco Company, et al. v. Premium Tobacco Stores, Inc., et al., Case No. 99 C 1174 (N. D. Ill.), 462 F.3d 690, (7th Cir. 2006). Gray market case; lead counsel for plaintiffs in trial of trademark claims, secured jury verdict finding, among other things, federal trademark infringement, unfair competition and willful dilution, and awarding $3.5 million in defendant's profits; prejudgment interest later awarded. Affirmed on appeal.
Caterpillar, Inc. v. The Walt Disney Company, Case No. 1:03-cv-01334 (C.D. Ill. 2003). Represented Caterpillar in connection with Disney's use of Caterpillar marks in film George of the Jungle 2. Settled.
Mark Nutritionals, Inc. v. Overture Services, Inc., Case No. SA-02-CA-0086 OG (W.D. Tex.). Represented Overture Services, Inc., an Internet search engine, in trademark infringement suit concerning bidding on search terms that include trademark of plaintiff. Settled.
Mark Nutritionals, Inc. v. AltaVista Company, Case No. SA-02-CA-0087 EP (W.D. Tex.). Represented AltaVista Company, an Internet search engine, in trademark infringement suit concerning bidding on search terms that include trademark of plaintiff. Settled.
PlasmaNet, Inc. v. Overture Services, Inc., Case No. 02 CV 3075 (AGS) (S.D. N.Y.). Represented Overture Services, Inc., an Internet search engine, in trademark infringement suit concerning bidding on search terms that include trademark of plaintiff. Settled.
Robert Novak d/b/a Pets Warehouse, etc.. v. Overture Services, Inc., et al., Case No. CB 02 5164 (E.D. N.Y.). Represented Overture Services, Inc., an Internet search engine, in trademark infringement suit concerning bidding on search terms that include trademark of plaintiff. Settled.
800-JR Cigar, Inc. v. GoTo.com, Inc., et al., Case No. 2:00 CV 03179 (D. N.J.). Represented Overture Services, Inc. (formerly GoTo.com, Inc.), an Internet search engine, in trademark infringement suit concerning bidding on search terms that include trademarks of plaintiff. Settled.
Federal Cartridge Co. v. Cyrus, Inc. d/b/a Federal Arms Corp. of Amer., Case No. 00-1569 (D. Minn., Fourth Division). Secured consent judgment on behalf of owner of FEDERAL mark in suit concerning use of name and mark FEDERAL ARMS for firearms.
GoTo.com, Inc. v. The Walt Disney Company, et al., 202 F. 3d 1199, 1207 (9th Cir. 2000). Secured preliminary injunction for GoTo.com, an Internet search engine, in trademark infringement suit concerning use of logo appearing on Web sites and television and in print media. Affirmed on appeal. Case settled for $21.5 million following filing of contempt petition against defendants.
Sargent & Greenleaf, Inc. v. Masco Corporation, et al., Case No. 99-6 (E.D. Ky., Lexington Div. 1999). Secured preliminary injunction for manufacturer of dial and ring locks used on gun safes. Case subsequently settled.
R.J. Reynolds Tobacco Company, et al. v. Allstate Cigarette Distributors, Inc., et al., Case No. 99-348-CIV-T-25F (M.D. Fla., Tampa Div.). Secured consent judgments against various defendants in gray market cigarettes case.
Motorola, Inc. v. Fonorola Corporation, Case No. 97 CV 9157 (RPP) (S.D. N.Y.). Trademark infringement action to prevent use of FONOROLA trademark for use with telephone services. Settled.
Jonathan Drew, Inc. v. GMB, Inc., Opposition No. 91183057 (T.T.A.B.). Represented applicant for mark CAMEL CRUSH. Settled.
Danjaq, LLC v. Jason & Jean Products, Inc., Opposition No. 120,980 (T.T.A.B.). Represented owner of JAMES BOND and 007 service marks in opposition to application for registration of mark 007 HAIR WEAVING BOND. Summary judgment granted in favor of client.
Danjaq, LLC v. Jason & Jean Products, Inc., Cancellation No. 31,532 (T.T.A.B.). Represented owner of JAMES BOND and 007 service marks in cancellation proceeding concerning registration of mark 007 WEAVING BOND. Summary judgment granted in favor of client.
Wm. Wrigley Jr. Company v. Lotte Co., Ltd., Opposition No. 115,237 (T.T.A.B.). Opposition to application for registration of mark LOTTE SPEAR MAX. Settled.
Wm. Wrigley Jr. Company v. Lotte Co., Ltd., Opposition No. 115,236 (T.T.A.B.). Opposition to application for registration of mark LOTTE JUICY MAX. Settled.
Danjaq, LLC v. LVIII Group, LLC, Opposition No. 113,226 (T.T.A.B.). Represented owner of JAMES BOND and 007 service marks in opposition against application to register mark CLUB 007--A GENTLEMAN'S CLUB. Opposition sustained May 12, 1999.
Danjaq, LLC v. Double-O-Seven, Ltd., Cancellation No. 28, 013 (T.T.A.B.). Represented owner of JAMES BOND and 007 service marks in cancellation proceeding concerning registration of mark DOUBLE-OH-SEVEN, LTD. & Design. Cancellation granted August 16, 1999.
Navistar International Transportation Corp. v. Mack Trucks, Inc., Opposition No. 107,707 (T.T.A.B.). Opposition proceeding filed in 1997 against application to register truck grill design. Settled.

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Under ERISA, fiduciaries have no ability to sue participants for breach of the terms of a plan. To illustrate this point, here’s a health insurance scenario that crops up regularly. Mabel Cautious is insured under the Conglomerate Inc. Medical Benefits Plan ("the Plan"). Mabel is driving through an intersection one day and Johnny Hotrod blows a red light, hits Mabel and injures her. She has medical bills of $10,000 which the Plan pays. Later, Mabel sues Johnny for her injuries and his auto insurer pays her $25,000, Johnny’s policy limits, a portion of which is to pay for Mabel’s medical expenses. The document governing the Plan has a provision in it that calls on Mabel to reimburse the Plan for any medical expenses it has paid Mabel if Mabel later recovers those expenses from a negligent third party, such as Johnny. These contract terms, usually referred to as subrogation provisions, are common in insurance policies.
So what if Mabel refuses to reimburse the Plan for the medical expenses she recovers from Johnny? ERISA is very clear: neither the Plan, its corporate sponsor nor the administrators of the Plan can sue Mabel for breach of contract. 29 U.S.C. §1132(a)(1)(B). ERISA does have a provision, 29 U.S.C. §1132(a)(3), that allows a fiduciary to obtain "appropriate equitable relief" for violations of the terms of the Plan. However, in Great-West v. Knudson, 534 U.S. 204 (2002), the Supreme Court decided that "appropriate equitable relief" does not include recovering money for breach of contract.
