35 U.S.C. 141 Appeal to Court of Appeals for the Federal Circuit.
(a) EXAMINATIONS.—An applicant who is dissatisfied with the final decision in an appeal to the Patent Trial and Appeal Board under section 134(a) may appeal the Board’s decision to the United States Court of Appeals for the Federal Circuit. By filing such an appeal, the applicant waives his or her right to proceed under section 145.
(b) REEXAMINATIONS.—A patent owner who is dissatisfied with the final decision in an appeal of a reexamination to the Patent Trial and Appeal Board under section 134(a) may appeal the Board’s decision only to the United States Court of Appeals for the Federal Circuit.
(c) POST-GRANT AND INTER PARTES REVIEWS.—A party to an inter partes review or a post-grant review who is dissatisfied with the final written decision of the Patent Trial and Appeal Board under section 318(a) or 328(a) (as the case may be) may appeal the Board’s decision only to the United States Court of Appeals for the Federal Circuit.
(d) DERIVATION PROCEEDINGS.—A party to a derivation proceeding who is dissatisfied with the final decision of the Patent Trial and Appeal Board in the proceeding may appeal the decision to the United States Court of Appeals for the Federal Circuit, but such appeal shall be dismissed if any adverse party to such derivation proceeding, within 20 days after the appellant has filed notice of appeal in accordance with section 142, files notice with the Director that the party elects to have all further proceedings conducted as provided in section 146. If the appellant does not, within 30 days after the filing of such notice by the adverse party, file a civil action under section 146, the Board’s decision shall govern the further proceedings in the case.
An applicant dissatisfied with the decision of the Patent Trial and Appeal Board in an appeal under section 134(a) may, unless appeal has been taken to the United States Court of Appeals for the Federal Circuit, have remedy by civil action against the Director in the United States District Court for the Eastern District of Virginia if commenced within such time after such decision, not less than sixty days, as the Director appoints. The court may adjudge that such applicant is entitled to receive a patent for his invention, as specified in any of his claims involved in the decision of the Patent Trial and Appeal Board, as the facts in the case may appear, and such adjudication shall authorize the Director to issue such patent on compliance with the requirements of law. All the expenses of the proceedings shall be paid by the applicant.
The provisions herein govern judicial review for Patent Trial and Appeal Board decisions under chapter 13 of title 35, United States Code. Judicial review of decisions arising out of inter partes reexamination proceedings that are requested under 35 U.S.C. 311, and where available, judicial review of decisions arising out of interferences declared pursuant to 35 U.S.C. 135 continue to be governed by the pertinent regulations in effect on July 1, 2012.
37 CFR 90.2 Notice; service.
(a) For an appeal under 35 U.S.C. 141.
(1) In all appeals, the notice of appeal required by 35 U.S.C. 142 must be filed with the Director of the United States Patent and Trademark Office as provided in § 104.2 of this title. A copy of the notice of appeal must also be filed with the Patent Trial and Appeal Board in the appropriate manner provided in § 41.10(a), 41.10(b), or 42.6(b).
(ii) Paying the requisite fee for the appeal.
(i) In appeals arising out of an ex parte reexamination proceeding ordered pursuant to § 1.525, notice of the appeal must be served as provided in § 1.550(f) of this title.
(ii) In appeals arising out of an inter partes review, a post-grant review, a covered business method patent review, or a derivation proceeding, notice of the appeal must provide sufficient information to allow the Director to determine whether to exercise the right to intervene in the appeal pursuant to 35 U.S.C. 143, and it must be served as provided in § 42.6(e) of this title.
(b) For a notice of election under 35 U.S.C. 141(d) to proceed under 35 U.S.C. 146.
(1) Pursuant to 35 U.S.C. 141(d), if an adverse party elects to have all further review proceedings conducted under 35 U.S.C. 146 instead of under 35 U.S.C. 141, that party must file a notice of election with the United States Patent and Trademark Office as provided in § 104.2.
(2) A copy of the notice of election must also be filed with the Patent Trial and Appeal Board in the manner provided in § 42.6(b).
(3) A copy of the notice of election must also be served where necessary pursuant to § 42.6(e).
(c) For a civil action under 35 U.S.C. 146. The party initiating an action under 35 U.S.C. 146 must file a copy of the complaint no later than five business days after filing the complaint in district court with the Patent Trial and Appeal Board in the manner provided in § 42.6(b), and the Office of the Solicitor pursuant to § 104.2. Failure to comply with this requirement can result in further action within the United States Patent and Trademark Office consistent with the final Board decision.
37 CFR 90.3 Time for appeal or civil action.
(1) For an appeal under 35 U.S.C. 141. The notice of appeal filed pursuant to 35 U.S.C. 142 must be filed with the Director of the United States Patent and Trademark Office no later than sixty-three (63) days after the date of the final Board decision. Any notice of cross-appeal is controlled by Rule 4(a)(3) of the Federal Rules of Appellate Procedure, and any other requirement imposed by the Rules of the United States Court of Appeals for the Federal Circuit.
(2) For a notice of election under 35 U.S.C. 141(d). The time for filing a notice of election under 35 U.S.C. 141(d) is governed by 35 U.S.C. 141(d).
(3) For a civil action under 35 U.S.C. 145 or 146.
(i) A civil action must be commenced no later than sixty-three (63) days after the date of the final Board decision.
(ii) The time for commencing a civil action pursuant to a notice of election under 35 U.S.C. 141(d) is governed by 35 U.S.C. 141(d).
(1) Rehearing. A timely request for rehearing will reset the time for appeal or civil action to no later than sixty-three (63) days after action on the request. Any subsequent request for rehearing from the same party in the same proceeding will not reset the time for seeking judicial review, unless the additional request is permitted by order of the Board.
(2) Holidays. If the last day for filing an appeal or civil action falls on a Federal holiday in the District of Columbia, the time is extended pursuant to 35 U.S.C. 21(b).
(ii) Requested after the expiration of the period for filing an appeal of commencing a civil action, and upon a showing that the failure to act was the result of excusable neglect.
(2) The request must be filed as provided in § 104.2 of this title.
An applicant for a patent who is dissatisfied with a final written decision of the Board (other than a decision of the Board in a derivation proceeding) may seek judicial review either by an appeal to the U.S. Court of Appeals for the Federal Circuit (35 U.S.C. 141) or by a civil action in the U.S. District Court for the Eastern District of Virginia (35 U.S.C. 145). By filing an appeal to the U.S. Court of Appeals for the Federal Circuit, the applicant waives the right to seek judicial review by a civil action under 35 U.S.C. 145. See 35 U.S.C. 141.
A patent owner who is not satisfied with the final written decision of the Board in an ex parte reexamination may seek judicial review of the Board's decision only by appealing the decision of the Board to the U.S. Court of Appeals for the Federal Circuit pursuant to 35 U.S.C. 141. 35 U.S.C. 306.
Because inter partes reexamination procedures are found in Chapter 31 (and not in Chapter 30) of Title 35 of the United States Code, 35 U.S.C. 306 does not apply to an inter partes reexamination proceeding. Instead, pre-AIA 35 U.S.C. 315 continues to apply to inter partes reexamination proceedings. See Leahy-Smith America Invents Act, Pub. L. No. 112-29 § 6(c)(3)(C) and 37 CFR 90.1. Accordingly, the regulations in effect on July 1, 2012 govern judicial review of such proceedings, and this MPEP section does not apply to them. See MPEP § 2683 for further information regarding judicial review of inter partes reexamination proceedings.
A party dissatisfied with the final written decision of the Board in an inter partes review, post-grant review, or covered business method review proceeding may seek judicial review only by appealing the decision to the United States Court of Appeals for the Federal Circuit pursuant to 35 U.S.C. 141. See 35 U.S.C. 319 and 35 U.S.C. 329.
A party dissatisfied with the final written decision of the Board in a derivation proceeding may seek judicial review either by appealing the decision to the United States Court of Appeals for the Federal Circuit pursuant to 35 U.S.C. 141 or filing a civil action pursuant to 35 U.S.C. 146. An adverse party in a derivation proceeding appealed to the Federal Circuit may elect to have further judicial review proceedings conducted under 35 U.S.C. 146 instead.
