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To Employ(ee) or Not to Employ(ee): Are Uber Drivers Employees or Independent Contractors?
Uber drivers in the state of California are challenging Uber Technologies, Inc. (Uber) in a class action suit, arguing that they should be classified as employees instead of independent contractors. The classification of Uber’s drivers will dictate the drivers’ rights and eligibility for employment related benefits. The drivers will succeed in the suit because Uber exercises the same level of control over its drivers that an employer would exhibit and drivers are essential to Uber’s business.
Uber is a company that manages and promotes a mobile phone application (also called an “app”) that goes by the same name. Uber is a service that states it connects “riders to drivers through….apps,” making cities more accessible. The general concept is simple: the Uber app works to connect passengers with a driver. A passenger logs into the Uber app and hails a driver. The driver then accepts the rider and travels to the rider’s location to pick them up. The rider does not pay the driver in cash; instead the monetary transactions are done via credit or debit card through the app—with no tip required.
Uber uses an algorithm that determines ride rates based on the relative supply and demand of riders to drivers at any given moment. Based on this fee structure, an Uber driver’s compensation is sporadic and difficult to rely upon in any consistent fashion. For some drivers the rates are so low and sporadic that they do not even meet minimum wage.
Uber says that it does not provide a taxi service; instead it provides only an app service that connects drivers to riders. But Uber’s interpretation of the employment relationship between the company and the drivers is not the correct legal classification.
Uber’s business model relies on drivers being classified as independent contractors instead of employees. Classifying the drivers as independent contractors comes with a specific set of advantages for the ride-sharing company. As independent contractors, Uber drivers are not eligible for any protections required by employment law statutes because they are not employees. As such, “independent contractors are not covered by the minimum wage, workers’ compensation, unemployment compensation, occupational safety and health laws, collective bargaining laws, Social Security, disability, [or] anti-discrimination laws,” among other protections. Accordingly, classifying its drivers as independent contractors saves Uber a great deal of money.
As independent contractors, Uber’s drivers assume a level of responsibility that employees would not be subject to. First, Uber drivers are responsible for their own gas. Second, Uber drivers have to supply and upkeep their own vehicles. Third, Uber says it provides end-to-end insurance coverage, however, a driver is not covered under the insurance plan if traveling to a passenger area without first accepting a trip.
The California court will use the economic realities test to determine the nature of the relationship between the worker and the principal. The test involves a non-exhaustive list of factors that includes: (1) the degree of control exerted by the alleged employer over the worker; (2) the worker’s opportunity for profit or loss; (3) the worker’s investment in the business; (4) the permanence of the working relationship; (5) the degree of skill required to perform the work; and (6) the extent to which work is an integral part of the alleged employer’s business. The California court will utilize the economic realities test to determine which category Uber drivers match more closely.
In Berwick v. Uber Technologies, the California Labor Commission found that an Uber driver, Barbara Berwick, was not an independent contractor but an employee. The commission focused on several factors to make their determination. First, the commission zeroed in on the degree of control that Uber exercises over its drivers. Uber argued that it exercises little control over drivers, but the court disagreed. The commission reasoned that the “minimal degree of control” exercised by the employer over the details of work was not an accurate way of examining the relationship because the work was not skill intensive and it was an essential part of the employer’s business. As such, the employer exercised all necessary control over the operation as a whole.
The commission held that Uber exercises control over many aspects of the operation. First, Uber vets prospective drivers, who must provide banking and social security information as well as pass Uber’s background and DMV checks. Second, Uber exercises control over the tools that drivers use. Uber drivers register their vehicles with Uber and the vehicles must be less than 10 years old. Finally, Uber, and not the drivers, has the ability to negotiate trip pricing and cancellation fees with passengers.
Similar to the California Labor Commission, the Kansas Supreme Court addressed the employee or independent contractor issue in Craig v. FedEx Ground Package Sys., Inc. In Craig, FedEx delivery drivers brought suit against FedEx, alleging that the package delivery service wrongly classified the drivers as independent contractors instead of employees. The court determined that FedEx exercised control over the drivers in a manner that was consistent with the employer-employee relationship.
The court deemed FedEx drivers to be an integral part of the FedEx business, which tipped the scales in favor of an employee label. FedEx argued that the drivers were distinct from the business, but the court stated that businesses do not ordinarily trust their core functions to independent contractors, over which the business has minimal control. The court found that FedEx maintained performance oversight that could lead to termination, which implies an employer-employee relationship. Also, the court noted that a driver being able to end the employment relationship unilaterally at any point in time was contrary to an independent contractor; ordinarily contractors are “expected to complete all work contemplated by the contract.” The court pointed to the fact that FedEx drivers serve the company and do not offer their services to the general public. The court stated that a worker’s ability to generate more income based on effort expended does not necessarily negate the existence of an employment relationship.
Similar to Berwick, FedEx drivers’ compensation rates are not negotiable by the individual driver, which led the court to find an employee relationship. Finally, the court stated that FedEx’s requirement that the worker personally perform the job suggested that FedEx’s interest in the methods used to accomplish the work, and not just the results obtained, was indicative of an employer-employee relationship.
Berwick and Craig are not precedential to the upcoming class action. But the decisions should provide some framework for how the California court will proceed. Uber, like FedEx, exercises quite a bit of control over its drivers while professing to be hands off. Assuming the California court agrees with the findings in Berwick and incorporates the determinations from the Craig ruling, the court will hold that Uber’s drivers are employees and not independent contractors.
First, Uber’s performance review system for drivers is indicative of an employer-employee relationship because falling below a 4.6 rating will result in a driver losing access to Uber’s app, which is similar to a termination. Second, Uber drivers serve Uber. The drivers do not attempt to serve the general public by offering their driving services outside of using Uber’s name and platform. Third, while Uber may argue that drivers control their own income, which evidences an independent contractor, the ability to generate more income based on expending more effort does not necessarily mean that the drivers are independent contractors. Fourth, Uber drivers, like the FedEx drivers in Craig, are not able to negotiate rates with any of the other parties involved, which is indicative of an employer-employee relationship. Finally, Uber drivers are required to perform the duties themselves, because Uber drivers are not allowed to let another person use their access credentials on the Uber app. In other words, Uber is not just interested in the results, but also the process, and that is indicative of an employer-employee relationship.
The California court will likely rule that Uber drivers are employees instead of independent contractors, based on employment relationship criteria. A loss in this suit in California will not impact Uber in other markets right away, but may lead to similar findings in other jurisdictions. If so, Uber may need to adjust its employment practices, possibly requiring Uber to be more selective of drivers in an attempt to cut down its workforce. Uber may also have to start monitoring the work hours of drivers and ensure that minimum wage requirements are met. Moreover, there will be consequences under the Affordable Care Act regarding Uber’s responsibility to adhere to certain insurance coverage mandates.
 O’Connor v. Uber Technologies, Inc., 82 F. Supp. 3d 1133 (N.D. Cal. 2015).
 Lauren Goode, Worth it? An App to Get a Cab, WSJ.com (June. 17, 2011), http://blogs.wsj.com/digits/2011/06/17/worth-it-an-app-to-get-a-cab/.
 Uber.com (Sept. 30, 2015), https://www.uber.com/about.
 Matthew Hughes, What is Uber And Why Is It Threatening Traditional Taxi Services?, Makeuseof.com (Jul. 4, 2014), http://www.makeuseof.com/tag/uber-threatening-traditional-taxi-services/.
 Nicholas Diakopoulos, How Uber surge pricing really works, The Washington Post (Apr. 17, 2015), http://www.washingtonpost.com/news/wonkblog/wp/2015/04/17/how-uber-surge-pricing-really-works/.
 Maya Kosoff, UBER DRIVERS SPEAK OUT: We’re Making A Lot Less Money Than Uber Is Telling People, Business Insider (Oct. 29, 2014), http://www.businessinsider.com/uber-drivers-say-theyre-making-less-than-minimum-wage-2014-10.
 Roberto Baldwin, California Uber drivers can join in class-action lawsuit, Engadget (Sept. 1, 2015), http://www.engadget.com/2015/09/01/uber-class-action/.
 Contingent Workers, U.S. Dep’t of Labor (Oct. 10, 2015), http://www.dol.gov/_sec/media/reports/dunlop/section5.htm.
 Nairi, Insurance for uberX with Ridesharing, Uber.com (Feb. 10, 2014), http://newsroom.uber.com/2014/02/insurance-for-uberx-with-ridesharing/.
 Craig v. FedEx Ground Package Sys., Inc., 335 P.3d 66, 75 (2014).