But the folks administering ERISA plans, called "fiduciaries" under the statute, were not deterred from pursuing subrogation claims. There are equitable theories that allow for recovery of money under certain circumstances. One of these theories is equitable restitution. Some federal Circuit Courts of Appeals interpret Great-West as allowing ERISA fiduciaries to recover funds from Mabel under this theory. Other Circuits have interpreted Great-West as prohibiting fiduciaries from pursuing subrogation claims at all. So the federal Circuits are split on this issue.
Last month the Supreme Court agreed to review a case, Mid Atlantic Medical Services, LLC v. Sereboff, 407 F.3d 212 (4th Cir. 2005), to resolve the question. In Sereboff the Fourth Circuit allowed an ERISA plan to recover a portion of its medical expenses based on equitable restitution. Usually, whether an insurer is entitled to be reimbursed when a person receives money from a personal injury claim calls on a court to analyze whether that person has been "made whole" by the personal injury money she receives. Only if she has been fully compensated for her injuries is the insurer in a position to insist on getting its money back. This analysis, known as "equitable subrogation," looks beyond the terms of the insurance policy. However, in Sereboff, the Fourth Circuit was having none of that. It simply looked at the terms of the Plan, identified language in the Plan that called on the Sereboffs to repay the Plan regardless of whether they had been made whole, and awarded the Plan the money, less the Plan’s proportionate share of the Sereboffs' attorney fees.
In other words, the court allowed the ERISA fiduciary to enforce the terms of the Plan to recover money for breach of contract through §1132(a)(3), effectively enabling an end-run around the limits of §1132(a)(1)(B). We’ll now see if the Supreme Court lets the fiduciary get away with that.
Post a Comment to "Equitable Subrogation & ERISA's Remedial Framework"


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Judgment of Cobb J considering a father’s application under the Hague Convention and Article 11 of Council Regulation (EC) 2201/2003 seeking the return of his son to Hungary, despite the parties being habitually resident in Germany at the time of the child’s removal. The decision considers the use of undertakings to protect against the grave risk of harm to the child if his return is ordered.
Cobb J's judgment determines a father's application under the Convention on the Civil Aspects of International Child Abduction 1980 ('the Hague Convention') and Article 11 of Council Regulation (EC) 2201/2003, in which he sought the return of his son to Hungary.
The mother opposed the application, relying upon Article 13(b) of the Hague Convention to assert that there was a grave risk of physical or psychological harm to the child, or that the child would otherwise be placed in an intolerable situation, if returned to Hungary.
The applicant father and respondent mother are both Hungarian nationals. They were in a relationship from 2009/10 and started living together in Hungary at around this time. The parties had a son, A, who was born in 2014 and was 4 years and 3 months old at the time of the hearing of the father's application. The parties married in January 2017 and moved to Germany at around this time. Prior to January 2017, both parties, and indeed A, had always lived in Hungary. In March 2018, the parties travelled from Germany to Hungary for a short holiday. After a few days the father returned to Hungary. Shortly thereafter, the mother travelled with A to England and did not return. There was a factual dispute between the parties as to whether the father consented, or acquiesced, to the mother removing A to England in the first instance. However, the Judge did not need to resolve this issue, him being satisfied (and it not being disputed) that A had been wrongfully retained in England since that time.
The parties gave differing accounts of their relationship. The mother asserted that the father was emotionally and physically abusive, which the father did not accept, and both parties raised concerns in respect of the other's mental health. However, it was accepted that the father had travelled to England shortly after he became aware that the mother had left Hungary. The parties had discussions about their future at this time, during which the mother reported informing the father that she wanted to end the relationship. In seeming response to this news, on or around 15 April 2018, the father attempted to take his own life, having taken an overdose of Xanax/Alprazolam together with alcohol and barricading himself into his hotel room. Consequently, the father was taken to hospital for treatment.
The father was visited at hospital by the mother and A. During this visit the father seriously assaulted the mother while she was on the ward, attempting to strangle her. The mother had been holding A at the time and dropped him on to the floor in the course of being assaulted. Neither the mother nor A were found to have sustained serious injury, but both were shaken and understandably distressed. The father made further attempts to take his life while in hospital; on one occasion he was found stood on a chair with his trouser belt around his neck which was tied to a pipe from the ceiling and later the same day he was reported to have tissue in his mouth which he was trying to swallow.
The father subsequently pleaded guilty to an offence contrary to section 47 of the Offences Against the Person Act 1861, for his assault of the mother. He received a 6 month suspended sentence and was made the subject of a restraining order. It was not suggested at any point within the present proceedings that the father had committed any breach of the terms of that restraining order.
At some point over the next 5 months the father returned to Hungary and on 24 October 2018 he issued his application under the Hague Convention. Concerns about the manner in which the application was prepared and presented on behalf of the father were an ongoing feature of the case. At first, the father sought the return of his son either to Germany or Hungary. However, when pressed for clarity, the father confirmed that he invited the court to consider the return of A to Hungary. Cobb J was, in any event, satisfied that both parties had, for their own reasons, abandoned their home and habitual residence in Germany at the time of the application.
The principle of returning a child to a state other than the state in which he or she was habitually resident prior to their wrongful removal, though unusual, is, in principle, perfectly legitimate (O v O  EWHC 2970 (Fam) followed) (see paras 23 to 24).
v) The situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home ."
Reference is also made to Article 11.4 of Regulation 2201/2003, in which it is made clear that "a court cannot refuse to return a child on the basis of Article 13(b) of the Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return." Such arrangements can include the offering and acceptance of appropriate undertakings by the party seeking the return of the child (see paras 31 to 35).
Finally, it is made clear, should the mother succeed in establishing an exception to Article 12 in reliance upon Article 13(b), that the court retains a wide discretion then to determine whether or not A should be returned to Hungary (see paras 36 to 37).
The evidence of grave harm upon which the greatest weight could be placed was the serious act of violence committed by the father on the mother after A had been wrongfully retained in England. Cobb J was unable to adjudicate with any certainty upon whether, historically, domestic abuse within the relationship was as bad as that being alleged by the mother, but the mother was able to establish to the satisfaction of the court that the father had displayed violence to her both historically and recently.
The Judge, therefore, considered the essential question to be whether sufficient protective measures could be put in place to protect A from the grave risk of harm posed to him by his return to Hungary.
The court was critical of the father's failure to identify clearly, in advance of the hearing, what undertakings he would be prepared to offer to protect against any such risk of harm. However, Cobb J was satisfied that the risk could be protected against by the offer of various undertakings by the father. Consequently, upon such undertakings being offered to the court, A's return to Hungary would be ordered (see para 49). The Judge then adjourned the application to a return hearing, to enable the father to provide formal written and signed confirmation that he was prepared to offer the required undertakings.