Any notice of appeal filed in an inter partes review, post-grant review, covered business method review, or derivation proceeding must provide sufficient information to allow the Director to determine whether to exercise the right to intervene in the appeal pursuant to 35 U.S.C. 143. See 37 CFR 90.2(a)(3)(ii).
The time for filing a notice of a 35 U.S.C. 141 appeal to the U.S. Court of Appeals for the Federal Circuit or for commencing a civil action under 35 U.S.C. 145 is within 63 days of the Board’s decision. 37 CFR 90.3(a). The time for filing a notice of election, and for commencing a civil action pursuant to a notice of election, in an appeal from a derivation proceeding is governed by 35 U.S.C. 141(d). See 37 CFR 90.2(a)(2). However, if a timely request for rehearing of the Board’s decision is filed, the time for filing a notice of appeal to the U.S. Court of Appeals for the Federal Circuit or for commencing a civil action expires 63 days after a decision on a request for rehearing or reconsideration (37 CFR 90.3(b)(1)).
The times specified in 37 CFR 90.3 are calendar days. If the last day of the time specified for appeal or commencing a civil action falls on a Federal holiday in the District of Columbia, the time is extended to the next day which is neither a Saturday, Sunday, nor a Federal holiday (37 CFR 90.3(b)(2)).
Any notice of cross-appeal is controlled by Rule 4(a)(3) of the Federal Rules of Appellate Procedure, and any other requirement imposed by the Rules of the U.S. Court of Appeals for the Federal Circuit. See37 CFR 90.3(a)(1).
In 37 CFR 90.3(c), the Office has adopted a standard which is similar to the standard used in the Federal courts for granting extensions. Under the rule, the Director may extend the time (A) for good cause if requested before the expiration of the time provided for initiating judicial review or (B) upon a showing of excusable neglect in failing to initiate judicial review if requested after the expiration of the time period. This standard is applicable once the “last” decision has been entered, i.e., either the decision (in circumstances where no timely rehearing is sought) or the decision on rehearing of the Board in an ex parte appeal. Extensions of time under 37 CFR 1.136(b) and 37 CFR 1.550(c) and fee extensions under 37 CFR 1.136(a) are not available to extend the time for the purpose of seeking judicial review once a decision or a decision on rehearing has been entered.
A copy of the request may also be hand-carried to the Office of the Solicitor.
The administrative file of an application under judicial review will not be opened to the public by the U.S. Patent and Trademark Office, unless it is otherwise available to the public under 37 CFR 1.11.
During judicial review, the involved application or reexamination is not under the jurisdiction of the examiner or the Board, unless remanded to the U.S. Patent and Trademark Office by the court. Any amendment can be admitted only under the provisions of 37 CFR 1.198. See MPEP § 1214.07.
See MPEP § 1216.01 for the proper way to effect service on the Director of a notice of appeal to the U.S. Court of Appeals for the Federal Circuit. See MPEP § 1216.02 for the proper way to effect service on the Director of a complaint in a civil action.
Rule 5(b) of the Federal Rules of Civil Procedure provides that if a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party. The rule sets forth proper ways to serve papers, including delivering papers to the person or the person's office, or mailing papers to the person's last known address.
(A) By hand between 8:30 A.M. and 5:00 P.M. EST to the Office of the Solicitor at 600 Dulany Street, Madison West Building, Room 8C43, Alexandria, VA 22314.
While the above mail service address may be supplemented to include the name of the particular attorney assigned to the court case, it must not be supplemented to refer to either the Director or the U.S. Patent and Trademark Office.
Any court papers submitted to the U.S. Patent and Trademark other than by mail to the above mail service address or delivered by hand to the Office of the Solicitor are deemed to have been served on the Director when actually received in the Office of the Solicitor.
The above mail service address should not be used for noncourt papers, i.e., papers which are intended to be filed in the U.S. Patent and Trademark Office in connection with an application or other proceeding pending in the U.S. Patent and Trademark Office. ANY NONCOURT PAPERS WHICH ARE MAILED TO THE ABOVE MAIL SERVICE ADDRESS WILL BE RETURNED TO THE SENDER. NO EXCEPTIONS WILL BE MADE TO THIS POLICY.
35 U.S.C. 142 Notice of appeal.
When an appeal is taken to the United States Court of Appeals for the Federal Circuit, the appellant shall file in the Patent and Trademark Office a written notice of appeal directed to the Director, within such time after the date of the decision from which the appeal is taken as the Director prescribes, but in no case less than 60 days after that date.
35 U.S.C. 143 Proceedings on appeal.
With respect to an appeal described in section 142, the Director shall transmit to the United States Court of Appeals for the Federal Circuit a certified list of the documents comprising the record in the Patent and Trademark Office. The court may request that the Director forward the original or certified copies of such documents during the pendency of the appeal. In an ex parte case, the Director shall submit to the court in writing the grounds for the decision of the Patent and Trademark Office, addressing all of the issues raised in the appeal. The Director shall have the right to intervene in an appeal from a decision entered by the Patent Trial and Appeal Board in a derivation proceeding under section 135 or in an inter partes or post-grant review under chapter 31 or 32.
35 U.S.C. 144 Decision on appeal.
The United States Court of Appeals for the Federal Circuit shall review the decision from which an appeal is taken on the record before the Patent and Trademark Office. Upon its determination the court shall issue to the Director its mandate and opinion, which shall be entered of record in the Patent and Trademark Office and shall govern the further proceedings in the case.
Filing an appeal to the U.S. Court of Appeals for the Federal Circuit requires that the applicant (A) file in the U.S. Patent and Trademark Office a written notice of appeal (35 U.S.C. 142) directed to the Director; (B) file a copy of the notice of appeal with the Board in the manner provided in 37 CFR 41.10(a), 41.10(b), or 42.6(b), as appropriate; and (C) file with the Clerk of the Federal Circuit a copy of the notice of appeal and pay the docket fee for the appeal, as provided by Federal Circuit Rule 52. 37 CFR 90.2(a).
Additionally, the owner of a patent involved in an ex parte reexamination proceeding must comply with these requirements, and additionally must also serve the notice of appeal as provided in 37 CFR 1.550(f). 37 CFR 90.2(a)(3)(i). A party appealing the Board’s decision in an inter partes review, post-grant review, covered business method patent review, or derivation proceeding must include sufficient information in the notice of appeal to allow the Director to determine whether to exercise the right to intervene in the appeal pursuant to 35 U.S.C. 143, and must serve the notice of appeal as provided in 37 CFR 42.6(e).
An adverse party in a derivation proceeding appealed to the U.S. Court of Appeals for the Federal Circuit electing to have further judicial review proceedings conducted under 35 U.S.C. 146 must file a notice of election under 35 U.S.C. 141(d) with the Office as provided in 37 CFR 104.2. Such a party must also file a copy of the notice of election with the Board in the manner provided in 37 CFR 42.6(b), and, where necessary, must serve a copy of the notice of election pursuant to 37 CFR 42.6(e).
For a notice of appeal to be considered timely filed in the U.S. Patent and Trademark Office, it must: (A) actually reach the U.S. Patent and Trademark Office within the time specified in 37 CFR 90.3 (including any extensions) or (B) be mailed within the time specified in 37 CFR 90.3 (including any extensions) by Priority Mail Express® in accordance with 37 CFR 1.10.
(A) By mail addressed to the mailing address provided in 37 CFR 104.2(a), in which case the notice of appeal must actually reach the U.S. Patent and Trademark Office by the due date.
(B) By Priority Mail Express® under 37 CFR 1.10 addressed to the mailing address provided in 37 CFR 104.2(a), in which case the notice of appeal is deemed filed on the “date-accepted” on the Priority Mail Express® mailing label.
(C) By hand as provided in 37 CFR 104.2(b).
The Solicitor, prior to a decision by the U.S. Court of Appeals for the Federal Circuit, may request that the case be remanded to the U.S. Patent and Trademark Office and prosecution reopened. See MPEP § 1214.07.