 Berwick v. Uber Technologies, Inc., 2015 Cal. Wrk. Comp. LEXIS 118, *19 (W.C.A.B. 2015).
 Id at 10-12(quoting Yellow Cap Cooperative v. Workers Comp. App. Board, 226 Cal.App.3d 1288 (1991)).
 Id at 13 (quoting Toyota Motor Saves v. Superior Court, 220 Cal.App.3d 864, 876 (1990)).
 Id. at 90; see also S.G. Borello & Sons, Inc. v. Dep’t of Indus. Relations, 769 P.2d 399 (1989)(because sharefarmers are able to generate more personal revenue by picking more and better quality crop is not indicative of ability to incur a loss or profit).
 Cf. Craig, (court determining that worker’s pay may vary based on effort, but that fact does not negate the existence of an employment relationship and FedEx maintained control over driver route assignments).
 Cf. Craig, (court determining drivers not having the ability to negotiate compensation rates may be evidence of an employer-employee relationship).
 Cf. Craig, (court finding that requiring a worker to personally perform a job suggests that the principal holds an interest in the method used to accomplish the work, not just the results, and that is evidence of an employer-employee relationship).
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HAZEN PAPER COMPANY vs. UNITED STATES FIDELITY AND GUARANTY COMPANY.
CIVIL ACTION commenced in the Superior Court Department on October 15, 1986.
The case was heard by Cortland A. Mathers, J., on motions for summary judgment.
Stephen J. Smirti, Jr., of New York, & John D. Lanoue (Edward T. Finneran, III, & David M. Cassidy of New York, with them) for the defendant.
Paul F. Ware, Jr. (Nancer H. Ballard with him) for the plaintiff.
Thomas W. Brunner, James M. Johnstone, Lyn S. Entzeroth & John W. Cavilia of the District of Columbia, & Peter G. Hermes & Molly H. Sherden, for Insurance Environmental Litigation Association & another, amici curiae, submitted a brief.
Henry P. Sorett & Anne W. Chisholm, for Massachusetts Natural Gas Council, amicus curiae, submitted a brief.
Thomas L. Crotty, Jr., & James E. McGuire, for Haartz Corporation & others, amici curiae, joined in a brief.
WILKINS, J. Hazen Paper Company (Hazen) brought this action in October, 1986, seeking, among other things, a declaration that its insurer (USF&G) was obliged to defend and indemnify it with respect to claims against Hazen arising out of alleged environmental pollution by a facility to which Hazen had sent solvents for recycling from 1976 to 1979.
Hazen, and others, reimbursement for costs incurred and commitments toward the cost of future response measures. In 1986, the DEQE by letter notified the Re-Solve Generators Committee (and Hazen) that, pursuant to G. L. c. 21E (1988 ed.), it was seeking reimbursement for the cost of removing 115 drums of hazardous material from the Re-Solve site.
On cross motions for summary judgment, a judge of the Superior Court ruled that Hazen was "entitled to a declaratory judgment declaring (1) that defendant [USF&G] is obligated to defend Hazen against the claims made against Hazen by the [EPA] and the [DEQE] and to reimburse Hazen for its defense costs incurred to date; and (2) that USF&G is obligated to indemnify and pay on behalf of Hazen any sums for which Hazen is liable as a result of the EPA' and the DEQE's claims." A single justice of the Appeals Court authorized USF&G to appeal from the interlocutory order (a count based on G. L. c. 93A and G. L. c. 176D remained undisposed of). This court granted each party's application for direct appellate review.
for cleanup costs, arguing that such costs are not "damages" within the policy terms and that, in any event, any amounts payable by Hazen are not amounts Hazen is obliged to pay because of "property damage." The motion judge rejected USF&G's arguments on these points. We agree with him as to the claim asserted by the EPA but not as to the independent claim of the DEQE.
We shall now turn to an explanation of why the claims asserted by the EPA (but not that independently asserted by DEQE) are (1) ones as to which USF&G had a duty to defend and (2) involve claims for damages because of property damage.
1. USF&G argues that it has no duty to defend Hazen with respect to any claims of the EPA and DEQE until those claims are asserted in a lawsuit. Hazen replies that the letters of notification from those agencies had the same practical effect as the filing of a complaint in a legal action because Hazen's rights and obligations could be substantially affected by actions and determinations occurring before any lawsuit would be commenced.
The policy provides that USF&G has the "duty to defend any suit against [Hazen] seeking damages on account of . . . property damage" to which the insurance applies. In the next section of this opinion we shall discuss whether the governmental claims seek "damages on account of . . . property damage." Here, the question is how we should read the word "suit," which is not defined in the policy. Obviously, on the record no lawsuit has been brought. Literally, there is no suit. That fact alone has been sufficient to provide the answer for some courts. See Aetna Casualty & Sur. Co. v. Gulf Resources & Chem. Corp., 709 F. Supp. 958, 960 (D. Idaho 1989) (Idaho law) ("under the plain meaning of the policy terms, no duty to defend has been triggered"); Technicon Elecs. Corp. v. American Home Assurance Co., 141 A.D.2d 124, 145-146 (N.Y. 1988), aff'd on other grounds, 74 N.Y.2d 66 (1989). It is, however, not sufficient to provide an answer for us.
DEQE were prepared to contract for the "longer term phases of clean-up of the site," and EPA would undertake further activities "unless EPA determines that such action will be done properly by a responsible party." EPA had concluded, based on the records from the Re-Solve facility, that Hazen might be a responsible party with respect to that site.
EPA wrote that it wished to discuss Hazen's "voluntary involvement in the measures necessary to remedy the problems presented by the hazardous substances at Re-Solve." A superficial view of the EPA letter might lead one to conclude that it is not analogous to a complaint. See, e.g., Technicon Elecs. Corp. v. American Home Assurance Co., supra at 146 (EPA letter was invitation to voluntary action, not coercive demand letter). The letter continues, however, declaring that "the only form of voluntary involvement" that EPA would consider is "commitment to a complete implementation of all the measures needed on the site proper and reimbursement of the expenses already incurred by EPA and DEQE." It then describes those measures. EPA asked for a written response within thirty days, announced a planned meeting for all potentially responsible parties, and requested (pursuant to 42 U.S.C. Sections 9604 and 6927 ) information and records regarding hazardous substances that Hazen sent to the Re-Solve facility. The letter advised Hazen of criminal penalties for any failure to furnish the requested information. EPA stated that, if it were to receive no response within the next thirty days, it would assume that Hazen "has declined to undertake voluntary response activities at the Re-Solve site."
that Hazen purchased from USF&G would be substantially compromised if USF&G had no obligation to defend Hazen's interests in response to the EPA letter. That letter asserts that "actual releases of hazardous substances" were occurring at the Re-Solve site. As will be seen, that allegation sets forth a claim of damages on account of property damage. The letter from the DEQE, however, claims only a threat of the release of hazardous material from certain "overpacked drums" temporarily stored on the Re-Solve site. That letter does not allege the occurrence of any damage that falls within the policy coverage. The DEQE claim, as expressed in the letter, is not the equivalent of a suit. Summary judgment declaring that USF&G was obliged to defend against the DEQE claim was not warranted.
for the alleged polluter to ignore because they often result in dispositive, extrajudicial solutions. [Note 4] The consequences of the receipt of the EPA letter were so substantially equivalent to the commencement of a lawsuit that a duty to defend arose immediately. The EPA letter was not the equivalent of a conventional demand letter based on a personal injury claim. See Aetna Casualty & Sur. Co. v. Gulf Resources & Chem. Corp., 709 F. Supp. 958, 960 (D. Idaho 1989) (the insureds "point out that the identification of them as PRPs' carries more serious consequences than, for example, a demand letter between private parties. For example, they argue that they can be fined for failure to cooperate in the EPA's process of planning the cleanup. Also, if the EPA ultimately recovers the costs of response, defendants' failure to settle prior to commencement of litigation by the EPA could increase the amount of recovery against defendants").
are very limited (Section 9607[b]). Moreover, the risk to which Hazen was exposed was substantial because, as a practical matter, its liability is joint and several. See O'Neil v. Picillo, 883 F.2d 176, 178-179 (1st Cir. 1989), cert. denied sub nom. American Cyanamid Co. v. O'Neil, 110 S. Ct. 1115 (1990). Early involvement in the settlement discussions is thus often crucial to protect one's interests. Any court action by EPA is limited to the administrative record (Section 9613[j] [1982 & Supp. V 1987]), and judicial review considers only whether the EPA "decision was arbitrary and capricious or otherwise not in accordance with law" (Section 9613[j]). Thus participation in the development of that record can be crucial. Settlement of EPA claims against potentially responsible parties (see Sections 9613[f], 9622[d]), with protection against claims for contribution (Section 9613[f]), is a desired goal. The situation was such that the opportunity to protect Hazen's interests could well have been lost, long before any lawsuit would be brought. [Note 5] It would be naive to characterize the EPA letter as a request for voluntary action. Hazen had no practical choice other than to respond actively to the letter.