At the return hearing, Cobb J reflected upon a decision of the Court of Appeal in Re C (Article 13(b))  EWCA Civ 2834 which, coincidentally, had been decided on the same day as the first hearing in the present case. Cobb J was satisfied that his original decision was consistent with the view of the Court of Appeal in Re C, which centred largely upon a failure at first instance in that case to consider adequately the future risk of grave harm to the child and what protections were available to ameliorate that future risk, including the offering and acceptance of effective undertakings.
The mother did not attend the return hearing, but the father had produced in writing various undertakings intended to mitigate the acknowledged risk, which were accepted by the court. Consequently, A's return to Hungary was ordered with the father continuing to be bound by the undertakings offered until the matter is placed before the courts in Hungary.
Summary by Oliver Riley, barrister, St John's Chambers, Bristol.
1. This case concerns one child, A, a boy aged 4 years 3 months. He is the only child born to the relationship of the Applicant (who I shall refer to as "the father") and the Respondent ("the mother"). The mother and father are married; each parent has children from previous marriages and/or relationships. They are Hungarian nationals, and last lived together in March 2018 in the Federal Republic of Germany.
2. The application before the court has been brought by the father pursuant to the provisions of Child Abduction and Custody Act 1985 (incorporating the Convention on the Civil Aspects of International Child Abduction 1980 ("The Hague Convention")), and under Article 11 of Council Regulation (EC) 2201/2003. The application is dated 24 October 2018; he seeks the return of A to Hungary.
3. For the purposes of the proceedings, I have read the statements of the parties and various supporting documents, and have received the able submissions of counsel for both parties. I am bound to observe that the general preparation of the Applicant's case was not the finest example of its type. The father failed to comply strictly with the direction (Order 6.11.18) to provide a list of the protective undertakings he was prepared to offer, and his generalised comments (cited below at ) fell rather short of the onus on him to "establish that adequate arrangements have been made to secure the protection of the child after his return" (Art.11.4 BIIR). Furthermore, his statements contained internally contradictory information, reflective, I believe, of a lack of care in their preparation. I make these points as the deficits in the preparation of his case – uncharacteristic of the generally high quality of case preparation which the Courts are accustomed to seeing from solicitors on the ICACU accredited panel – have rendered my task, in this essentially summary process where heavy reliance is placed on the filed documents, all the more difficult.
4. There is no dispute in this case that the A's removal from Germany (and if not removal certainly his retention from Germany) was wrongful. In her statement of evidence, and in the preparatory documents for this hearing, the mother tentatively suggested that the father had consented to or acquiesced in her removal or retention of A in this jurisdiction, but she does not pursue either argument at the hearing.
5. The mother nonetheless seeks to establish that there is a grave risk that the return of A to Germany (where they were last habitually resident) or Hungary (where the father now lives) would expose him to physical or psychological harm. In evaluating whether that Article 13 exception is established, the case raises some interesting evidential and legal difficulties.
6. The father is 53 years old, the mother is now just 40. Both have had previous partners. The father has three adult children who live independently, but with whom he says he maintains a good relationship; the mother has two teenage children who live with their father in Hungary. The mother last saw her older children in April 2018, but I am told by her counsel that the mother speaks with them every day.
7. The parents' relationship commenced in or about 2009/2010, and they apparently lived together from about that time. A was born in 2014; he suffers from hypotonia (low muscle tone, often involving reduced muscle strength) and apparently has poor eye sight; he is otherwise a healthy little boy.
8. In early January 2017, when A was 2½ years old, the parties married. At or about the time of their marriage they moved to Germany 1. Until that point both parents had lived all their lives in Hungary. No steps have been taken, so far as I am aware, to dissolve the marriage.
9. During the marriage, the father was variously a courier or truck driver; the mother was studying. A attended nursery.
10. The parties give rather different accounts about their relationship. The mother describes it as emotionally and physically abusive. The father denies this, pointing out that the couple were together for some eight years before the mother agreed to marry him – inconsistent, he says, with a chronic history of abuse. That said, he accepts in a statement he gave to the police after the abduction (on 3 April 2018) that "they (sic.) were conflicts, but such degree the problem no I thought (sic.)".
"In February (2018) this patient visited me in desperation. She felt intimidated by [in fear of] her husband who regularly abused [assaulted] her both verbally and physically, threatening her and her child by saying that if they tell anyone or see a doctor or get outside help, then he will pull [tear] them apart and wherever they go he will find them and ruin their lives.
After each abuse where there were visible signs on the body my patient stayed in her apartment restricting social relationships until her body had recovered [was completely healed]. This is why recorded diagnosis did not happen and on the other hand I patient was so badly frightened that she did not dare to undertake the procedure involved.
Several times we talked [we had many conversations] about looking for a way out of this situation, taking into account the possibilities and their consequences."
12. The father asserts that he enjoys good health, and has produced a letter from his Hungarian GP to confirm this. The mother challenges this, asserting that the father suffers from a bipolar disorder or personality disorder; there is no clear supporting or corroborative evidence of this, though there is a record of the father self-reporting to medical professionals in Manchester on 15 April 2018 (see  below) "Hx bipolar" which appears to offer some support for the mother's case.
"In the court case, the Judge ordered a full psychological report into her mental health due to her unstable behaviour and the psychologist found [the mothers] mood very changeable and erratic."
I have not seen this evidence, or anything like it, and the mother has not specifically addressed it in her evidence; I can, accordingly, reach no conclusion about it. The father further asserts that the mother has historically made (and continues to make) a living as a stripper, and that this lifestyle contributed to her former husband's success in his bid to care for her older children.
14. In March 2018, the parties travelled from Germany to Hungary for a short holiday. After a few days, the father returned to Germany. Shortly thereafter the mother and A travelled to England. There is a dispute on the face of the documents about whether the father knew or consented to the mother travelling to England; it is not necessary for me to determine this, as it is not now the mother's case that the father consented to her bringing A to this jurisdiction permanently. The mother travelled to visit her sister and the sister's partner who live in Manchester. It is the father's case that the mother's sister is a professional stripper, and that the sister's partner abuses drugs. Indeed, it is the father's case (as I mentioned at  above) that the mother continues to make a living from working in strip clubs; she claims to work in a restaurant.
15. The father was aware that the mother had left Hungary by 3 April; on that day he sent a report to the police (referred to at  above). The text of the report/statement is rather garbled, but the gist is clear enough. He rightly suspected that the mother had travelled to England, and indeed he followed her here. He booked into a hotel in Manchester. He asked for and was allowed contact with A. The mother and father had discussions about their future; the mother reports that she told the father that she wished the relationship to end. It was, apparently, in response to this news that the father made an attempt on his own life. On or about 15 April 2018, he took an overdose of the medication Xanax/Alprazolam 2 with alcohol, and he was found in a state of unconsciousness barricaded into his hotel room; he was conveyed to hospital for treatment. On the way to the hospital, the father appears to have given the history of a bipolar disorder (see  above).