After the U.S. Court of Appeals for the Federal Circuit has heard and decided the appeal, the Clerk of the U.S. Court of Appeals for the Federal Circuit forwards to the U.S. Patent and Trademark Office a certified copy of the court’s decision. This certified copy is known as the “mandate.” The mandate is entered in the file of the application, reexamination or interference which was the subject of the appeal. The date the mandate was issued by the Federal Circuit marks the conclusion of the appeal, i.e., the termination of proceedings as that term is used in 35 U.S.C. 120. See 37 CFR 1.197.
The U.S. Court of Appeals for the Federal Circuit’s opinion may or may not be precedential. Whether or not the opinion is precedential, the U.S. Patent and Trademark Office will not give the public access to the administrative record of an involved application unless it is otherwise available to the public under 37 CFR 1.11. However, since the court record in a 35 U.S.C. 141 appeal generally includes a copy of at least part of the application, the application may be inspected at the Federal Circuit. In re Mosher, 248 F.2d 956, 115 USPQ 140 (CCPA 1957).
If all claims in the case stand rejected, proceedings in the case are considered terminated on the issue date of the U.S. Court of Appeals for the Federal Circuit’s mandate. Because the case is no longer considered pending, it is ordinarily not open to subsequent amendment and prosecution by the applicant. Continental Can Company v. Schuyler, 326 F. Supp. 283, 168 USPQ 625 (D.D.C. 1970). However, exceptions may occur where the mandate clearly indicates that further action in the U.S. Patent and Trademark Office is to be taken in accordance with the U.S. Court of Appeals for the Federal Circuit’s opinion.
Where the case includes one or more allowed claims, including claims allowed by the examiner prior to appeal and claims whose rejections were reversed by either the Board or the court, the proceedings are considered terminated only as to any claims which still stand rejected. It is not necessary for the applicant or patent owner to cancel the rejected claims, since they may be canceled by the examiner in an examiner’s amendment. Thus, if no formal matters remain to be attended to, the examiner will pass the application to issue forthwith on the allowed claims or, in the case of a reexamination, will issue a “Notice of Intent to Issue a Reexamination Certificate.” See MPEP § 2287. The examiner should set forth the reasons for allowance, referring to and incorporating a copy of the appellate brief and the court decision. See MPEP § 1302.14.
If formal matters remain to be attended to, the examiner promptly should take appropriate action on such matters, such as by an examiner’s amendment or by an Office action setting a 1-month (but not less than 30-day) shortened statutory period for reply. However, the application or reexamination proceeding is considered closed to further prosecution except as to such matters.
Where the decision of the court brings up for action on the merits claims which were not previously considered on the merits (such as a decision reversing a rejection of generic claims in an application containing claims to nonelected species), the examiner will take the case up for appropriate action on the matters thus brought up.
In some situations it may be necessary to reopen prosecution of an application after a court decision. Any Office action proposing to reopen prosecution after a court decision must be forwarded to the Office of the Deputy Commissioner for Patent Examination Policy for written approval, which will be indicated on the Office action.
After an appeal is docketed in the U.S. Court of Appeals for the Federal Circuit, failure to prosecute the appeal, such as by appellant’s failure to file a brief, may result in dismissal of the appeal by the court. Under particular circumstances, the appeal also may be dismissed by the court on motion of the appellant and/or the Director.
In the event of a dismissal for a reason other than failure to prosecute the appeal, the status of the application or reexamination proceeding must be determined according to the circumstances leading to the dismissal.
A civil action under 35 U.S.C. 145 or 146 is commenced by filing a complaint in the U.S. District Court for the Eastern District of Virginia within the time specified in 37 CFR 90.3(a)(3)(i) (see MPEP § 1216). Furthermore, copies of the complaint and summons must be served in a timely manner on the Director, the U.S. Attorney for the District of Columbia, and the Attorney General in the manner set forth in Rule 4(i) of the Federal Rules of Civil Procedure. All the expenses of the proceedings shall be paid by the applicant (see 35 U.S.C. 145).


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Does the European Court of Human Rights (ECtHR) read the UCall blog? One would almost be inclined to believe so. In an earlier UCall blogpost, we criticized the Court’s approach to life imprisonment cases. In particular, we took issue with the imposition of a strict version of the European rehabilitation approach to penalties (‘the right to hope’) on third states. It is recalled that in Trabelsi v. Belgium (2014), the Court found Belgium in violation of Article 3 ECHR – the prohibition of inhuman treatment – by exposing presumed terrorist Trabelsi to the risk of an irreducible life sentence by extraditing him to the United States. We took the view that in this case, the Court did not do sufficient justice to the possibility of earlier release in the United States, e.g., through presidential pardon, and voiced concerns over the viability of transatlantic anti-terrorism cooperation.
In Hutchinson v. United Kingdom, the Court now seems to have made a quasi-U-turn by overturning its own judgment in Vinter v. United Kingdom, on which Trabelsi was ultimately based. In Vinter, the Court had held that a whole-life prisoner was entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence takes place or could be sought. It then went on to find that the UK had violated Article 3 ECHR with respect to the applicants because, given the lack of clarity in domestic law concerning the existence of an Article 3-compliant review mechanism, it appeared that the life sentences imposed on them were irreducible.
After Vinter, however, UK courts concluded that the ECtHR was actually mistaken: in R v. Newell; R v. McLoughlin  EWCA Crim 188, the Court of Appeal held that, unlike what the ECtHR believed, ‘the law of England and Wales (…) does provide to an offender ‘hope’ or the ‘possibility’ of release in exceptional circumstances which render the just punishment originally imposed no longer justifiable’ (para. 35). One would assume that the ECtHR would not be particularly amused by this second-guessing of its own – Grand Chamber – judgment. But then, in this new case of Hutchinson v. UK, the Court appears to have no problems in admitting that it got it wrong in Vinter, or at least that it had not paid proper attention to the self-correcting capacities of states’ domestic legal systems. Relying on the well-known doctrine of the margin of appreciation, the Court recalled that it is ´primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation´ (Hutchinson, para. 24), and that the ‘Grand Chamber’s judgment in which it expressed doubts about the clarity of domestic law, the national court has specifically addressed those doubts and set out an unequivocal statement of the legal position, the Court must accept the national court’s interpretation of domestic law’ (para. 25).
To be sure, the Court does not backpedal on its affirmation of the right to hope for those sentenced to life imprisonment. That being said, it recognizes that, at first sight, unclear legal provisions do not exclude the possibility of early release on broadly defined compassionate grounds. In addition, it confirms that a discretionary decision by a political actor – the Secretary of State for Justice – can meet the procedural requirements of a detainee’s right to hope; a judicial decision is not required. This opens perspectives for ECHR Contracting Parties exposing, via extradition, individuals to the risk of life imprisonment in third countries – such as the US in Trabelsi. As it happens, the case of Trabelsi is currently pending before the Grand Chamber of the ECtHR. It is likely that the Court’s decision in Hutchinson, which acknowledged the agency of the individual state, will impact on the Court’s deliberations (see in this respect also ejiltalk). Arguably, if in an internal life imprisonment case the discretionary power of a political actor is considered to pass muster, such power should be recognized a fortiori in an external case, concerning possible life imprisonment imposed by a non-ECHR Contracting Party.
In our earlier blogpost, we flagged that the Court’s judicial activism risks estranging states, notably the United Kingdom, from the Court, with dire consequences. By now deferring to the UK´s legal procedures in Hutchinson, it appears to be currying favour with the UK again. It would be a travesty if an ECHR Contracting Party such as the UK is given a larger margin of appreciation than a non-ECHR Contracting Party. In fact, the contrary should happen. Therefore, the Grand Chamber in Trabelsi is advised to pay deference to the possibility of early release through presidential pardon in the US, and to rule that Belgium did not violate Article 3 ECHR by extraditing Trabelsi to the US.
Dit bericht werd geplaatst in Verantwoordelijkheid voor Mensenrechten en Internationale Verplichtingen op februari 24, 2015 door Cedric Ryngaert.

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ORTHOPEDIC & SPORTS PHYSICAL THERAPY ASSOCIATES, INC., et al.
Record No. 110849. No. 110849.Supreme Court of Virginia.