The early involvement of an insurer in such a process is obviously important to the insured (and very possibly to the insurer), assuming, of course, that the claim is one that falls within the coverage of the policy. We turn now to the question of the extent to which cleanup costs are within the coverage of the policy.
2. USF&G argues that the claims asserted by EPA and DEQE are not within the policy coverage because, in demanding payment of cleanup costs, they are not seeking "damages on account of . . . property damage." The record tells us little about the nature of the pollution at the Re-Solve site and almost nothing about any property damage that the release of pollutants may have caused.
We have little difficulty, however, in concluding as to the DEQE letter that a claim for the removal of certain stored drums of allegedly hazardous materials does not assert a claim for damages on account of property damage. Certainly, the record does not show the existence of no dispute of material fact whether property damage occurred. Hazen, therefore, was not entitled to a summary judgment declaring that the cost of removing the drums was covered by the USF&G policy. Damages on account of property damage do not include costs incurred in complying with an injunction or order directed to damage prevention or costs incurred in complying with the law, where there has been no property damage. See Aerojet-Gen. Corp. v. Superior Court, 211 Cal. App. 3d 216, 237 (1989) (response costs for extant pollution, but not for future pollution, are "damages").
owing because of property damages are remedial measures taken after pollution has occurred, but preventive measures taken before pollution has occurred are not costs incurred because of property damage"). Compass Ins. Co. v. Cravens, Dargan & Co., 748 P.2d 724, 728-730 (Wyo. 1988). Contra Patrons Oxford Mut. Ins. Co. v. Marois, 573 A.2d 16, 18-20 (1990). We join the majority.
When pollution has occurred, cleanup costs are damages within the policy language because in that circumstance the word "damages," which is not defined in the policy, is ambiguous. If there are two rational interpretations of policy language, the insured is entitled to the benefit of the one that is more favorable to it. See Slater v. United States Fidelity & Guar. Co., 379 Mass. 801 , 804 (1980); Palmer v. Pawtucket Mut. Ins. Co., 352 Mass. 304 , 306 (1967); MacArthur v. Massachusetts Hosp. Serv., Inc., 343 Mass. 670 , 672 (1962). It is also appropriate, in construing an insurance policy, to consider what an objectively reasonable insured, reading the relevant policy language, would expect to be covered. See Home Indem. Ins. Co. v. Merchants Distribs., Inc., 396 Mass. 103 , 107 (1985). Cf. Bond Bros. v. Robinson, 393 Mass. 546 , 551 (1984). On this approach, a reasonable policyholder reading the language would fairly expect that the policy covered amounts he must spend to correct pollution damage for which the law holds him responsible.
equitable principles, whereas to lawyers "damages" may refer only to amounts recoverable in an action at law measured by the harm caused to a wronged plaintiff.
Some courts denying coverage have been concerned that response costs might greatly exceed any decrease in the value of the property damaged by pollution. See, e.g., Continental Ins. Cos. v. Northeastern Pharmaceutical & Chem. Co., 842 F.2d 977, 986-987 (8th Cir. 1988); Maryland Casualty Co. v. Armco, Inc., supra at 1353. Others have thought it significant, in denying coverage, that the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. Sections 9601-9657) makes a distinction between harm to natural resources (which the courts equate to "damages") and cleanup costs. See, e.g., Cincinnati Ins. Co. v. Milliken & Co., 857 F.2d 979, 980 (4th Cir. 1988); Continental Ins. Cos. v. Northeastern Pharmaceutical & Chem. Co., supra at 987; Verlan, Ltd. v. John L. Armitage & Co., 695 F. Supp. 950, 954-955 (N.D. Ill. 1988). Neither of these facts should have any bearing on the meaning of the word "damages" in the policy. If an environmental statute creates liability for the cost of cleaning up a polluted site, it makes no difference either that that measure of liability may exceed common law damages or that, in some instances, the government could seek to recover for damage to natural resources.
The important point is that, if Hazen is legally liable to pay certain amounts because of property damage for which the law holds it responsible, and USF&G is legally obliged to pay "damages on account of . . . property damage," Hazen has policy coverage, subject, of course, to the application of other policy provisions. The summary judgment record is not sufficient, however, to permit a determination of what damage on account of property damage occurred for which USF&G must indemnify Hazen.
Company is vacated. The case is remanded to the Superior Court for further proceedings.
[Note 1] We decline to decide whether the summary judgment record demonstrates no dispute of material fact as to whether an occurrence took place within the definition of "occurrence" in the policy. Although one may infer that any discharge of pollutants was "an accident" and the damage caused by such discharges was "neither expected nor intended from the standpoint of [Hazen]," the record is quite bare of relevant facts on which a judge may properly rely in deciding the point on summary judgment. The question is open during further proceedings in the Superior Court.
[Note 2] Compare Fireman's Fund Ins. Cos. v. Ex-Cell-O Corp., 662 F. Supp. 71, 75 (E.D. Mich. 1987) ("Potentially responsible person" [PRP] letter from governmental agency is a "suit," as is "any effort to impose on the policyholders a liability ultimately enforceable by a court") and United States Fidelity & Guar. Co. v. Specialty Coatings Co., 180 Ill. App. 3d 378, 388-389 (1989) (EPA PRP letter obliges insurer to defend) with Detrex Chem. Indus., Inc. v. Employers Ins. of Wausau, 681 F. Supp. 438, 446-447 (N.D. Ohio 1987) (EPA PRP letter does not meet the attributes of a suit, but, because the administrative record would be part of any EPA enforcement action, defense costs expended in developing that record would be reimbursable by the insurer, once EPA action is filed or the EPA issues a remedial order under 42 U.S.C. Section 9604 or Section 9606) and Technicon Elecs. Corp. v. American Home Assurance Corp., supra at 145-146 (EPA PRP letter did not institute a "suit" so as to require a defense; it "was an invitation to voluntary action").
For cases holding that demands for action issued by State agencies were "suits," see Avondale Indus., Inc. v. Travelers Indem. Co., 887 F.2d 1200, 1206 (2d Cir. 1989) ("A request to participate voluntarily in remedial measures is not the same as the adversarial posture assumed in the coercive demand letter that Avondale received in the instant case"); Polkow v. Citizens Ins. Co., 180 Mich. App. 651, 657 (1989) ("subjecting the insured to administrative mechanisms mandating an environmental investigation and cleanup, backed by the power to expose the insured to a money judgment in a court of law, amounts to a `suit' for purposes of invoking the coverage of the policy"); C.D. Spangler Constr. Co. v. Industrial Crankshaft & Eng'g Co., 326 N.C. 133, 153-154 (1990) (issuance of State compliance orders directing remedial action constitutes "suits" within the meaning of the policies). Contra Patrons Oxford Mut. Ins. Co. v. Marois, 573 A.2d 16, 20 (1990).
[Note 3] See EPA Interim Guidance on Notice, Letters, Negotiations, and Information Exchange Under Section 122 of CERCLA, 53 Fed. Reg. 5298, 5298 (1988) ("A fundamental goal of the CERCLA enforcement program is to facilitate voluntary settlements"); Environmental Protection Agency Interim Enforcement Policy for Private Party Settlements Under the Comprehensive Environmental Response, Compensation, and Liability Act, 50 Fed. Reg. 5034, 5035 (1985) ("Fund-financed cleanups, administrative action and litigation will not be sufficient to accomplish CERCLA's goals . . . voluntary cleanups are essential to a successful program for cleanup of the nation's hazardous waste sites"). See also Strock, Settlement Policy Under the Superfund Amendments and Reauthorization Act of 1986, 58 U. Colo. L. Rev. 599, 616 (1988) ("The theory underlying the Senate settlement amendments was that PRPs were facing incentives which would, in some circumstances, incline them toward litigation and the system toward delay").
[Note 4] See EPA Interim Guidance on Notice, 53 Fed. Reg. 5298, 5302 (1988) (PRP letter "should be used as a vehicle for informing PRPs of the availability of an administrative record that will contain documents which form the basis for the Agency's decision on the selection of a remedy"). The EPA also has the discretion to prepare nonbinding preliminary allocations of responsibility to expedite settlements and remedial actions. 42 U.S.C. Section 9622(e)(3)(A) (1982 & Supp. V 1987). Neither this allocation nor any settlement decision based on it is subject to judicial review. Section 9622(e)(3)(C) & (E).