16. Having been admitted to hospital, on 15 April, the father was visited by the mother and A. During this visit, the father seriously assaulted the mother on the ward; he attempted to strangle her. The mother had been holding A at the time of the assault and dropped him to the floor. Both the mother and A were medically checked and were found not to have sustained any serious or long-lasting injuries, but both were plainly shaken and understandably distressed by the events. The mother deposes to the fact that "A was very upset by the incident in the hospital". While in hospital after this incident, the father again made attempts on his own life: "At 16:35hs [the father] was found with his trouser belt around his neck, which he tied around the pipe from the ceiling and was about to jump off a chair that he had managed to put under the pipe". Later that day he was reported to have tissue in his mouth which he was trying to swallow.
17. In relation to the assault on the mother, the father was charged with an offence of assault contrary to section 47 Offences Against the Person Act 1861; on 17 April 2018, he pleaded guilty. He was given a 6-month suspended sentence (the court log records "serious assault, child present"), he was made the subject of a restraining order, and ordered to pay compensation and costs. He alleges that the mother or her agents (sister/sister's partner) removed his car and personal items while he was in hospital. I am unable to make any findings about this. He returned to Germany.
18. At some point during the next five months, the father moved to Hungary, where he now lives. On 21 August 2018, the father contacted the Hungarian Central Authority seeking assistance with the return of A. On 28 August 2018 he contacted a lawyer and on 17 September 2018 wrote directly to the Family and Child Welfare Centre in his local town in Hungary asking them to investigate. On 24 October he made an application under the Hague Convention. By his application he sought A's return to Germany, and this outcome was confirmed by his solicitor (per first statement). However, when he filed his own statement, the father deposed to seeking A's return to Hungary. In his second statement he invited the court to return A to either Germany or Hungary – and it was this option which Ms Bhari presented to the court at the outset of the hearing.
19. It is pertinent to remark at this stage that on the evidence before me I am satisfied that both parties have, for their own reasons, abandoned their home and habitual residence in Germany. The mother had on her case never been happy there; she maintains in her written evidence that she was "not entirely happy about [the move to Germany in 2017] but felt I had no choice" and she left in March 2018 not intending to return. Of course, some time shortly thereafter she decided to pursue her life in England. Although the evidence is a little confusing, I proceed on the basis that the father left Germany during the summer of 2018 to resume his life in his home state of Hungary and has retained no home in Germany 3, nor any intention to return there.
20. There has been no direct (i.e. face-to-face) contact between the father and A since April 2018; I understand that the father has spoken with A by telephone though it is not clear how frequently (the mother says that this has happened daily until the launch of these proceedings when she was advised not to permit this contact).
ii) the father would, within reason I dare say, offer any undertakings which the court reasonably required in order to secure the return of A.
"The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home', but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed."
"The Convention did not accept a proposal to the effect that the return of the child should always be to the state of its habitual residence before removal. … including such a provision in the Convention would have made its application so inflexible as to be useless. … When the applicant no longer lives in what was the state of the child's habitual residence prior to its removal, the return of the child to that state might cause practical problems which would be difficult to resolve. The Convention's silence on this matter must therefore be understood as allowing the authorities in the state of refuge to return the child directly to the applicant, regardless of the latter's present place of residence".
"In a world where there is such regular, global travel and where families, such as this one, regularly settle and then move between different countries, it would be manifestly wrong to take a narrow interpretation of the Convention and to order the return of a child to a jurisdiction with which the parties now have no ties and no connections at all."
25. This is a case in which no issue has been taken with the proposition that the father had rights of custody at the material time jointly with the mother (by reason of their marriage), and that he was actually exercising those rights (Article 3 Convention).
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith".
"Article 13, if invoked, deals with specific instances where the welfare of the child may inhibit an order for return under Art 12. Article 13 has to be raised as a defence to the Convention application, and a court has to be satisfied that the matters raised are so important as to displace the prima facie requirement to return the child under Art 12 upon proof of wrongful removal or wrongful retention under Art 3" (emphasis added).
v) The situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home .
29. It is incumbent on me (per Re E) to consider whether the allegations if true would expose A to a grave risk of physical or psychological harm; in short, I believe that a recurrence of domestic abuse would cause him harm. Indeed, it is fair to observe that it already has caused A harm. If so, then I must consider what protective measures might be available, and their efficacy, and in the absence of protective measures, I must do what I can to resolve disputed issues (see Re E at ).
"The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother's anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court's assessment of the mother's mental state if the child is returned". (my emphasis).
I accept that the mother, subjectively, is likely to fear a repeat of the domestic abuse.
31. Undertakings: Although not specifically addressed by either counsel on the point, I start by considering the provisions of Article 11.4 of BIIR, which are to the effect that a court cannot refuse to return a child on the basis of Article 13(b) of the 1980 Hague Convention if it is "established that adequate arrangements have been made" to secure the protection of the child after his return.
"Undertakings have their place in the arrangements designed to smooth the return of and to protect the child for the limited period before the foreign court takes over, but they must not be used by parties to try to clog or fetter, or, in particular, to delay the enforcement of a paramount decision to return the child. It would be helpful if realistic time-limits for the compliance with the undertakings were included in the orders to return the child, but in the absence of a specified time, clearly the court would consider a reasonable time and not allow the case to drag on with repeated applications to the court" (ibid.) (see Dame Elizabeth Butler Sloss P).
"It is conventional … for undertakings to be proffered and accepted. It seems to me that in any case where a defence is being raised under Article 13(b), and more particularly in a case where Article 11.4 of Brussels II Revised applies, and especially in a case such as this where the defendant appears in person, to be desirable that the claimant at the outset of the final hearing should be able to produce, formulated in writing, those protective measures, including such undertakings as are proffered, as are being relied upon by the claimant as meeting the defence under Article 13(b) or as meeting the requirements of Article 11.4" (emphasis by underlining added) (Munby LJ as he then was in Re K at ).
It is regrettable that these reasonably rudimentary steps were not taken here.
34. In taking the course I have in this case, I have also had regard to the decision of Singer J in Re O (Child Abduction: Undertakings)  2 FLR 349, where the judge referred to the permissible involvement of the English court extending beyond bluntly saying that there shall be a return or that there shall not. He there acknowledged that the court could influence the outcome by making clear that without undertakings, or with only the undertakings that are offered, Article 13(b) will apply, but the further or other undertakings are a prerequisite for a child's return. I find myself in that territory here.
"… entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare" (see  in In re M (Children) (Abduction: Rights of Custody)  UKHL 55,  1 AC 1288,).
"… because it is difficult to predict what will weigh in the balance in a particular case. … The court has to have regard to other welfare considerations, in so far as it is possible to take a view about them on the limited evidence that will be available as part of the summary proceedings. And importantly, it must give weight to the Hague Convention considerations. It must at all times be borne in mind that the Hague Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned and returned promptly. To reiterate what Baroness Hale said at §42 of Re M, "[t]he message must go out to potential abductors that there are no safe havens among contracting states".
iv) Offered undertakings which are vague, non-specific, and not supported by evidence (of ability to pay rent for her, to access the Hungarian court etc).
Accordingly, she maintains, she cannot really rely on the father's assurances of protection in the event that she was to be returned to Hungary.
39. The mother maintains that her mental health will be seriously affected if she is to return to Germany or Hungary, though she has not supported that assertion with any direct medical or other corroborative evidence, and I am not satisfied that any distress would be so significant that it cannot be ameliorated by suitable assurances provided by the father. She maintains that she will have no home, job, or means of paying rent in the event of a return; I will address the provision of financial support in the proposed undertakings. Although the mother tentatively inferred in her written evidence and in her defence that she may not return to Hungary herself if I ordered A's return (and would therefore have to send A back accompanied by the father and into the father's care) her statement was not internally consistent in this regard, and in any event her case was not presented in this way at the hearing.
40. She further protests (per her defence) that because A is settled and thriving in England, he would be "psychologically affected" to be uprooted again; this argument plainly cannot and will not succeed given that she has created the situation (if indeed such exists) by her own wrongful acts.
41. The mother's final point (should I reach the stage at which I would be exercising my discretion) that she has no meaningful connections with Hungary (to which country the father proposes that A is returned) and no recent experience of living there. I reject this; she has family in Hungary (including her father and her two older children), and has lived there all of her life until two years ago.
42. While accepting, as he has to, the seriousness of the assault on the mother on 15 April 2018, the father maintains that he acted "completely out of character and I have deep remorse for what happened. I have insight and that is why I did not contest the restraining order". Later he says: "I made a mistake because of my emotional breakdown … [the mother] taunted me in my vulnerable state … This ungraceful act was deeply regretted from my heart and from the very first time I took the (sic.) responsibility in front of the criminal court... I deeply regret what happened which was completely out of character for me and at a time when I was very fragile and vulnerable… I am deeply sorry and can only repeat that I am very remorseful for what happened … I was devastated at the thought of not seeing my son again … I swear and promise never to commit such a shameful act again and be able to control my emotions."
"I am financially secure…. I can provide a home for [A] in Hungary where I am now… I can provide everything that is required for a healthy child's upbringing … I can provide good circumstances for [A] everything what is required to be a healthy child … I work and can easily pay for childcare and would rent a two-bedroom house for me and [A] to live in. I live presently in a high standard house with a garden… [A] will want for nothing…. I will pay for the respondent to come back with [A] if I need to, I will do anything for [A]"
v) not to assault, molest, threaten, harass the mother or A.
The father points to the fact that the maternal grandfather lives in Hungary 5 (in the same town where the father is living) as do the mother's older children, and that the mother will therefore have some support there on her return. He has a good relationship, he says, with members of the maternal family.
45. I am satisfied first and foremost (indeed it has not been in issue) that the removal of A from Germany in March 2018 was wrongful and in breach of the father's rights of custody. The evidence taken overall is inconsistent with the mother's case that the father knew that the mother was intending to travel to England, certainly on a permanent basis. If I am wrong about wrongful removal, I am absolutely satisfied that the retention was wrongful; there is no evidence that the father agreed to a permanent relocation, and it is not said that he acquiesced in the same.
46. It is difficult to form a confident view about domestic violence during the parties' relationship and marriage. There is, however, incontrovertible evidence of a serious act of violence perpetrated on the mother after the wrongful removal or retention which lends some weight to the mother's case that this was an abusive relationship. Although at her visit to her GP in February (prior to the removal) the mother's complaints of a history of violence were all self-reported (there was no independent contemporary verification of her account), the history certainly coincides with the father's undoubtedly abusive conduct on 15 April. I am therefore unpersuaded by the father's case that in visiting her GP to make complaint, the mother was merely laying false ground for her departure, and his protestation that his conduct was 'out of character' is less convincing than the mother's account that this was part of a pattern. Whether the domestic abuse was as bad as she says it was is a matter on which I cannot reach any firm adjudication, but I proceed on the basis that she has established to my satisfaction that the father has displayed violence to her both historically and recently.
47. I also proceed on the basis that the father has formally indicated his deep remorse at his conduct on 15 April 2018 (see ), and has, I am advised, and I have heard nothing to the contrary, complied with the restraining order.
48. The essential question is whether protective measures are, or could be, robust and efficacious 6 enough to protect A from the grave risk of physical or psychological harm in the event of a return. Although the father has been frustratingly vague in making proposals, I see no reason in principle why I should not consider favourably the father's general offer of a range of undertakings as to non-molestation, threats to the mother or violence to her going forward, and his assurances about providing accommodation for her and A.
xii) To use his best endeavours to give undertakings or obtain orders in a Hungarian court to similar effect as set out in the undertakings above (this is not a condition precedent to the return of the child with his mother).
50. I propose to adjourn the application for a return order to 15 January 2019 at 10am to await formal written and signed confirmation (or otherwise) that the father is willing to make the undertakings set out at  above or undertakings which reflect these intentions. Any written undertakings are to be served on the mother and filed with the court by noon on 11 January 2019, together with evidence in support.
51. Finally, this case has been, as I have indicated above, rendered the more unusual by the fact that the applicant seeks the return of A to a 'third state'. I dispose of this aspect now. Ms Scarano submits that it would be "exceptional" for a court to order a 'return' to a third state. I am loath to use the word 'exceptional' because to do so would be to overstate the position; further, 'exceptional' is one of those words which once used tends to acquire quasi-statutory authority in a wholly unintended way. For my part, I would be prepared to accept that it will be an unusual case where the court will order a return to a third state, but it is in principle unobjectionable, and each case will be fact-sensitive. As it is, the mother would, it seems to me be more greatly disadvantaged in the return order being made to Germany – a country where, she says, she never wanted to live. At least in Hungary she has family and some support.