April 20, 2012.Summary: In a lawsuit brought by a limited liability company that owned a medical office building asserting claims for breach of a lease contract and damages, in which the defendant tenant filed counterclaims alleging fraud in the inducement, the trial court erred in giving an instruction to the jury that it could only find liability of the LLC for fraudulent activity if the conduct was approved by the members of the LLC. The instruction was misleading because it was not a complete statement of the law concerning whether the activity was in the normal course of the business of the LLC. The judgment of the circuit court implementing a jury verdict for the plaintiff LLC is reversed and the case is remanded.
719*719 William E. Glover (Glover & Dahnk, Fredericksburg, on briefs), for appellants.
Margaret F. Hardy, Fredericksburg (Sands Anderson, on brief), for appellee.
Opinion by Justice CLEO E. POWELL.
In this appeal, Orthopedic & Sports Physical Therapy Associates, Inc. (“OSPTA”) argues that the trial court erred in granting Instruction 15, offered by Summit Group Properties, LLC (“Summit”), because it misstated the law by instructing the jury that a limited liability company (“LLC”) could not be liable for any fraudulent activity unless the fraud was approved by the members of the LLC. We agree with OSPTA that Instruction 15 was misleading because it was not a complete statement of the law, and hold that the trial court erred in giving the instruction.
Brian P. D’Orazio, Barbara D. Ehman, and Marshall A. Rennie were partners in OSPTA. Together, they approached Doctors Kurt Larson, Raymond Chung, and Raymond Kirchmier of Orthopedic Specialty Clinic (“OSC”) and five other individuals from Cardiology Associates of Fredericksburg (“CAF”) to form Massaponax Medical Properties, L.L.C. (“MMP”). D’Orazio was the first president of MMP and Dr. Larson was its first treasurer. MMP intended to purchase land in the Massaponax area of Spotsylvania County, build a medical office building, and then sell the finished property to a third party with OSPTA, OSC, and CAF as tenants.
On October 18, 2007, the five members of CAF submitted an offer to MMP to purchase the property. After that offer was submitted, the three members of OSC approached CAF and asked to join them in purchasing the property. The eight then formed Summit on December 28, 2007, to purchase and operate the building.
OSPTA executed a lease with MMP on January 31, 2008. OSC and CAF entered into identical leases. Summit eventually purchased the building and assumed the leases from MMP in September of 2008.
Prior to opening the Massaponax office building, OSC was the largest referral source for OSPTA as OSC did not have its own physical therapy practice. Ehman testified that she spoke with the OSC doctors about their plans and the needs of OSC upon expansion to the Massaponax office. She also admitted that OSPTA did not discuss any referral/rent arrangement with OSC. However, because OSC did not have physical therapists, OSPTA made its decision to enter into a long term lease based on its assumption that it would continue to receive referrals from OSC.
During 2007, Dr. Larson decided that OSC would begin offering physical therapy at the new Massaponax office. To do this, OSC hired two physical therapists from OSPTA in 2007. Ehman and D’Orazio contend that Dr. Larson made this decision on behalf of OSC. The opening of OSC’s Massaponax office had a significant, negative effect on OSPTA’s practice. On August 15, 2009, OSPTA vacated its office space, thereby breaching its lease.
An act of a member, including the signing of an instrument in the limited liability company name, for apparently carrying on in the ordinary course the limited liability company business or business of the kind carried on by the limited liability company, binds the limited liability company, unless the member had no authority to act for the limited liability company in the particular matter and the person with whom the member was dealing knew or had notice that the member lacked authority.
Summit offered an instruction informing the jury that to find it guilty of fraud, the jury was required to find that fraudulent activity was authorized by the members of the LLC. OSPTA objected and argued that Summit’s instruction was an incorrect statement of the law because it omitted the “ordinary course of business” requirement. The court overruled the objection and gave the instruction as Instruction 15.
OSPTA argued that Summit’s ordinary course of business was purchasing and leasing the Massaponax office building and that members of OSC who were also members of Summit concealed information and made material misrepresentations to induce OSPTA to sign the lease. OSPTA contended that by giving the jury a proper, amended instruction, the jury would be tasked with deciding whether OSC’s actions were within the ordinary course of Summit’s business.
Summit’s theory of the case was that to the extent that misrepresentation and/or concealment occurred, it took place before Summit 721*721 was formed, certainly before it assumed the leases, and was done in the course of OSC’s business.
The jury returned a verdict in favor of Summit against OSPTA in the amount of $187,000 plus interest. It found for Summit on OSPTA’s counterclaim.
In its post-trial motions, OSPTA argued that Instruction 15 conveyed to the jury that Summit could not be held liable unless all of the members of Summit approved the fraud and was therefore both legally and semantically wrong. OSPTA argued that because of this instruction, Summit erroneously argued to the jury that a majority of the members of Summit had to authorize the fraudulent activity. The trial court denied these motions. This appeal follows.
our responsibility is to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises. [A] litigant is entitled to jury instructions supporting his or her theory of the case if sufficient evidence is introduced to support that theory and if the instructions correctly state the law. The evidence introduced in support of a requested instruction must amount to more than a scintilla.
Bennett v. Sage Payment Solutions, Inc., 282 Va. 49, 55, 710 S.E.2d 736, 740 (2011) (quoting Williams v. Cong Le, 276 Va. 161, 166, 662 S.E.2d 73, 76 (2008)). “We read the granted jury instructions together and consider them as a whole. The determination whether a jury instruction accurately states the relevant law is a question of law that we review de novo.” Hawthorne v. VanMarter, 279 Va. 566, 586, 692 S.E.2d 226, 238 (2010) (citations omitted).
Summit’s theory of the case is that the lies and misrepresentations pertained to whether OSC would offer physical therapy as part of OSC’s business. Since physical therapy is not part of Summit’s business, it argues that the acts in question were not within the scope of Summit’s business. Summit contends that this theory is further supported by the facts that Summit was not a party to the lease, OSPTA intended to enter the lease long before Summit existed, and the lease predates Summit owning the property. As such, the members of Summit would have had to authorize the fraudulent actions for Summit to be liable.
[a]n act of a member … for apparently carrying on in the ordinary course the limited liability company business or business of the kind carried on by the limited 722*722 liability company, binds the limited liability company, unless the member had no authority to act for the limited liability company in the particular matter and the person with whom the member was dealing knew or had notice that the member lacked authority.
Thus, Instruction 13 accurately stated the law applicable to the circumstance when a fraudulent act was committed in the ordinary course of an LLC’s business.
The Plaintiff Summit Group Properties, LLC, is a limited liability company. In order for you to find that Summit Group Properties, LLC, is guilty of fraud, you must find that the fraudulent activity was authorized by the members of Summit Group Properties, LLC.
According to Summit, this instruction is based upon Code § 13.1-1021.1(A)(3), which states that any act of a member “which is not apparently for carrying on in the ordinary course the limited liability company business or business of the kind carried on by the limited liability company binds the limited liability company only if the act was authorized by the other members in accordance with § 13.1-1022.” The problem with Instruction 15, however, is that it omits the language “not apparently for carrying on in the ordinary course” of the LLC’s business.
“[A] litigant is entitled to jury instructions supporting his or her theory of the case if sufficient evidence is introduced to support that theory and if the instructions correctly state the law. The evidence introduced in support of a requested instruction must amount to more than a scintilla.” Williams v. Cong Le, 276 Va. 161, 166, 662 S.E.2d 73, 76 (2008) (citation and internal quotation marks omitted).
Depending on the nature of the act at issue in a particular case, i.e., whether it was one conducted in the “ordinary course” of the LLC’s business, an instruction based on Code § 13.1-1021.1(A)(2) (in the ordinary course of) or Code § 13.1-1021.1(A)(3) (not in the ordinary course of) may be appropriate. In this case, the alleged fraudulent acts were lies and omissions by OSC, whose members are three of the eight members of Summit. Therefore, the dispositive question in this case is whether the actions by OSC’s members were in the ordinary course of Summit’s business. Instruction 15 lacked the “not apparently for carrying on in the ordinary course of business” language that would have modeled it after Code § 13.1-1021.1(A)(3). As such, it was error to give this instruction.