[Note 5] Hazen's brief advises us that certain potentially responsible parties involved in the Re-Solve site, including Hazen, settled with the EPA concerning the payment of cleanup costs. On February 9, 1989, the terms of that settlement were included in a consent decree in an action brought by the United States and the Commonwealth.
[Note 6] An overwhelming majority of cases recognize that response costs can be incurred on account of property damage. See, e.g., Continental Ins. Cos. v. Northeastern Pharmaceutical & Chem. Co., 842 F.2d 977, 983-984 (8th Cir. 1988); Chesapeake Utils. Corp. v. American Home Assurance Co., 704 F. Supp. 551, 565-566 (D. Del. 1989); United States Fidelity & Guar. Co. v. Thomas Solvent Co., 683 F. Supp. 1139, 1168 (W.D. Mich. 1988); New Castle County v. Hartford Accident & Indem. Co., 673 F. Supp. 1359, 1366 (D. Del. 1987); United States Fidelity & Guar. Co. v. Specialty Coatings Co., 180 III. App. 3d 378, 393-394 (1989); C.D. Spangler Constr. Co. v. Industrial Crankshaft & Eng'g Co., 326 N.C. 133, 151 (1990); Boeing v. Aetna Casualty & Sur. Co., 113 Wash. 2d 869, 885-887 (1990). Contra, e.g., Mraz v. Canadian Universal Ins. Co., 804 F.2d 1325, 1329 (4th Cir. 1986); Aetna Casualty & Sur. Co. v. Gulf Resources & Chem. Corp., 709 F. Supp. 958, 961 (D. Idaho 1989).
[Note 7] For recent opinions that have held that environmental damage response costs are damages, see, e.g., Avondale Indus., Inc. v. Travelers Indem. Co., 887 F.2d 1200, 1207 (1989); Chesapeake Utils. Corp. v. American Home Assurance Co., 704 F. Supp. 551, 560-561 (D. Del. 1989); Aerojet-Gen. Corp. v. Superior Court, supra at 237 ("We concur with the majority of reported decisions that response costs . . . are `damages because of . . . property damage'"); United States Fidelity & Guar. Co. v. Specialty Coatings Co., 180 III. App. 3d 378, 391-392 (1989); United States Aviex Co. v. Travelers Ins. Co., 125 Mich. App. 579, 589-590 (1983); Broadwell Realty Servs., Inc. v. Fidelity & Casualty Co., 218 N.J. Super. 516, 526-528 (1987).
For recent opinions that have held that response costs are not damages, see, e.g., Continental Ins. Cos. v. Northeastern Pharmaceutical & Chem. Co., 842 F.2d 977, 986-987 (8th Cir.) (five-to-three decision), cert. denied sub nom. Missouri v. Continental Ins. Cos., 488 U.S. 821 (1988); Maryland Casualty Co. v. Armco, Inc., 822 F.2d 1348, 1352-1353 (4th Cir. 1987), cert. denied, 484 U.S. 1008 (1988); Verlan, Ltd. v. John L. Armitage & Co., 695 F. Supp. 950, 954-955 (N.D. Ill. 1988).
A different Court of Appeal in California distinguished the Aerojet-Gen. case, supra, from the one before it to the extent that the case before it involved the question whether there was coverage as a matter of law for all "those costs which unambiguously flow from compliance with a mandatory governmental injunction." AIU Ins. Co. v. Superior Court, 213 Cal. App. 3d 1219, 1232 (1989). That court agreed that there would be coverage where a governmental agency seeks recompense for damage to its proprietary governmental interests in property but rejected coverage for "the costs of compliance with the police power." Id.
Unlike the court in the AIU Ins. Co. case, we think it unimportant whether the governmental agency is asserting its proprietary governmental interests or the interests of someone else whose property sustained damage because of the discharge of pollutants, or both. As cases, cited above, following the majority rule indicate, it does not matter in deciding the coverage question whether the governmental agency suffered property damage, provided some third party has a claim for damages on account of property damage.

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First of all, happy Memorial Day to everyone, and thank you to our active and retired service men and women and their families for the sacrifices they have made and continue to make for all of us.
As we reach the end of May, it has been a good month for federal court plaintiffs seeking attorney’s fees. A few days ago, I wrote about In re Abrams & Abrams, P.A.; St. Martin, Williams and Bourque, in which the Fourth Circuit addressed the reasonableness of — and implicitly upheld — a substantial contingency fee in a personal injury case. Then, last week, the Supreme Court decided Hardt v. Reliance Standard Life Ins. Co., 2010 WL 2025127 (U.S.), dealing with awards of attorney’s fees in ERISA cases.
For additional discussion of Hardt, I refer you to SCOTUSBlog, which discussed the decision here, to this post by Scott Calvert at Barger & Wolen LLP’s Life, Health and Disability Insurance Blog, and to this one by Stephen Rosenberg at Boston ERISA and Insurance Litigation Blog.
Readers of this blog know that I have complained about discussed the restrictions presented by ERISA: its broad preemptive scope; lack of remedies; and deferential standard of review (often) applicable to plan administrator’s actions. And until Hardt, you could have added limited availability of attorney’s fees. Of course, fees could be awarded at the discretion of the court "to either party" under 29 U.S.C.§ 1132(g)(1), but, as you will read, the Fourth Circuit interpreted that statute to mean to "the prevailing party."
Here are the facts: Reliance denied Hardt’s claim for long-term disability benefits, even though it appeared that Reliance disregarded evidence of Hardt’s neuropathy, which would have entitled her to continued benefits. She filed suit, and the parties ultimately filed cross-motions for summary judgment. The court for the Eastern District of Virginia denied both parties’ motions, and explained that even though it was "inclined to rule in Ms. Hardt’s favor," it concluded that it should remand the claim so that Reliance could consider Hardt’s evidence. Following its review and consideration of Hardt’s evidence regarding her neuropathy, Reliance found that she was entitled to LTD benefits, and paid her $55,250 in accrued, past-due benefits.
Hardt then moved for attorney’s fees, which the court considered under the three-step analysis established by Martin v. Blue Cross & Blue Shield of Virginia, Inc., 115 F.3d 1201 (4th Cir. 1997). Under Martin, the district court first determines whether the party seeking fees is a "prevailing party." If so, the court determines whether a fee award is appropriate by looking at another five factors. Then, if those factors weigh in favor of the party seeking fees, the court must review the actual amount of the fees and costs requested, and "limit them to a reasonable amount."
Using Martin‘s framework, the district court awarded attorney’s fees and costs of $39,149 to Hardt. Although Hardt did not secure a reversal of Reliance’s denial of her claim, the district court "’quite clearly expressed the consequences to [Reliance] were it to fail to complete its reconsideration in an expeditious manner."
But on appeal by Reliance, the Fourth Circuit reversed the district court’s decision. The court found that Hardt had failed to establish that she was a "prevailing party," because, relying on the Supreme Court’s decision in Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001), (which originated in the Northern District of West Virginia), a party prevailed only it obtained an "enforceable judgmen[t] on the merits"or a "court-ordered consent decre[e]." Because the district court did not order Reliance to award benefits to Hardt (but only strongly suggested that it do so), its order was not an "enforceable judgment on the merits," and did not entitle Hardt to attorney’s fees.
Hardt petitioned for certiorari on two issues: did the Fourth Circuit "correctly conclude that § 1132(g)(1) permits courts to award attorney’s fees only to a ‘prevailing party?’"; and did the Fourth Circuit "correctly identify the circumstances under which a fee claimant is entitled to attorney’s fees under § 1132(g)(1)?" The Court noted in a footnote that the First, Seventh, and Tenth Circuits agree with the Fourth Circuit’s approach, while the Second, Fifth, and Eleventh disagree.
In a unanimous opinion by Justice Thomas, with which Justice Stevens concurred in part and concurred in the judgment, the Court dispensed with the first issue quickly. It found that the words "prevailing party" do not appear in § 1132(g)(1), nor is there any other indication from the text that fees are available only to the prevailing party. The Court contrasted § 1132(g)(1) with § 1132(g)(2), which governs the availability of attorney’s fees in actions under § 1145 to recover delinquent contributions to a multiemployer plan. In those cases, a plaintiff must obtain "a judgment in favor of the plan" in order to seek fees. That difference led the Court to conclude that "Congress knows how to impose express limits on the availability of attorney’s fees in ERISA cases." Thus, the Fourth Circuit’s "decision adding that term of art to a fee-shifting statute from which it is conspicuously absent more closely resembles ‘invent[ing a statute rather than interpret[ing] one.’"