52. That is my judgment.
53. On the day on which I delivered judgment in this case (20 December 2018), the Court of Appeal coincidentally handed down judgment in Re C (Article 13(b))  EWCA Civ 2834. Having now reviewed the judgments in Re C, I am satisfied that my approach to the Article 13(b) issues raised in this case (above) is consistent with the guidance offered by the Court of Appeal in that case. The appeal in Re C had largely centred on the first instance judge's failure to consider adequately the future grave risk of harm, and his flawed concentration on the history of past harm. In this case, it is clear that there has been domestic abuse (see  above); my focus has been on considering whether protections are available in the future in the event of a return (see in particular  ibid.) which could address or ameliorate the risk of future harm.
"This appraisal is, itself, general in that it has to take into account all relevant matters which can include measures available in the home state which might ameliorate or obviate the matters relied on in support of the defence. As referred to in Re D, at , the English courts have sought to address the alleged risk by "extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting state to protect him once he is there. In many cases this will be sufficient" (my emphasis)". (and my emphasis by underlining).
The case of Re D referred to in the quote above is Re D (Abduction: Rights of Custody)  1 AC 619. Moylan LJ also drew on the passage at  of Re S (A Child)(Abduction: Rights of Custody)  2 AC 257.
"… it is clear that, in deciding what weight can be placed on [undertakings], the court has to take into account the extent to which they are likely to be effective. This applies both in terms of compliance and in terms of consequences, including remedies, in the absence of compliance. The issue is their effectiveness which is not confined to their enforceability: see, for example, H v K and Others (Abduction: Undertakings)  1 FLR 700, at ." (my emphasis by underlining).
He reminded the parties in that case (and practitioners more generally) of the contents of the Practice Guidance on Case Management and Mediation of International Child Abduction Proceedings issued by the President of the Family Division on 13th March 2018, and the importance of offering protective undertakings at the earliest opportunity (note in particular paras. 2.5(b)/(d), 2.9(b)/(d), 2.11(b)/(d)/(e) 7 ). This was an issue I raised at  above. He emphasised (inferentially aswell as explicitly) that the court is concerned with the grave risk of future abuse (see  and  together, and  8).
56. On 11 January 2019, and in accordance with my direction, the father filed a signed and sworn statement of evidence containing a suite of undertakings which he was prepared to offer to mitigate the acknowledged risk. I am satisfied that these broadly correspond with my expectations (set out in  above). The father came to court on 15 January 2019, and has been able (through counsel) to augment, refine and clarify the undertakings offered, and add further explanation for the circumstances in which he can deliver upon them. He also formally and verbally gave those undertakings in court, confirming to me that he understands the serious consequences in this country were he not to comply.
57. By contrast, the mother should have been present at court at this hearing in accordance with the Family Procedure Rules 2010; Ms Scarano expected her to be present today. She did not attend, and has not been contactable by telephone during the day. She has not therefore been apprised of refinements to the proposed undertakings made during the day, nor has Ms Scarano been able to gather up-to-date instructions from her on the undertakings offered. Ms Scarano continues to argue that I should not activate the return order, submitting that the father is not someone on whom I can rely to honour the undertakings, given that he has been (she says) "contradictory" and "fluctuating" in what he has proposed; she further maintains that the undertakings do not provide the mother with sufficient reassurance (including short term accommodation in the first instance, modest financial support) about what lies ahead for her back in Hungary.
58. It is unnecessary for me to rehearse the full list of undertakings (fourteen in number) here in this judgment, but I am satisfied that they materially ameliorate the future risk of harm to the mother and/or A, and they are sufficiently "effective" (per Moylan LJ in Re C) to neutralise the mother's contention that A would be exposed to the grave risk of physical or emotional harm in the event of a return. I am satisfied that the undertakings are sufficiently "detailed and concrete" ( above), as I expected them to be; while Ms Scarano plainly had a point in criticising the presentation of the father's case initially (I too criticised this – see  and  above), I do not accept Ms Scarano's current complaints about the presentation of the father's case on undertakings since the 20 December 2018 hearing. Moreover, I remind myself, as I reminded Ms Scarano, that the arrangements set out in the undertakings are designed to provide short-term protection to the mother and to A only pending the engagement of the Hungarian Court. In my judgment, they do so.
iii) The father remains bound in this jurisdiction by the terms of the Restraining Order, by which the father is "prohibited from making any contact directly or indirectly with [the mother] save via her solicitors, social services, or Family Court proceedings/order for the purpose of child contact"; whatever the territorial limitations of this provision going forward, it is material to note (in terms of 'effectiveness' of the undertakings) that there is no evidence that over the last nine months the father has breached that order.
60. I am satisfied that the undertakings proposed are voluntarily and freely given, and I accept them. The Applicant father should consider himself bound by them until the matter is put before the Hungarian Court; his Hungarian lawyer confirms that the father knows the likely impact on the father's substantive case in Hungary were he not to honour them.
61. With those undertakings in place, I am satisfied that it is appropriate now to make the order for return of A to Hungary as foreshadowed by the judgment which I delivered a little less than 4 weeks ago.
62. That brings to an end this litigation in this jurisdiction, and my judgment.
1 The mother says in her witness statement that the couple moved to Germany soon after A was born (#8) and that they had lived together for the majority of their relationship (#10); however, on taking specific instructions at the hearing Ms Scarano confirmed that the couple moved to Germany at the time of the marriage. This broadly corresponds with the father's evidence that they only moved to Germany after the marriage.
6 See Re E quoted at  above.
7 "Where the respondent's answer raises a defence under Art 13(b) the applicant should give immediate consideration to, and take steps, in the most expeditious way available, to ensure that information is obtained, whether from the Central Authority of the Requesting State or otherwise, as to the protective measures that are available, or could be put in place to meet the alleged identified risks"

matches:
EWCA
Art 12
Art 12
Art 3
UKHL
§42
EWCA
Art 13


text:
for the Western District of North Carolina, at Statesville.
Charlotte, North Carolina, for Appellee.
the prior offense, was life imprisonment. See id.
Supreme Courts 2010 decision in Carachuri-Rosendo v.
the Controlled Substance Act based on a prior conviction punished under North Carolinas structured sentencing scheme).
retroactively to cases on collateral review.
sentence exceeding one year. See N.C. Gen. Stat. 15A1340.17(c) (1999).
criminal history. See Simmons, 649 F.3d at 241.
qualified as a "felony drug offense."
The district court dismissed Powells motion as untimely.
his 2255 motion, Powell filed this appeal.
retroactively applicable to cases on collateral review.
punishment [in 2004 that] the law could not impose on him,"
U.S.C. 841(b)(1)(A), Powell faced the same maximum sentence of life imprisonment.
The principles governing whether a new right is retroactively applicable to cases on collateral review are well settled.
(plurality opinion) (quoting Desist v. United States, 394 U.S.
"the manner of determining the defendants culpability." Id.
And such procedural rules do not generally apply retroactively.
counsel against the States. See, e.g., Beard v. Banks, 542 U.S.
would count as an aggravated felony. See id.