Summit further asserts that even if it was error for Instruction 15 to have been given, any error was harmless. We disagree with this contention.
This Court has often found that where an erroneous instruction conflicts with an instruction that correctly states the law, the verdict must be set aside because it is impossible to determine which instruction was the basis for the jury’s decision.
Nevertheless, a jury verdict based on an erroneous instruction need not be set aside if it is clear that the jury was not misled.
Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 536-37, 636 S.E.2d 416, 426 (2006)(citations omitted).
Here, the jury asked: “In regard to Instruction 15, `Do the actions or non-actions of a minority portion of the group represent the authority of the group?'” From this question, we can infer that during the deliberations the jury considered whether some members of Summit committed fraud. If the fraud was committed in the ordinary course of the LLC’s business, then fraudulent acts by one 723*723 member of the LLC would bind it. If, however, the fraud was not committed in the ordinary course of the LLC’s business, then the jury would have had to have found that the fraudulent activity was “authorized by the other members….” Code § 13.1-1021.1(A)(3). The danger is that by omitting necessary language from Instruction 15, the jury may have been misled into thinking that to find Summit liable the activity must have been authorized by the other members even if the fraudulent act was within the ordinary course of Summit’s business. Because we cannot tell whether the jury believed that fraud was committed in the ordinary course of OSC’s business or in the ordinary course of Summit’s business, we cannot conclusively say that the jury was not misled. Therefore, the granting of Instruction 15 was not harmless error.
For the foregoing reasons, we will reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Justice McCLANAHAN, concurring in part and dissenting in part.
Although I concur in the majority’s holding that the trial court erred in giving Instruction 15, I believe the trial court’s error was harmless since there was no evidence the misrepresentations were made “for apparently carrying on in the ordinary course [of Summit’s] business.” Code § 13.1-1021.1(A)(2).
The evidence at trial established there were no discussions between the partners in OSPTA and the physicians from OSC regarding the continuation of referrals, OSPTA’s reliance on referrals from OSC, or the intention of OSC to offer in-house physical therapy services. Instead, partners in OSPTA testified they assumed OSC would continue making physical therapy referrals to OSPTA at the same level and would not provide its own in-house physical therapy services. Thus, OSPTA’s theory of fraudulent inducement was based on OSC’s concealment of its true intentions to provide its own physical therapy services.
Even if the trial court had properly instructed the jury that it could find Summit liable for fraudulent inducement if it found that misrepresentations of members of OSC were made for apparently carrying on in the ordinary course of Summit’s business, the jury could not have reached a different verdict. Blue Stone Land Co. v. Neff, 259 Va. 273, 279, 526 S.E.2d 517, 519 (2000) (“Under the harmless error doctrine, the judgment of the court below will be affirmed whenever we can say that the error complained of could not have affected the result.”). I would, therefore, affirm the judgment of the trial court.
 Although OSC surreptitiously hired two physical therapists from OSPTA in 2007, OSC did not open its physical therapy practice for some time. This advance hiring was done to allow the employees’ non-compete agreements to expire prior to the opening of OSC’s Massaponax office.
 In part, Summit argues that Instruction 15 was harmless because OSPTA offered no evidence of misrepresentation and failed to prove that it was induced to enter the lease based on fraud. The evidence of misrepresentation was that 1) prior to the opening of the Massaponax office building, OSC was OSPTA’s primary referral source; 2) at that time, OSC did not have its own physical therapy practice; 3) Ehman spoke with OSC doctors about their plans and needs upon expansion to the Massaponax office; 4) OSC hired two physical therapists from OSPTA in a surreptitious manner; and 5) OSC never told OSPTA that it was going to open a physical therapy practice. The jury was instructed that “[a] misrepresentation may result from silence or from the suppression of facts as well as from an affirmative representation.” Therefore, the issues of whether there was actual evidence of misrepresentation and fraud were for the jury to decide.
[*] Indeed, concealment by the physicians of OSC of plans to offer physical therapy treatment apparently pre-existed their participation in the formation of Summit and the purchase of the building from MMP. The nature of this concealment as being in the ordinary course of their business in operating OSC did not change once they decided to purchase the building and become members of Summit.


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recommended decision, I have decided to adopt the ALJ's rulings, findings of fact, conclusions of law, and recommended decision to grant the Government's Motion for Summary Decision.
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration, BT9856002, issued to Treasure Coast Specialty Pharmacy, be, and it hereby is, revoked. I further order that any pending application of Treasure Coast Specialty Pharmacy, to renew or modify his registration, be, and it hereby is, denied. This Order is effective immediately.
Gail A. Randall, Administrative Law Judge. On June 27, 2011, the Administrator, Drug Enforcement Administration ("DEA" or "Government"), issued an Order to Show Cause and an Immediate Suspension of Registration ("Order"), immediately suspending the DEA Certificate of Registration, No. BT9856002, of Treasure Coast Specialty Pharmacy ("Treasure Coast"), as a retail pharmacy pursuant to 21 U.S.C. 824(d) (2006), because Treasure Coast's continued registration constitutes an imminent danger to the public health and safety. The Order also proposed to deny any pending DEA registration applications by Treasure Coast and to deny the pending application for DEA registration by Pappy's Drugs d/b/a Prima Vista Pharmacy ("Pappy's Drugs") because their registrations would be inconsistent with the public interest, as that term is used in 21 U.S.C. 823(f).
Specifically, the Order alleged that Treasure Coast "has dispensed and continues to dispense controlled substances, primarily Schedule III anabolic steroids and Schedule II narcotics under circumstances demonstrating that [Treasure Coast] knew or should have known" that those prescriptions were not issued for a legitimate medical purpose. [Order at 2]. The Order explains that this knowledge must be inferred from Treasure Coast's association with and filling of prescriptions issued by physicians who have pled guilty in federal court to unlawfully distributing steroids, and who market themselves as providing "hormone replacement therapy" and "anti-aging" services. [Id.]. In addition, the Order alleges that Treasure Coast dispensed controlled substances based on invalid prescriptions where the prescribing practitioners were not licensed to prescribe controlled substances in the various states where their patients were located." [Id.]. Further, the Government alleges that despite Treasure Coast being apprised that it is illegal for it to practice in North Carolina without a license, the pharmacy continued to ship anabolic steroids to customers located in that state. [Id. at 3-4].
Next, the Government alleged that Treasure Coast filled prescriptions for Schedule II controlled substances prescriptions "under circumstances indicating that the drugs are diverted from legitimate channels, misused, or abused." [Id. at 4].
On July 28, 2011, counsel for Treasure Coast and Pappy's Drugs (collectively, "Respondents") timely filed a request for a hearing in the above-captioned matter.
On July 29, 2011, the Government filed its Motion For Summary Disposition And Motion to Stay Proceedings ("Government's Motion"). Therein, the Government moved for summary disposition of the portion of these proceedings that relate to Treasure Coast's registration. The Government based its motion on the fact that the State of Florida suspended Treasure Coast's registration as a community pharmacy and, therefore, Treasure Coast currently lacks state authority to handle controlled substances.
On August 1, 2011, I ordered the Respondents to file a response to the Government's Motion, if any, on or before August 5, 2011.
On August 5, 2011, counsel for the Respondents filed their Respondents' Response to DEA's Motion For Summary Disposition And Motion To Stay Proceedings ("Respondents' Response"). Therein, the Respondents argued that the Government is precluded from using Treasure Coast Pharmacy's lack of state licensure as a basis for revocation of its DEA registration, through summary disposition or otherwise, as the Government failed to state those grounds in its Order to Show Cause. Consequently, the Respondents' aver that Treasure Coast's due process rights require the Government "to serve an Order to Show Cause * * * stating the DEA's new or substituted basis for revocation and calling upon [Treasure Coast] to appear at the time and place stated in the Order to Show Cause, but in no event less than thirty days after the date of receipt of this order." [Resp. Response at 2]. In addition, the Respondents argue that under applicable Florida law the owner of a pharmacy need not be licensed as such, yet must designate a managerial pharmacist that is so licensed. Further, citing Federgo v. Department of Professional Regulation, 452 So.2d 1063 (Fla. 3rd DCA 1984), the Respondents state that alleged wrongdoing of a pharmacist does not trigger nor support the suspension of the pharmacy's state license. [Id. at 3].