Regarding the second issue, the Court noted that the "bedrock principle" known as the "American Rule" provides that each party, win or lose, pays its own attorney’s fees, unless a statute or contract provides otherwise. Deviations from the American Rule have typically involved a "prevailing party" requirement.
But because § 1132(g)(1) did not limit attorney’s fees to the "prevailing party," the Court looked to Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983), which addressed the availability of attorney’s fees in actions under the Clean Air Act. The Court explained that as in that case, "Congress failed to indicate clearly in § 1132(g)(1) that it ‘meant to abandon historic fee-shifting principles and intuitive notions of fairness[,]’" and concluded that likewise,"a fees claimant must show ‘some degree of success on the merits’ before a court may award attorney’s fees under § 1132(g)(1)[.]"
A claimant does not satisfy that requirement by achieving "trivial success on the merits" or a "purely procedural victor[y]," but does satisfy it if the court can fairly call the outcome of the litigation some success on the merits without conducting a "lengthy inquir[y] into the question whether a particular party’s success was ‘substantial’ or occurred on a ‘central issue.’"
Despite that clarification, you can rest assured that plenty of litigants in ERISA cases will be arguing over exactly what constitutes "real" as opposed to "trivial" success on the merits, and when is a victory "purely" procedural versus a combination of procedure and substance.
And a secondary issue, which the Court identified but did not resolve, is "whether a remand order, without more, constitutes ‘some success on the merits’ sufficient to make a party eligible for attorney’s fees under § 1132(g)(1)."
The Court found that Hardt had achieved "some success on the merits," and reversed the Fourth Circuit’s decision. But the opinion strongly suggests that a remand, without more, may be a procedural victory, but will not entitle the party seeking remand to an award of attorney’s fees.


text:
I previously blogged (link here) about the trademark infringement lawsuit brought by automotive parts retailer AutoZone against Illinois businessman, Michael Strick, doing business under the service marks Oil Zone and Wash Zone. The Seventh Circuit reversed a district court’s decision finding no likelihood of confusion as a matter of law between the AUTOZONE mark and Strick’s use of OILZONE and WASHZONE. See AutoZone, Inc. et al v. Strick et al., Appeal No. 07-2136 (7th Cir. September 11, 2008). The decision sent the case back the lower court for trial.
After a bench trial was held on November 2 and 3, 2009, U.S. District Court Judge John Darrah on March 8, 2010, issued findings of fact and conclusions of law which rule in favor of Strick and against AutoZone. The court concluded that Strick's use of the OIL ZONE and WASH ZONE names and marks was not likely to cause consumer confusion with AutoZone’s mark, and, in the alternative, AutoZone’s lawsuit was barred the doctrine of laches. See AutoZone, Inc. et al v. Strick, 2010 U.S. Dist. LEXIS 21928, Case No. 03-cv-8152 (N.D. Ill. March 8, 2010).
Because there was no issue regarding the protectibiliyt of AutoZone’s marks, the decision came down to likelihood of confusion. The court went through an analysis of the seven likelihood of confusion factors set forth in CAE, Inc. v. Clean Air Engineering, Inc., 267 F.3d 660, 677-78 (7th Cir. 2001).
Furthermore, confusion between the marks is even less likely when the marks are considered in the physical retail context in which they are displayed by the parties and perceived by the consumer. Specifically, the exterior appearance of the Oil Zone facilities significantly diminishes the probability of consumer confusion by associating either location with AutoZone. The Wheaton Oil Zone location is a simple concrete building with a green Oil Zone sign. The Naperville Oil Zone/Wash Zone location is a white building with a blue roof. Neither has an appearance even slightly resembling a typical AutoZone store, which has the standardized, uniform look consistent with a retail store operated as part of a nationwide chain. In contrast, the Oil Zone locations present the appearance of two small, independent businesses, not associated with any national commercial entity.
Regarding similarity of the products and/or services offered, while the businesses may generally relate to care and maintenance of automobiles, the court found that Oil Zone and Wash Zone primarily provide automotive services while AutoZone primarily sells automotive products. The court rejected as unsupported by any evidence AutoZone’s claims that consumers would believe these are service-only centers of AutoZone.
Regarding the “area and manner of concurrent use” factor, the court found differences in the customer bases of the two businesses (65% of Strick's customers are women while 20% of AutoZone customers are women; AutoZone has a very high percentage of DIY customers while Strick’s facilities provide basic automobile maintenance services to automobile owners). The court also noted that AutoZone customers generally seek to purchase products for use by the customer in performing maintenance and repair on an automobile whereas Oil Zone/Wash Zone customers are seeking to purchase both the part and the installation and repair or maintenance service. The court also found that the physical appearance of the interior of Strick's facilities make it unlikely that a consumer would believe that the business sold auto parts. Similarly, the typical AutoZone store is a retail facility with large glass windows but no car bays with an interior that contains aisles of shelves stocked with automobile parts and accessories. The court also noted that there is no significant concurrent use of the marks in advertising because AutoZone’s ads are mostly nationwide through television, radio, newspapers, and sponsorship of professional teams, while Strick’s primary means of advertising is through direct mail -- a method not used extensively by AutoZone.This factor favored no likelihood of confusion.
Weighing all of the factors above, the court found that AutoZone had failed to establish by a preponderance of the evidence that Strick's use of the OIL ZONE and WASH ZONE marks were likely to cause confusion among consumers (finding that only the strength of the mark weighed in favor of AutoZone, which was significantly outweighed by the dissimilarity of the marks and the products and services offered by the parties).
The court also addressed Strick’s alternative argument that the doctrine of laches bars AutoZone's claims. AutoZone became aware of Strick's use of OIL ZONE and WASH ZONE in December 1998, but did nto contact Strick until a cease and desist letter was sent in February 2003. This four year delay was outside the three-year statute of limitations found in the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/10a(e), and therefore, there was a presumption of unreasonable delay applied.
AutoZone attempted to argue that its delay was not unreasonable and was excusable due to AutoZone's other ongoing enforcement actions between 1998 and 2003 (even having in-house counsel testify regarding AutoZone’s procedures for monitoring and prioritizing trademark enforcement actions). But the court shot down AutoZone quite directly stating “It is clear that the actual reason AutoZone did not pursue this case in a reasonably timely manner was not that it was too busy with other enforcement actions but, rather, that for whatever reason, it gave the case file no attention for nearly four years. This does not excuse AutoZone's delay. Therefore, AutoZone has not overcome the presumption that its four-year delay was unreasonable.” (footnote omitted).
After determining unreasonable delay, the court turned to the question of whether Strick has shown prejudice due to AutoZone's inaction. While AutoZone tried to argue that Strick had presented no concrete evidence that he has built up good will or customer loyalty over the last four years, the court rejected the need for such evidence in showing prejudice: “It is undisputed that Strick spent four years and a substantial sum promoting the Oil Zone name. Forcing him to change that name now would obviously cause a loss in terms of both time and money. Thus, Strick has shown that he has been prejudiced by AutoZone's delay.” While AutoZone argued that that Strick had not shown that he relied on AutoZone's delay and that AutoZone's action induced Strick to adversely change his position, the court rejected the argument that such a showing was required (citing recent Seven Circuit case law) and held that Strick did not need to make any further showing with respect to prejudice.
Accordingly, the court held that AutoZone unreasonably delayed in bringing this suit, and Strick would be prejudiced by allowing AutoZone to now assert its rights and applied the doctrine of laches to bar AutoZone’s lawsuit.
On March 4, 2010, Who Dat? Inc. (“WDI”) filed a lawsuit against the NFL, the New Orleans Saints, the Louisiana Secretary of State and the State of Louisiana. See Who Dat?, Inc. v. NFL Properties, LLC et al, Case No. 10-cv-00154 (M. D. La. March 4, 2010). A copy of the complaint can be downloaded here (or here). Other press coverage here, here and here.
Who Dat?, Inc. developed and nurtured “WHO DAT” for over twenty-five years and was uniquely positioned to reap substantial financial rewards in connection with the 2009-2010 National Football League season. On the eve of that success, NFLP and the Saints filed public documents falsely claiming ownership and first use of the phrase. As anyone would have anticipated, the public voiced outrage and State of Louisiana officials publically challenged the claims made by the NFLP and Saints. Since those entities were not the first users of the phrase and had no standing to make the claims made, they publically conceded that they did not own the phrase. With that concession in hand, state officials declared victory and further declared that the phrase belongs to the people as it is in the public domain. As a natural consequence of these actions, Who Dat?, Inc. was not able to obtain the financial fruits of its labor.