INA. See id. at 2589.
be punished under any criminal statute. See Schriro, 542 U.S.
in fact a recidivist. See Carachuri, 130 S. Ct. at 2589.
"constitutes a procedural rule because it dictates what factfinding procedure must be employed" (emphasis added)).
the record of conviction for his second drug offense "contained no finding of the fact of his prior drug offense." Id.
only when the finding is a part of the record of conviction"
the range of conduct or the class of persons subject to criminal punishment, we hold that Carachuri is a procedural rule.
dismissed as untimely pursuant to 28 U.S.C. 2255(f)(3).
(2010) was wrongfully convicted of being an 18 U.S.C.
decides by construing Carachuri to announce a mere procedural, rather than a substantive, rule. Because I strongly disagree with the majoritys analysis, I am compelled to dissent.
courts denial of appellant Troy Powells 2255 motion.
hypothetical "defendant with the worst possible criminal history" for a sentence above one year. See United States v.
Harp, 406 F.3d 242, 246 (4th Cir. 2005).
627 F.3d 534, 536 (4th Cir. 2010) (recognizing that 28 U.S.C.
494 U.S. 484, 495 (1990)).
term "use" in such a way as to "narrow [its] scope"
and, in doing so, "place[d] particular conduct . . .
exchange for drugs. See Watson, 552 U.S. at 83.
U.S. at 352 (internal quotation marks omitted).
applied retroactively to cases on collateral review.
Thomas, 627 F.3d at 538 (alterations in original).
retroactive effect. Accord Bousley v. United States, 523 U.S.
614, 620-21 (1998) (recognizing substantive nature and retroactivity of rule announced in Bailey v. United States, 516 U.S.
a defendant with a previous "felony drug offense" conviction.
year and enhanced sentence up to four years).
such enhanced subsection (b)(1)(A) sentence would necessarily be.
analysis of Welch v. United States, 604 F.3d 408 (7th Cir.
2010). There, the Seventh Circuit had to decide the retroactivity of the rule announced in Begay v. United States, 553 U.S.
In essence, Begay narrowed substantially Mr.
Welchs exposure to a sentence of imprisonment.
a statutory maximum of 10 years imprisonment.
ACCA in Chambers applies retroactively to Mr. Shipp on collateral review." Id. at 1090, 1091 (quoting Schriro, 542 U.S.
respect to my good colleagues, they are patently wrong.
relief under new Begay rule).
constitutes a felony drug offense under [21 U.S.C.
530 U.S. at 490. Applying the Apprendi principle and overruling its own contrary precedent, the Court specified in Ring v.
not] find an aggravating circumstance necessary for imposition of the death penalty." See 536 U.S. 584, 609 (2002).
in [the] fashion [of Ring and Apprendi] are prototypical procedural rules").
may punish him for his violation of the law").
substantive rule. To be clear, it is not that I think 28 U.S.C.
within one year of Carachuri being decided. See 28 U.S.C.
made retroactively applicable to cases on collateral review").
thereon. Justice requires that their rights be fairly adjudicated.
with finality the retroactivity issue incorrectly decided today.

matches: v. v. v. v. v. v. v. v. v.


By Kyle D. Winey, Esq. and Robert Showers, Esq.
Whether beginning a new business venture, trying to protect your existing business as an employer or simply changing jobs or careers, a lawsuit is the last thing an employee or employer needs on their plate. Unfortunately, small business owners and employees looking for a better job or a change of pace can find themselves in deep legal trouble for failing to understand one crucial aspect of employment contracts and employment handbooks: non-compete and non-solicitation clauses. We have many horror stories of such employees and businesses that are instructive without using names and exact fact patterns to protect them. Here’s how to avoid having a legal nightmare.
In other words “a covenant not to compete is an agreement to prevent an employee from engaging in activities that actually or potentially compete with the employee’s former employer.”[ii] As such, the nature of non-compete clauses restricts a person’s employment actions after they leave an employer with whom they made a covenant not to compete. This puts an employer in an incredibly powerful position—a position that Virginia Courts have scrutinized carefully.
Non Solicitation clauses often accompany non-compete clauses and they are generally directed at either not soliciting current customers, prospective customers, or donors (nonprofit world) and/or not soliciting employees of the old business for purposes of starting a new business.
These clauses have a few important implications. First, “…the employer bears the burden of proving that the restraint is reasonable under the facts of the case.”[iii] Second, “covenants in restraint of trade are not favored, will be strictly construed, and, in the event of an ambiguity, will be construed in favor of the employee.”[iv] Essentially, while non-compete and non-solicitation clauses seem incredibly favorable to employers, those same employers bear an onus to show that the clause directly protects their interests without being overly burdensome to the employee(s) it affects.
Chances are, most prospective employers have paid an attorney to write the very employment contract they want you to sign. Of course, the employer had an attorney write that agreement to look out for their best interest—not yours. Accordingly, the following steps constitute a few easy ways for employees to mitigate any potential negative consequences that come as a result of the covenant not to compete that you entered with your employer.
Read the Agreement: While most might think of this as an obvious first step to signing any agreement, case studies aplenty show that prospective employees and employers alike could have saved themselves from costly litigation by simply reading the agreement.
Understand the Agreement: It is one thing to read the agreement, but another altogether to understand the agreement. There are three key components that every employer and employee should scrutinize when drafting and reviewing their employment contract, especially when looking at the non-compete and non-solicitation clauses contained therein.
Geographic Restrictions: Similar to the restriction in terms of function, non-competes can have dramatically different impacts based on the geographic scope to which they apply. For instance, a clothier at a mall might specify that their employees cannot work at any other clothier within one mile of their location.[xvii] This parameter is far less restrictive than an agreement which prohibited working for any competitors located anywhere in the world.[xviii] Knowing the geographic scope of your non-compete can make a huge impact on a job hunt after termination or separation.
Time Restrictions: Time restrictions, like restriction in terms of function and geographic scope, can impose a variety of restraints which may determine when you can engage in a trade similar to the one you performed with your previous employer. Like the other two factors, an employer will have the burden of proving, in a court of law, that the duration of their non-compete clause is reasonably calculated to protecting their interests while not overly burdening their previous employee’s ability to find meaningful work. Understanding the duration of the effects of your non-compete clause are essential to understanding what the clause itself means for your future employment prospects.
If either the employee or employer does not think you have a thorough understanding of the employment contract—and specifically that contract’s non-compete and non-solicitation clauses—it is wise to reach out to an attorney who can tell you what it means. If you are an employer, then you need to have a knowledgeable employment attorney draft reasonable and legally defensible non-compete and non-solicitation clauses. Remember, wise employers often spend thousands of dollars crafting each clause of the contract to secure their interests. It never hurts to get an attorney on the employee’s side that can look after his or her interests.