On August 5, 2011, I ordered the Government to reply to the Respondents' Response no later than August 12, 2011.
On August 9, 2011, counsel for Treasure Coast filed its Respondents' Supplemental Response to DEA's Motion For Summary Disposition And Motion To Stay Proceedings. Therein, the Respondents argue that Treasure Coast has a valid Florida retail pharmacy drug wholesale distribution license, and on that basis summary disposition is inappropriate.
The Administrative Procedures Act (APA), 5 U.S.C. 551 et seq, does not * * * mandate * * * an inelastic application of the strictures of administrative due process: "[p]leadings in administrative proceedings are not judged by the standards applied to an indictment at common law." Citizens State Bank of Marshfield v. FDIC, 751 F.2d 209, 213 (8th Cir. 1984) (quoting Aloha Airlines v. Civil Aeronautics Bd., 598 F.2d 250, 262 (DC Cir. 1979), cited in Liddy's Pharmacy, L.L.C., 76 FR 48887, 48896, fn 15. As noted in Liddy's, "the failure of the Government to disclose an allegation in the Order to Show Cause is not dispositive, and an issue can be litigated if the Government otherwise timely notifies a respondent of its intent to litigate the issue." Id. Due process is traditionally measured by the notice accorded respondents not by the contents of the OTSC but by subsequent prehearing statements. Id. citing Darrell Risner, DMD, 61 FR 728, 730 (1996); Nicholas A. Sychak, d/b/a Medicap Pharmacy, 65 FR 75959, 75961 (2000); John Stafford Noell, 59 FR 47359, 47361 (1994).
the Respondent due process when it notified Treasure Coast of its basis for summary disposition in the Government's prehearing Motion for Summary Disposition [Id. at 4].
Next, the Government addresses the substantive basis for its Motion. Specifically, the Government argues that Treasure Coast's possession of a wholesale distributor permit is meaningless, as the loss of its community pharmacy license renders that permit useless. [Id. at 5-6]. The Government points to Florida Statute Sections 499.01(2)(f) and 499.003(51) for the proposition that a pharmacy's possession of a wholesale distributor permit is conditioned on that pharmacy's maintenance of a community pharmacy license. [Id. at 5]. The Government buttresses this argument via provision of a letter from the Chief Legal Counsel for the Emergency Action Unit of the Florida Department of Health, stating "[b]ecause Treasure Coast's community pharmacy permit is presently suspended, Treasure Coast may not operate under either its community pharmacy permit or its wholesale distributor permit." [Id.]. Hence, the Government argues that the Respondent currently lacks state authority to handle controlled substances and, therefore, summary revocation of its DEA registration is appropriate.
For the reasons set forth below, I will grant the Government's Motion and recommend that the Deputy Administrator revoke Treasure Coast's DEA Certificate of Registration and deny any currently pending applications to renew its registration.
First, I reject Treasure Coast's argument that it will not be afforded procedural due process if its registration is revoked due to its lack of state licensure, as that basis was not noticed in the Government's Order. As correctly stated by the Government, the confines of this administrative proceeding are not defined by the Government's Order to Show Cause, but rather the Government's prehearing disclosures, in toto. [See George Mathew, M.D., 75 FR 66,138, 66146 (DEA 2010)]. Further, the DEA has consistently followed Goldberg v. Kelly, 397 U.S. 254, 270 (1970), by writing: "In Goldberg, the Supreme Court held that 'where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue.' " [Beau Boshers, M.D., 76 FR 19,401, 19,403 (DEA 2011) (citing Goldberg, 397 U.S. at 270 (quoting Greene v. McElroy, 360 U.S. 474, 496 (1959))]. The Court has further explained that "[a] party is entitled * * * to know the issues on which [the] decision will turn and to be apprised of the factual material on which the agency relies for decision so that he may rebut it. Indeed, the Due Process Clause forbids an agency to use evidence in a way that forecloses an opportunity to offer a contrary presentation." [Id. (citing Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 288 n.4 (1974))]."
Here, the Government put the Respondent on notice through its Motion for Summary Disposition. Accordingly, Treasure Coast's due process rights are not violated because the Government, through its prehearing Motion, timely notified Treasure Coast of its intent to pursue revocation of its registration on the basis of the pharmacy's lack of state licensure. In its Response, Treasure Coast had the opportunity to rebut the factual basis upon which the Government based its Motion. For this reason, Treasure Coast's due process argument fails.
The DEA will not maintain a controlled substances registration if the registrant is without state authority to handle controlled substances. The Controlled Substances Act ("CSA") provides that obtaining a DEA registration is conditional on holding a state license to handle controlled substances. [See 21 U.S.C. 823(f) ("the Attorney General shall register practitioners (including pharmacies * * *) * * * if the applicant is authorized to dispense * * * controlled substances under the laws of the State in which he practices"). See also 824(a)(3) (stating "a registration may be suspended or revoked by the Attorney General upon a finding that the registrant has had his State license or registration suspended, revoked or denied by competent State authority")]. The DEA, therefore, has consistently held that the CSA requires the DEA to revoke the registration of a registrant who no longer possesses a state license to handle controlled substances. [See e.g. Joseph Baumstarck, 74 FR 17,525, 17,527 (DEA 2009) (stating the "ALJ applied the Agency's long-settled ruled [sic] that a practitioner may not maintain his DEA registration if he lacks authority to handle controlled substances under the laws of the state in which he practices"); Roy Chi Lung, M.D., 74 FR 20,346 (DEA 2009); Gabriel Sagun Orzame, M.D., 69 FR 58,959 (DEA 2004); Alton E. Ingram, Jr., M.D., 69 FR 22,562 (DEA 2004); Graham Travers Schuler, M.D., 65 FR 50,570 (DEA 2000); Dominick A. Ricci, M.D., 58 FR 51,104 (DEA 1993)].
The parties do not dispute that the State of Florida suspended Treasure Coast's retail pharmacy registration. Therefore, Treasure Coast no longer possesses authority under that license to handle controlled substances. However, Treasure Coast argues that it currently possesses other state authority to handle controlled substances, through its maintenance of a wholesale distributor permit.
Nevertheless, I am persuaded by the Government's argument that the State of Florida did not intend a pharmacy, who lacks authority to handle controlled substances under a retail pharmacy registration, to be permitted to handle controlled substances under a wholesale distribution permit. Not only is the alternative plainly inconsistent with Florida law, it renders an absurd interpretation of those laws. [See Fla. Stat. 499.01(2)(f) (2010) (only permitting a retail pharmacy to obtain a wholesale distribution permit); 499.003(51) (defining "retail pharmacy" as "a community pharmacy licensed under chapter 465"); Durr v. Shinseki, 638 F.3d 1342, 1348 (11th Cir. 2011) ("[b]ecause the legislature is presumed to act with sensible and reasonable purpose, statute should, if at all possible, be read so as to avoid unjust or absurd conclusion.")].
This interpretation is consistent with the letter from the Chief Legal Counsel, Emergency Action Unit, Florida Department of Health, who wrote that, "[b]ecause Treasure Coast's community pharmacy permit is presently suspended, Treasure Coast may not operate under either its community pharmacy permit or its wholesale distributor permit." [Government's Reply, attachment 3]. Therefore, because, as a matter of law, Treasure Coast no longer possesses state authority to handle controlled substances, its DEA registration must be revoked.
falsity of that assertion, the DEA registers pharmacies, not pharmacists,\1\ and Treasure Coast as a retail pharmacy currently lacks state authority to operate.
In addition, the Respondents' argument that the State of Florida may not revoke a pharmacy's registration on the basis of its pharmacist's wrongdoing is equally irrelevant. Upon a motion for summary disposition due to lack of state licensure, the DEA will not consider whether the State has a valid basis for revoking the Respondent's registration; it will only consider whether the Respondent currently possesses state authority. As Treasure Coast does not, its registration must be revoked.
\2\ This opinion does not reach the other factual issues made in the Order to Show Cause. Rather, this opinion solely addresses Treasure Coast's loss of ability to handle controlled substances in the State of Florida, and, thus, ability to maintain a DEA registration.