Interestingly, while several Louisiana state trademark registrations are noted throughout the complaint as evidence of WDI’s trademark rights, WDI had very few federal registrations to evidence its trademark rights. One was for soft drinks, but it has since been canceled (the 5 year statement of use was not filed). Another was for the mark WHO DAT BLUE BAND, but as noted in the complaint, this was registered by a third party in 2004, and only assigned to WDI in December 2009 in order to resolve a cancellation proceeding filed by WDI.
WDI had several other intent-to-use trademark applications pending, but each went abandoned for lack of any Statement of Use, including two applications for clothing (here and here) and two applications for potato chips (here and here) – all filed on the basis of intent-to-use and all went abandoned after no Statement of Use was filed. One additional use-in-commerce application for bumper stickers went abandoned after failing to respond to an office action.
More recently, WDI filed another use-in-commerce application for WHO DAT on January 7, 2010, covering musical sound recordings and various clothing items (claiming date of first use going back to October 1983). Unfortunately, WDI’s application to register the mark for its clothing goods will inevitably be suspended pending the outcome of two earlier filed applications for WHO DAT (currently allowed and awaiting a Statement of Use from the applicant and WHO DAT' JE CROIS.
One has to wonder why WDI did not follow through with its federal trademark registrations for clothing if, as stated in the complaint, it was licensing the mark to third parties for use in connection with shirts and other products. It certainly recognized the importance of seeking federal registrations – as evidenced by its prior applications. And while it’s not clear how WDI may have sold its goods throughout the years, it currently sells its goods through the website – whodatstuff.com – a domain name registered on August 13, 2009.
The situation serves as lesson that a trademark is only as good as its ability to serve as a unique source identifier for a particular source of goods or services. Just because you come up with a unique phrase does not mean that you have any exclusive rights to the term to the extent you are not actually using it in a manner that would be recognized as a source identifier in connection with particular goods and services. As for WDI, it's one thing to talk about having created a unique term or phrase – its quite another to have the evidence to show that it has always served as a unique identifier for WDI's goods and services. We shall see.
Last week, the Ninth Circuit Court of Appeal clarified last week that creditors seeking to attach writ of executions against domain names in order to satisfy outstanding judgments can do so by levying the domain names through a court appointed receiver in a jurisdiction where either the domain name registrar or registry is located. See Office Depot, Inc. v. Zuccarini, No. 07-16788 (9th Cir. Feb. 26, 2010). Seattle Trademark Lawyer and Technology & Marketing Law Blog both have detailed posts on the court’s decision.
Basically, the Ninth Circuit upheld its prior decision in Kremen v. Cohen, 337 F.3d 1024, 1030 (9th Cir. 2003) that domain names are intangible property which can subject to a writ of execution. One important nuance highlighed by the court's decision is that while domain names cannot be subject to a turnover order under California law because they cannot be taken into custody, a domain name can be transferred to an appointed receiver who can then sell the domain name in order to satisfy a judgment.
Moreover, based on the sections of the Anticybersquatting Consumer Protection Act that allow for in rem actions to be filed against domain names in either the jurisdiction of the registrar or the registry, the court further concluded that under California law domain names are located where the registry is located for the purpose of asserting quasi in rem jurisdiction (so-called “attachment jurisdiction” because the jurisdiction establishes ownership of property in a dispute unrelated to the property – in thiscase, the original lawsuit brought by Office Depot for cybersquatting against Zuccarini involved a single domain name and resulted in a judgment that Office Depot then sought to satisfy by going after other domain names owned by Zuccarini).

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V.P. Lebedev, Y. S. Katznelson, A.B. Savchenko, A.V. Malygin, M.L.G. Joy. Noninvasive transcranial electrotherapy stimulation of the antinociceptive system of the brain: experimental and clinical research. // Abstract of the 33rd International Congress of Physiological Sciences. St. Petersburg, July 1997. P. 084. 34.
V.P. Lebedev, R.I. Voitenko, D.V. Legeza, A.N. Kondratiev, V.A. Sorokoumov. Transcranial electroanalgesia in neuroanesthesiology: peripheral nerve repair and postoperative pain management. // Abstract of the 2nd Congress of the European Federation of IASP Chapters, Barcelona. September 1997. P. 246.
V.P. Lebedev. Transcranial electrotherapy stimulation as an effective non-pharmaceutical approach to pain management. // Abstracts of the 4th International Congress of International Neuromodulation Society ‘Neuromodulation for movement disorders and pain’. Lucerne, Switzerland. September 15-20, 1998.
V.P. Lebedev, V.A. Rybak. Effective treatment for drug-resistant fibromyalgia. // Abstracts of the 4th World Congress on Myofascial Pain and Fibromyalgia. Italy, Milan. August 24-27, 1998.
V. Lebedev, L. Airapetov, A. Savchenko, Y. Katznelson. Transcranial electrotherapy stimulation (TES) for pain relief: neurochemical mechanisms. // Abstracts of the 9th World Congress on Pain (IASP). Vienna 1999. P. 12.
V.P. Lebedev. Noninvasive transcranial electrotherapy stimulation (TES) of the antinociceptive system of the brain as a possible substitute to acupuncture. // Abstracts of the 5th IBRO World Congress of Neuroscience. Jerusalem 1999. P. 193.
L.D. Enin, L.I. Kolosova, O.V. Moiseeva, V.P. Ryabchikova, V.P. Lebedev. Transcranial electrotherapy stimulation (TES) effects on the functions of skin mechanoreceptors both intact and restoring after nerve damage. // Abstracts of the 5th IBRO World Congress of Neuroscience. Jerusalem 1999. P. 107.
V. Lebedev, M. Melikhova, S. Kolbasov, G. Stroikova, O. Zamuruev, G. Kozlowski. Increase in the endorphin release stimulates repair processes of hepatocytes in vivo after poisoning. // Abstracts of the Meeting of the Society for Neuroscience, Miami Beach 1999. Vol. 25, part 1, p. 193.
V.P. Lebedev, Y. S. Katznelson, A. B. Savchenko, L. N. Airapetov, A. V. Malygin, M. L. G. Joy, G. P. Kozlowski. Noninvasive transcranial electrotherapy stimulation of the antinociceptive system of the brain stem: biophysical, physiological, neurochemical and pharmacological bases of clinical application. // Chinese Journal of Pain Medicine. Beijing 2000. Vol. 6, p. 13-14.
V. P. Lebedev, T. D. Kirianova. Noninvasive transcranial electrotherapy stimulation (TES) of the brain endorphin systems relieves orofacial pain. // 3rd International Congress on Orofacial pain and Temporomandibular Disorders. Seoul, Korea, 2000. P.85.
V. P. Lebedev. Analgesia and other effects of noninvasive transcranial electrotherapy stimulation of the brain endorphin systems in palliative care of cancer patients. // 3rd Congress of the European Federation of IASP Chapters. Nice, France, 2000.
V. P. Lebedev, A. V. Kovalevsky. Noninvasive transcranial electrotherapy stimulation of the brain endorphin systems improves psychophysiological state of patients: treatment of fatigue and other symptoms. // Society for Neuroscience, 2000.
E. M. Krupitsky, A. M. Burakov, T. N. Romanova, V.V. Vostrikov, V.P. Lebedev, N. I. Grinenko, T.Y. Slavina, A.Y. Grinenko. Transcranial electrotherapy stimulation is an effective method of treating protracted withdrawal in recently detoxified heroin-dependent patients. // Proceedings of the 5th International Congress of the European BioElectromagnetics Association (EBEA 2001). Helsinki 2001. P. 281-282.
V.P. Lebedev. Noninvasive transcranial electrotherapy stimulation (TES) of the brain endorphin systems in treatment of depression and improvement of the quality of life in patients suffering from pain. // Abstracts of the 10th World Congress on Pain. San Diego 2002. P.543.

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MARK BOSLOUGH, ET AL., DEFENDANTS.
THIS MATTER is before the Court on Plaintiff's Motion to Alter or Amend Judgment ("Plaintiff's Motion") filed on June 6, 2005, requesting that the Court either alter or amend its Order of May 20, 2005, in which the Court granted the United States' Motion for Summary Judgment. A response to this motion was filed June 27, 2005, and a reply was filed July 12, 2005. For the reasons stated below, Plaintiff's Motion to Alter or Amend Judgment is denied.
On March 8, 2004, Defendant United States filed a Notice of Removal, removing this case from the state district court in Boulder County. On May 20, 2005, I entered an Order granting the United States' Motion for Summary Judgment. In that Order, I remanded the state law claims to state court having found that this Court lacked subject matter jurisdiction over the federal claims asserted against the United States. Judgment in favor of the United States on the Motion for Summary Judgment was entered by the Clerk of Court on May 26, 2005, and the case was remanded to state court.