Giving your employment contract a thorough read whether employer or employee will not only help you understand exactly what you are signing up for, but it could also keep you out of hot water in the future as an employee or protect your interests as an employer.
If you are planning to change careers or start your own venture, it is imperative to understand the ramifications of the current employment contract by which you are bound. If you do not recall your agreement, ask your employer for it. Then, review the agreement paying close attention to the key components set forth under the section above entitled “Signing Your Employment Agreement.” When reviewing the agreement, it is never a bad idea to enlist the help of a seasoned attorney who can tell you whether the agreement is binding and, if so, to what extent it will affect your next career move(s).
From an employer’s point of view, make sure your contracts are reasonable as to the three points above: functional, geographic, and time restrictions. If they are not and the employee is going to leave or be terminated, consider a separation agreement which, among many other things, cures the deficiencies beforehand and waives any legal claims. Consulting a knowledgeable employment lawyer like us could save the employer much money, time, and grief.
The sooner you know the nuances of your non-compete and non-solicitation the better. Failing to understand the ramifications of your non-compete and non-solicitation clauses after leaving your previous employer could result in a myriad of legal troubles. If your employment agreement contains a valid non-compete and/or non-solicitation clause, it’s best to abide by an over-abundance of caution and stick to it. If you are not sure if your agreement is binding, or if the clause would be valid in a court of law pursuant to the standard described above in Section I, “Background and Legal Standard,” it would probably be in your best interest to have an attorney give you a definite answer.
Ideally, non-compete and non-solicitation clauses keep things fair: they allow an employee to gain valuable experience in exchange for a contractual covenant that they will not use that experience to harm their existing employer after parting ways. Despite this idealistic conception, however, it’s always better to be safe than sorry—especially when a thorough understanding of your non-compete and non-solicitation clauses could save you thousands in legal fees and appropriately protect your business or set you in your new business on your new road to success with confidence, poise, and peace of mind.
Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers, LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact H. Robert Showers, Esq. at hrs@simmsshowerslaw.com or Kyle Winey at kdwiney@simmsshowerslaw.com for legal advice that will meet your specific needs.
[i] Omniplex World Servs. Corp. v. US Investigations Servs., 270 Va. 246, 249-50 (2005) (internal citations omitted).
[iii] Simmons v. Miller, 261 Va. 561, 580-81, 544 S.E.2d 666, 678 (2001) (Citing Blue Ridge Anesthesia v. Gidick, 239 Va. 369, 371-72, 389 S.E.2d 467, 468-69 (1990)).
[iv] Modern Env’ts v. Stinnett, 263 Va. 491, 493, 561 S.E.2d 694, 695 (2002) (citing Richardson v. Paxton Co., 203 Va. 790, 795, 127 S.E.2d 113, 117 (1962)).
[v] Omniplex World Servs. Corp. v. US Investigations Servs., 270 Va. 246, 249, 618 S.E.2d 340, 342 (2005).
[vi] Simmons v. Miller, 261 Va. 561, 580-81 (2001).
[ix] Omniplex World Servs. Corp. v. US Investigations Servs., 270 Va. 246, 249-50, 618 S.E.2d 340, 342 (2005). Compare Motion Control Sys., 262 Va. at 37-38, 546 S.E.2d at 426 (covenant [*250] not to compete restricting employment with motor manufacturers that did not manufacture motors similar to employer overbroad [***6] because covenant did not protect against competition), and Richardson v. Paxton Co., 203 Va. 790, 795, 127 S.E.2d 113, 117 (1962) (covenant not to compete that restricted former employee, who sold specific supplies and services, from working for any employer involved with any kind of supplies, equipment, or services in the same industry overbroad because covenant encompassed business for which employer did not compete), with Blue Ridge Anesthesia and Critical Care, Inc. v. Gidick, 239 Va. 369, 373, 389 S.E.2d 467, 469, 6 Va. Law Rep. 1581 (1990) (non-competition agreement reasonable because restriction protected against direct competition by prohibiting former employees from employment with another company in a position selling similar medical equipment to that sold by former employer), and Roanoke Eng’g Sales Co. v. Rosenbaum, 223 Va. 548, 553, 290 S.E.2d 882, 885 (1982)(non-competition covenant reasonable because employment restriction limited to activities similar to business conducted by former employer).
[x] Preferred Sys. Solutions, Inc. v. GP Consulting, LLC, 284 Va. 382, 392 (2012); see Totten v. Emple. Benefits Mgmt., 61 Va. Cir. 77, 78-79 (Roanoke 2013) (citing Paramount Termite Control Co. Inc. v. Rector, 238 Va. 171, 174-75 (1989)).
[xi] Anteon Corp. v. BTG Inc., 62 Va. Cir. 41, 44 (Fairfax 2003).
[xii] Knowles v. New Age Digital, Inc., 2008 Va. Cir. LEXIS 302, *8-9 (Chesterfield 2008).
[xiv] See Simmons v. Miller, 261 Va. 561, 580-81, 544 S.E.2d 666, 678 (2001).
[xv] See Motion Control Sys. v. East, 262 Va. 33, 546 S.E.2d 424 (2001) (finding the Plaintiff’s non-compete clause invalid because it “imposed additional restraints which are far greater than reasonably necessary to protect [Plaintiff] in [its] legitimate business enterprise.” Motion Control Sys., 252 Va. at 36).
[xvi] See Motion Control Sys. v. East, 262 Va. 33, 546 S.E.2d 424 (2001) (finding the Plaintiff’s non-compete clause invalid because it “imposed additional restraints which are far greater than reasonably necessary to protect [Plaintiff] in [its] legitimate business enterprise.” Motion Control Sys., 252 Va. at 36).
[xvii] See Saks Fifth Ave., Inc. v. James, Ltd., 272 Va. 177 (2006) (covenant not to compete which forbade employees of men’s clothing store to work at any other men’s clothing stores within a one (1) mile radius for a period of three (3) years following termination).
[xviii] See Simmons v. Miller, 261 Va. 561 (2001) (covenant not to compete which prohibited Defendant from engaging in the business of importing cigars—Plaintiff’s trade—anywhere in the world).
[xix] See e.g. McGladrey & Pullen, L.L.P. v. Shrader, 62 Va. Cir. 401, 410 (Cir. Ct. 2003) (stating “The Virginia Computer Crimes Act prohibits, inter alia, any person “without authority” to use a computer or computer network to “make … an unauthorized copy … of computer [**18] data. . . .” Va. Code § 18.2-152.4. The term “without authority” refers to a person who uses a computer without permission or, if the person has some right to use the computer, “uses a computer … in a manner exceeding such right or permission.” Va. Code § 18.2-152.2.”).