I also forward the portion of this case that relates to Treasure Coast's registration to the Deputy Administrator for final disposition. I recommend that Treasure Coast's DEA Certificate of Registration, Number BT9856002, be revoked and any pending renewal applications for this registration be denied.

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Present: Greco, P.J., [Note 3] Swan & Singh, JJ.
Kenneth J. DeMoura for the plaintiffs.
Sean M. Beagan for the defendants.
haired dachshund named Devine. According to their agreement, the Waggoners retained certain breeding rights after transfer of Devine to the Keanes. Shortly after the Keanes received Devine, however, issues arose. The Keanes accused the Waggoners of having deceived them as to Devines pedigree. The Waggoners countered that the Keanes had failed to honor their breeding rights and had further attempted to ruin their reputation by spreading lies about their business dealings. After trial, a jury found the Keanes liable to Vom Daxi Haus, LLC for breach of contract. The Keanes appealed on the basis that they had never entered into such a contract. We agree and, as a result, vacate the judgment. We also reverse the order dismissing the actual parties to the contract from the case and remand the matter for trial.
breach of contract. [Note 4] After the court denied their motion for judgment notwithstanding the verdict or new trial, the Keanes appealed.
We agree with the Keanes that the claim of Vom Daxi Haus, LLC for breach of contract should not have gone to the jury as there was insufficient evidence that Vom Daxi Haus, LLC was a party to the contract. See T. Butera Auburn, LLC v. Williams, 83 Mass. App. Ct. 496 , 501 (2012) (standard of review on motion for judgment notwithstanding verdict and motion for directed verdict is same: whether reasonable inference could be drawn in favor of nonmoving party); Smith v. Wright, 2013 Mass. App. Div. 24 , 27; Mass. R. Civ. P. 50. Instead, the evidence tended to show, at most, that the Waggoners were acting as individuals under a trade name.
It is well established that individuals acting on behalf of a corporate entity have the burden to disclose such representative capacity; otherwise, they may be held personally liable. Atlantic Salmon A/S v. Curran, 32 Mass. App. Ct. 488 , 493 (1992); Mechanical Serv. Engrs, Inc. v. Fineberg Mgt., Inc., 1999 Mass. App. Div. 109 , 110. Here, there was no evidence presented at trial from which the jury could have inferred that the Waggoners were acting on behalf of a corporate entity. The contract that was admitted into evidence listed the seller as Jacqulyn Waggoner, without any indication of representative capacity. While the contract referenced Jacqulyn Waggoner Family of Vom Daxi Haus, Vom Daxi Haus, and Vom Daxi Haus Lildoxis, it made no reference to Vom Daxi Haus, LLC. Likewise, the website referenced in the contract and the communications between the parties surrounding the contract also made no reference to Vom Daxi Haus, LLC. There was no evidence presented at trial that the Waggoners at any point put the Keanes on notice that they were acting on behalf of a corporate entity, rather than as individuals who did business under a trade name.
Vom Daxi Haus, LLC simply argues that the Keanes were educated and experienced with business matters and therefore could have determined for themselves that it was registered as a domestic limited liability company in the state of Wisconsin. However, the onus was not on the Keanes to determine with whom they were dealing; rather, the Waggoners bore the burden, if they were to avoid personal liability, to disclose fully the identity of the principal on whose behalf they were acting. Atlantic Salmon A/S, supra at 493. And it does not matter that the Keanes, through research, may have had the means to discover the information; by entering into the agreement without disclosing that they were acting on behalf of a corporate entity, the Waggoners assumed personal liability. Id. As there was no evidence presented at trial that Vom Daxi Haus, LLC was a party to the contract, the judgment in its favor is vacated.
Moreover, the pretrial order dismissing the Keanes claims against the Waggoners must also be reversed. The order was based on the motion of the Waggoners indicating that they could not be held liable in their individual capacities because, in entering into the contract, they were merely acting as agents for Vom Daxi Haus, LLC. Attached to their supporting memorandum, the Waggoners presented a document from the Wisconsin Department of Financial Institutions, referencing Vom Daxi Haus, LLC as a registered domestic limited liability company. The Keanes opposed the motion with an affidavit indicating that they had no knowledge of the corporate entity and that the Waggoners had not disclosed the existence of it, either within the terms of the contract or by any other means. Whether treated as a motion to dismiss under Mass. R. Civ. P. 12 or as one for summary judgment under Mass. R. Civ. P. 56, see Ajemian v. Yahoo!, Inc., 83 Mass. App. Ct. 565 , 566 (2013) (motion to dismiss may be converted to one for summary judgment if evidence in addition to pleadings is presented), the Waggoners failed to establish that, as a matter of law, the Keanes could not maintain an action against them. See Vranos v. Skinner, 77 Mass. App. Ct. 280 , 282 & 291 (2010) (pleadings on motion to dismiss and evidence on motion for summary judgment to be viewed in light most favorable to nonmoving party). The existence of the corporate entity, in and of itself, did not shield the Waggoners from personal liability, particularly where there was no evidence presented that the corporate entity had entered into the contract in question.
[Note 1] Christopher Keane, the husband of Heather J. Keane.
[Note 2] Jacqulyn Waggoner, the wife of Mark Waggoner, and Vom Daxi Haus, LLC, a limited liability company owned by the Waggoners.
[Note 3] The Honorable Robert V. Greco, Presiding Justice, participated in the hearing and review of this appeal, but retired before the issuance of this opinion.
[Note 4] The jury returned verdicts against the Keanes on their claims for breach of contract and fraud, and against Jacqulyn Waggoner on her claim for defamation. There appears to have been no adjudication of the Keanes G.L. c. 93A claim, despite the filing of proposed findings and rulings. As such, there was no final judgment to allow an appeal to go forward. See Culley v. Cato, 460 Mass. 1009 , 1011 (2011) (parties had no final judgment from which to appeal where G.L. c. 93A claim remained outstanding). As there was no objection, and in the interests of judicial economy, we address the merits.
[Note 5] Given our disposition of the appeal, we need not address the remaining claims.

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The District Court, sitting without a jury, held that opium prepared for smoking purposes was not merchandise within the meaning of section 2809 and that being outlawed by the statutes it had no value; and gave judgment for the defendant. 262 Fed. 1001. The judgment was affirmed by the Circuit Court of Appeals, one Judge dissenting, on the former ground. 270 Fed. 958. A writ of certiorari was granted by this Court. 256 U. S. 688, 41 Sup. Ct. 624, 65 L. Ed. 1172. It was stated below that the defendant had been convicted of smuggling; but the record does not disclose the fact, if material, and nothing turns upon it. The points mentioned are the only ones to be discussed.
The collection of duties is not the only purpose of a manifest, as is shown by the requirement of one for outward bound cargoes and from vessels in the coasting trade bound for a port in another collection district, Rev. Sts. §§ 4197, 3116 (Comp. St. §§ 7789, 5828), and more clearly by the plain reason of the thing. A government wants to know, without being put to a search, what articles are brought into the country, and to make up its own mind not only what duties it will demand but whether it will allow the goods to enter at all. It would seem strange if it should except from the manifest demanded those things about which it has the greatest need to be informed—if in that one case it should take the chance of being able to find what it forbids to come in, without requiring the master to tell what he knows. It would seem doubly strange when at the same time it required any other person who had knowledge that the forbidden article was on the vessel to report the fact to the master. Act of January 17, 1914, c. 9, § 4, 38 Stat. 275, 276 (Comp. St. § 8801b). It is not an answer to say that if the master knows that he has contraband goods on board he is subject to a penalty for that and probably will lie. The law naturally, one would think, would put the screws on to make him tell the truth, and in that way diminish the chance of his carrying contraband and help him to show his innocence if he has made a mistake. Harford v. United States, 8 Cranch, 109, 3 L. Ed. 504. We are of opinion that this policy, which has been expressed in terms in later statutes (Act of May 26, 1922, c. 202, § 3, 42 Stat. 596, 598; Tariff Act of September 21, 1922, c. 356, §§ 401[c], 431, 584, 42 Stat. 858, 948, 950, 980), governs also in the statutes to be construed here. There is less contradiction between the requir ment of the manifest and the prohibition of the import than there is between such a prohibition and a tax. United States v. Remus, 260 U. S. 477, 43 Sup. Ct. 197, 67 L. Ed. ——, January 2, 1923.