Plaintiff's Motion to Alter or Amend Judgment is brought pursuant to FED. R. CIV. P. 59(e), and requests the Court alter the May 20, 2005 Order so as to deny the Motion for Summary Judgment, or in the alternative, amend the Order to include provisions allowing for interlocutory appeal of the Order pursuant to 28 U.S.C. § 1292(b). Plaintiff avers that (1) the Court incorrectly concluded that Plaintiff did not plead he was entitled to an easement by implication, (2) Plaintiff's claims are not barred by the 12-year statute of limitations of the Quiet Title Act, (3) the Court incorrectly determined that Plaintiff does not have standing to assert a claim under Revised Statute § 2477 or, in the alternative, (4) that the Order should be amended to allow for interlocutory appeal under 28 U.S.C. § 1292(b).
The purpose of a motion to alter or amend is to "correct manifest errors of law or to present newly discovered evidence." Committee for First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir. 1992). I do not believe that Plaintiff has demonstrated that the Court made a manifest error with relation to the law, nor has Plaintiff presented any newly discovered evidence. In any event, since this case has been remanded to the state court for lack of subject matter jurisdiction, this Court "'is wholly deprived of jurisdiction to vacate or correct" its Order. Maggio Enterprises, Inc., v. Hartford Casualty Insurance Company, 132 F. Supp. 2d 930, 930-31 (D. Colo. 2001) (quoting Seedman v. United States Dist. Court for the Central Dist. of California, 837 F.2d 413, 414 (9th Cir. 1988)). "This is true 'even if [this Court's] jurisdictional determination appears erroneous, so long as that determination was made in good faith.'" Id. at 930-31 (quoting Dalrymple v. Grand River Dam Authority, 145 F.3d 1180, 1184 (10th Cir. 1998)). Accordingly, the request that this Court's Order be altered in connection with the ruling on the summary judgment motion is denied.
To the extent the motion requests that I amend the order to allow for an interlocutory appeal, I must deny this request also. "An order remanding a case to the State Court from which it was removed is not reviewable on appeal or otherwise." 28 U.S.C. § 1447(d). The Tenth Circuit holds that remand orders which are immune to appellate review under § 1447(d) "are those based on lack of subject matter jurisdiction and defects in the removal procedure." American Soda, LLP v. U.S. Filter Wastewater Group, 428 F.3d 921, 924 (10th Cir. 2005). In this case, the remand order at issue falls within those orders that are immune from review on appeal, since it was based on the fact that this Court lacked subject matter jurisdiction over the federal claims asserted against the United States.
Based upon the foregoing, it is ORDERED that Plaintiff's Motion to Alter or Amend Judgment filed June 6, 2005, is DENIED.


Bulgarian courts are generally enforcement friendly. However, one should note that they tend to be very formalistic on procedural points such as notification of parties and ensuring equal opportunity to participate in the arbitration proceedings and present evidence.
Recently, a legislation amendment, which introduced certain changes to the enforcement regime of domestic arbitral awards has been passed. However, since the Bulgarian International Commercial Arbitration Act only refers to international treaties, to which the Republic of Bulgaria is a party, the enforcement of foreign arbitral awards in the country has not been affected.
Bulgaria’s arbitration law is based on the 1985 UNCITRAL Model Law on International Commercial Arbitration (hereinafter: “1985 Model Law”), with only minor differences as regards the definition of “international arbitration” and the appeals against a tribunal’s preliminary decision on jurisdiction. Bulgaria has not implemented the revised version of 2006 of the UNCITRAL Model Law on International Commercial Arbitration yet.
What is the applicable law for recognition and enforcement of an arbitral award in your jurisdiction?
Recognition and enforcement of both international and domestic awards is regulated by the Bulgarian International Commercial Arbitration Act (hereinafter: “ICAA”; an unofficial translation of the Bulgarian Chamber of Commerce and Industry is available here: http://www.bcci.bg/bcci-lawofarbitr-en.html).
The relevant provisions of the ICAA are contained in section 7, which entails Art. 47 to 51 ICAA. The New York Convention applies to the recognition and enforcement of foreign arbitral awards. The Bulgarian Civil Procedure Code defines arbitrability and regulates the proceedings before courts. Foreign awards that do not fall within the scope of international conventions are recognized and enforced in accordance with Art. 118 to 122 of the Bulgarian Code of Private International Law.
Is your jurisdiction party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention and was any reservation made?
Which is the competent court for an application for recognition and enforcement of arbitral awards?
For foreign awards, the ICAA designates the Sofia City Court as the single state court having jurisdiction to issue writs of execution for the purpose of commencement of enforcement of foreign arbitral awards. Foreign arbitral awards are not automatically recognized (as for example in Finland), however the inspection of the arbitral award is merely of formal nature and only examines whether the parties are correct, whether the award has been signed and similar formalities. The recognition process generally takes two to three weeks.
For domestic awards on the other hand, the amended ICAA introduces a new jurisdictional criterion for the enforcement of domestic arbitral awards: the competent state district court is the court at the domicile or at the seat of the award-debtor.
How does one initiate court proceedings for the enforcement of a foreign award in your home jurisdiction?
After verifying whether the award should be recognized in an expedited procedure, the creditor must file an enforcement request before the Sofia City Court requiring the issuance of a writ of execution enabling the claimant to enforce the award pursuant to Art. 51 III ICAA.
The proceedings regarding foreign arbitral awards are adversarial with participation of both parties. The proceedings regarding domestic awards are ex parte.
In case of a foreign arbitral award, the New York Convention is applicable and thus the application must be accompanied by duly authenticated originals or duly certified copies of the arbitral award and the arbitration agreement. Under the Code of Private International Law, one is also required to present a certificate from the tribunal which issued the award that it has entered into force. It is also advisable to submit proof that the award has been notified to the award-debtor.
An application for enforcement of a domestic award must be accompanied by a duly certified copy of the award and evidence that it was served on the debtor. The court only checks whether the award has any obvious prima facie irregularities, such as if it is not signed, and then directly issues an enforcement order.
Yes, a certified translation is necessary. Art. IV (2) of the New York Convention applies directly.
Do you need to be represented by a lawyer from the particular jurisdiction?
Under the Bulgarian Legal Profession Act, you either need to be admitted to the Bulgarian Bar or have a temporary permit according to Art. 19 b) I of the same Act (which a European attorney could easily obtain) in order to be able to validly submit applications to court.
Yes. First, in the case of foreign arbitral awards, one must additionally file the duly authenticated original or duly certified copies of the arbitration agreement as well. When a domestic award is concerned, the authenticated original or duly certified copy of the award would suffice.
Secondly, the proceedings for the enforcement of foreign arbitral awards are adversarial, while the proceedings for the enforcement of domestic awards are ex parte.
What are the costs of recognition and enforcement proceedings and how are they allocated? Are there any statutory limitations to legal fees?
The court fees for recognition of a foreign award amount to 0.4 % of the sum awarded. Half of these charges are collected for an appeal. The court fees for issuance of an enforcement order on a domestic award are 0.2 % of the sum awarded. The minimum attorney’s fees amount to 2 % of the awarded sum.
The general rule for cost allocation according to Art. 78 of the Bulgarian Code of Civil Procedure is that the claimant should initially cover all costs and taxes related to the initiation of enforcement proceedings. After the bailiff has enforced the award by taking or selling assets belonging to the debtor, he would also put aside enough assets from the enforcement proceedings in order to cover all enforcement related costs, so ultimately the respondent would pay.
Pursuant to the Arbitration Rules of the Bulgarian Chamber of Commerce and Industry (hereinafter: “BCCI” and “BCCI Arbitration Rules”), unless otherwise agreed by the parties, the costs are allocated according to the rule ‘the costs follow the event’. The costs must be reasonable and supported by sufficient proof.
How long do the recognition and enforcement proceedings usually take?
There aren’t any statistics available on the average duration but the procedure for the recognition of a foreign award would generally last no longer than two to three weeks. If the decision is not appealed by the debtor, the writ of execution should be issued within another three to four weeks.
What are the grounds on the basis of which a foreign award may be refused enforcement?
The grounds for refusal of enforcement of foreign awards are those listed in Article V Section 1 of the New York Convention and also the additional grounds of Article V Section 2.
How does your home jurisdiction interpret and construe the public policy violation defense for foreign arbitral awards?
The most recent amendment of ICAA has removed public policy as a ground for setting aside awards. However, foreign awards can still be resisted enforcement for reasons of violation of public policy on the basis of the New York Convention.
Partial or interim awards generally need to fulfill the same requirements as final awards and in case they comply with the requirements and have a subject which is enforceable, they will be recognized and enforced.
What are the grounds on the basis of which a domestic award may be refused enforcement?
Except for the public policy ground and the ground found under Art. V (1) (e) on awards that have not yet become binding, the grounds on the basis of which Bulgarian courts may set aside domestic awards are the same as those contained in Art. V New York Convention.
Courts do not differentiate between foreign and domestic awards in this regard. See Q#14 for more details on this.
No, after a decision recognizing the award has entered into force, the Sofia City Court, at the request of the claimant, will issue a writ of execution.
Yes, the decision recognizing an arbitral award is subject to appeal before the Sofia Court of Appeal, and subsequently to appeal before the Supreme Court of Cassation. The grounds for non-recognition are the grounds for non-recognition contained in Art. V of the New York Convention.
Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration?
No. If the award has been set aside by a competent authority at the seat of the arbitration and this can be proven by the respective documents, the claimant would not be able to enforce it according to Art. V 1. e) of the New York Convention in conjunction with Art. 51 II ICAA.
In case the award is set aside after the decision for enforcement of the award has been issued, what remedies, if any, are available against this decision?
One could appeal the decision as described in Section Q#18. In case the award is subsequently set aside, the decision for enforcement of the award would be overturned.
Are interim measures to cease assets available in your jurisdiction? And if yes, what kind of measures are they?
Before and during the arbitration proceedings, either party may request state courts to impose interim measures in regards to the claim and the evidence. A request for interim measures is not considered inconsistent with the arbitration agreement or waiver of it. The courts may grant a ban to transfer real estate, an attachment of movables and receivables, or any other appropriate measure.
Unless otherwise agreed by the parties, the arbitral tribunal may also, at the request of a party, order the other party to take appropriate measures to preserve the applicant’s rights. The provisions give arbitrators wide discretion to grant measures directed at preservation of evidence, or preservation of status quo, or facilitation of the enforcement of the award.
How do you enforce an award that has been declared enforceable by the court? Is there a specific procedure?
The party seeking enforcement receives a writ of execution. The writ of execution is the document empowering the bailiff to enforce the award. There is also a further formal requirement: one must draft a motion for the start of enforcement proceedings and hand it to the bailiff.
Are there any costs involved and what are the costs?
Yes, the private bailiff gets paid by the party seeking enforcement. There is a national tariff agreement determining the costs. A fee is due for the commencement of the enforcement proceedings (amounting to ca. 10 €) and also for the inquiry into the assets of the respondent (amounting to ca. 25 €).
For enforcement measures aimed at movable items the fee due amounts to 2 % of their value (but not less than 25 €). For enforcement targeting real estate assets the fee is adds up to 1 % of the value of the property (but not less than 25 €).
If the assets have been seized and are then resold, the buyer would generally have to cover the enforcement fees.
Are there any statistics available regarding the number of enforcement proceedings in your home jurisdiction?
Are there any statistics available regarding the success ratio?
No, but it is fair to say that Bulgarian courts have a proenforcement attitude and foreign awards are generally recognized and enforced in Bulgaria.
Is information available whether the court officers / bailiffs effectively pursue the enforcement against the debtor?
Private bailiffs are generally considered more effective as they only get their full fee if the award is actually enforced so that they would normally be willing to exert themselves to enforce an award. Court officers are not considered as effective as private bailiffs (as they lack such an incentive) and thus, a claimant would generally prefer to use the services of a private bailiff.
Are there any other particularities which should be considered?
Yes, Bulgarian courts are generally inclined to frequently invoke public policy as a ground for refusing enforcement because of the conduct of the arbitration proceedings and in cases in which the conduct of the proceedings shows no consideration for the principles of equality of the parties. Therefore, it is advisable to ensure that the arbitration proceedings are conducted in full compliance with the applicable rules and without any formal defects such as not informing a party in a timely manner about the decision of the tribunal.


This Q&A discusses the possibility of requiring Medicaid coverage of gastric bypass surgery.
Question: T.R.?s physician submitted a request for Medicaid coverage of gastric bypass surgery. T.R. is 43 years old, weighs approximately 415 pounds and has a body mass index of 44. T.R.?s doctor says he is medically eligible for gastric bypass surgery because he has a body mass index over 40 and is more than 100 pounds overweight. He also suffers from diabetes, heart problems, and depression. His doctor says that, without this surgery, T.R. is in danger of suffering a fatal heart attack. The Medicaid agency has denied the request for coverage, and an administrative hearing has been scheduled. Should Medicaid cover the surgery?
Brief Answer: Probably. In making your case to the administrative law judge (ALJ), stress your client?s medical needs and make clear that the surgery is not for aesthetic or cosmetic reasons. Submit a memorandum to the ALJ that explains the legal support for Medicaid coverage and points out that other insurers cover obesity treatments. As you work through the issue and arguments, remember that the process you are using here can be applied broadly to a number of Medicaid service questions involving, for example, weight loss treatments, gynecomastia, mammaplasty, keloid removal, and smoking cessation.
Discussion: The Medicaid Act requires participating states to cover some services, including inpatient hospital and physician services, see 42 U.S.C. §§ 1396a(a)(10), 1396d(a), and allows states to cover other services, such as prescription drugs,2 see id. Beyond the requirements and options for the benefits package, coverage policies may vary from state to state as long as they are consistent with the federal regulatory guidelines governing services for individual over age 21.3 These guidelines require states to establish reasonable standards for determining the extent of medical assistance to be provided. See 42 U.S.C. § 1396a(a)(17). Each service must be covered ?sufficient in amount, duration and scope to reasonably achieve its purpose,? 42 C.F.R. § 440.230(b), and states may not arbitrarily deny or reduce the amount, duration and scope of a required service solely because of the diagnosis, type of illness or condition, id. at § 440.230(c). States can place limits on services that are based on such criteria as ?medical necessity or on utilization control procedures.? Id. at § 440.230(d). Federal Medicaid law does not mention coverage of gastric bypass surgery; however, the components of the surgery?inpatient hospital and physician services?are required Medicaid services. See 42 U.S.C. §§ 1396a(a)(10), 1396d(a).
State courts have applied these guidelines to decide whether Medicaid coverage of gastric bypass surgery is required. State law claims may also be available, so you should check your state Medicaid statute and regulations for helpful coverage rules. Usually, the cases have resulted from an appeal of a state Medicaid agency decision to deny coverage of the surgery because it is considered an aesthetic or cosmetic procedure. For example, in McCoy v. Idaho Dep?t of Health and Welfare, 127 Idaho 792, 907 P.2d 110 (1995), the court reviewed a request for gastric bypass surgery. It noted that surgery was medically necessary if ?there is a stabilization or improvement in the functioning of a body part, or if the procedure removes pain.? 907 P.2d at 113. The court then held that exclusion of all treatments for obesity was overly broad and violated the Medicaid Act. Id. at 114. The case was remanded to the agency for a new decision consistent with the court?s ruling.
Some administrative tribunals have ordered state Medicaid programs to cover gastric bypass surgery as medically necessary for an individual claimant. See, e.g., Todhunter v. Washington Dep?t of Soc. and Health Servs., No. 7696-5-1 (Wash. Ct. App. 1980), reprinted in Medicare & Medicaid Guide (CCH) ¶ 30,583; In re Cleo M (New Hampshire Division of Welfare Fair Hearings Decision July 1, 1980). These cases order coverage of the surgery as medically necessary for the patient?looking at a person?s body mass index, weight, and other health problems. Because of the high risk of complications, gastric bypass is generally considered a last resort for obese people. Thus, these cases have noted that coverage also depends on whether the person has tried and failed at other weight loss strategies. These cases may be particularly persuasive to the ALJ, and copies can be obtained from the National Health Law Program.
Tribunals have placed great weight on whether the person?s physician has deemed the surgery to be medically necessary. E.g., McCoy, 907 P.2d 110, 127 Idaho 792 (1995); In re George Bailey, Case No. 339-010868 (Ohio 1988); see generally Morgan v. Idaho Dep?t of Health and Welfare, 813 P.2d 345, 120 Idaho 6 (1991) (ordering Medicaid agency to pay for prescribed weight loss program). Courts quote from the legislative history of the Medicaid statute in according great deference: ?The Committee?s bill provides that the physician is to be the key figure in determining utilization of health services.? S.Rep. No. 404, 89 Cong., 1st Sess., reprinted in 1965 U.S.C.C.A.N. 1943, 1986.