It is argued that this is a definition; that 'capable of being imported' must be taken to mean capable of being imported lawfully as otherwise the phrase hardly would do more than exclude chattels real, and would want the poignant significance attributed to every word of legislation; and that therefore the merchandise to be included in the manifest does not embrace opium for smoking which the law has done all it can to exclude. Act of January 17, 1914, c. 9, 38 Stat. 275. Yet this very act of 1914 provides that whenever there shall be found upon a vessel arriving at any port of the United States opium 'or any preparations or derivatives thereof' 'which is not shown upon the vessel's manifest, as is provided by sections twenty-eight hundred and six and twenty-eight hundred and seven of the Revised Statutes, such vessel shall be liable for the penalty and forfeiture prescribed in section twenty-eight hundred and nine of the Revised Statutes.' Section 8 (Comp. St. § 8801f). We see no adequate reason for not taking these words in their natural sense as including smoking opium and as meaning that it must be included in the manifest, or for limiting them to forfeiture of the vessel. We rather should read them as showing that, at least for the future and at least so far as derivatives from opium are concerned, the language quoted from Rev. Sts. § 2766, was also to be taken in its natural sense as meaning physically capable of being imported.
The language under consideration was an insertion in the Revised Statutes. That volume was primarily a condification of the general statutes then in force and is not lightly to be read as making a change, although of course it may do so. The words on their face indicate rather an extension than a restriction. 'May include' seems to point to the removal of a doubt as to whether previously 'merchandise' might include all that is mentioned. It is a most unnatural way of saying that henceforth it shall not include something that otherwise might have been included. To give it the latter meaning we have again to read 'capable of being imported' in an artificial sense instead of taking the phrase simply for what it says to a plain mind. The only objection to reading it in the natural way is that it is thought to add nothing to what was contained in 'goods, wares and chattels of every description.' But there is no canon against making explicit what is implied and adding a little emphasis to the endeavors to make the proposition broad. The doubts that have been felt show that the endeavor was not very successful, but we believe that it was made. There can be little doubt that before the insertion of section 2766 goods that could not be imported lawfully were merchandise within the meaning of the statutes. It was held in Harford v. United States, 8 Cranch, 109, 3 L. Ed. 504, that the unlading of such goods without a permit was an offense subjection them to forfeiture, upon reasoning that applies to the requirement that they should be entered on the manifest, with equal force.
What we have said sufficiently disposes of the suggestion that the requirement was repealed by the opium act that we have cited. That is merely saying in another way that a manifest is not necessary for goods forbidden to enter the country. All that remains is the suggestion that smoking opium has no value. But assuming it to be established that the statutes require the manifest to disclose prohibited articles the penalty imposed implies that such articles may have value and oes not require the Courts to set up a technical rule in face of the plain truth. So the provision that smoking opium shall be forfeited implies that however evil it may be it has an owner. Act of January 17, 1914, c. 9, § 4, 38 Stat. 275; Act of May 26, 1922, c. 202, § 3, 42 Stat. 596, 598. In the circumstances we see no objection to taking the foreign value as evidence, in accordance with the rulings of the Treasury Department. Treas. Dec. No. 32083, December, 1911; 21 T. D. 687.


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WASHINGTON, D.C. — The U.S. Supreme Court handed down two Fourth Amendment rulings this week that impact privacy rights. In the first case, Byrd v. United States, a unanimous Court ruled that drivers of rental cars—whether or not they are explicitly named in the rental agreement—are generally entitled to the same reasonable expectations of privacy under the Fourth Amendment as the individual listed in the rental agreement. In the second case, Dahda v. United States of America, the Court ruled 8-0 that evidence obtained under orders that violate the nation’s federal wiretapping law can be used against a defendant in a criminal trial.
The Supreme Court’s opinions in Byrd v. U.S. and Dahda v. U.S. are available at www.rutherford.org. Attorneys Erin Glenn Busby and Lisa R. Eskow of Austin, Texas, and the University of Texas School of Law Supreme Court Clinic assisted The Rutherford Institute with the amicus curiae brief in Dahda v. U.S.
In Dahda v. U.S., federal agents, during the course of an investigation into suspected marijuana distribution, obtained a wiretap from a federal court in Kansas for Los and Roosevelt Dahda’s mobile phones in violation of the requirements of Title III of the Omnibus Crime Control Act of 1968, which prohibits wiretapping except in very limited circumstances and under strict supervision by judges. After the Dahdas were charged with federal drug offenses, they moved to suppress evidence obtained under the wiretap order. The Supreme Court’s ruling allows prosecutors to use evidence obtained by wiretapping phones even if it falls outside the court’s jurisdiction. In weighing in on Dahda,The Rutherford Institute had urged the high court to strictly enforce the letter of the law protecting the privacy of citizens and maintain core privacy protections enacted by Congress, especially as they pertain to the government’s ability to monitor Americans’ communications.

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Andrew has extensive experience of High Court litigation and regularly appears in both the Chancery Division and the Commercial Court. He also appears in the Court of Appeal and the Supreme Court. In addition, Andrew acts in commercial arbitrations and mediations, and has been involved in offshore litigation including in the Bahamas, the Cayman Islands, the BVI, Bermuda and Hong Kong.
Commercial Disputes: Andrew’s practice encompasses disputes of all kinds involving domestic and international businesses and property, including claims for breach of contract, warranty and misrepresentation claims, claims for rectification of contracts and other documents, claims in respect of licence agreements, share purchase agreements, joint venture agreements, franchise agreements, agency agreements and success fees, claims concerning title to real and personal property (including works of art), restitutionary and quantum meruit claims and claims for breach of confidence and breach of fiduciary duty.
Civil Fraud: Andrew has wide experience of claims in respect of fraud and dishonesty and related asset recovery and international enforcement, including obtaining or resisting freezing orders, proprietary claims involving the tracing and following of assets, claims involving bribes and secret profits, claims for dishonest assistance, knowing receipt and constructive trusts, claims for fraudulent misrepresentation and deceit, claims to set aside judgments for fraud, shams and piercing the corporate veil.
Banking and Financial Services: Andrew has a particular interest in cases related to banking and is regularly instructed on behalf of issuers, noteholders and trustees in relation to bond issues including sovereign debt and securitisations, covered bonds, collateral debt obligations and CMBS transactions; he has extensive experience of claims involving trading in derivatives of all kinds, including credit default swaps and synthetic CDOs, claims involving the interpretation of ISDA documentation, claims concerning private equity, mutual funds, hedge funds, REITs, venture capital and leveraged buy-outs, claims involving fixed and floating charges, debentures and other security interests and claims arising out of regulatory issues and financial services, including mis-selling claims.
Company and Partnership Disputes: Andrew acts in relation to shareholder disputes of all kinds, including unfair prejudice petitions and petitions to wind up companies on the just and equitable ground, derivative actions, claims for breach of fiduciary (and other) duties against directors, claims challenging decisions taken at board meetings and shareholders’ meetings and claims concerning vicarious liability for acts of employees and attribution of their acts and knowledge to the company. Andrew also acts in disputes between partners, including the taking of partnership accounts.
Insolvency and Restructuring: Andrew has been involved with claims by and against liquidators, receivers and administrators, claims concerning unlawful dividends, preferences, transactions at an undervalue, fraud on creditors, mutual set-off, priorities between creditors and cross-border insolvency issues.
Trusts: Andrew is experienced in contentious trust disputes in the UK and offshore, particularly in relation to breaches of duty by trustees, proprietary claims to trust assets and claims for knowing receipt and dishonest assistance.
Kazakhstan Kagazi v. Arip – Andrew was instructed for two defendants accused of defrauding the claimant companies of $160 million whilst under their control. Pre-trial, Andrew successfully appealed the refusal of permission to issue a contribution notice against the first defendant. The Court of Appeal held that a freezing order could be made in support of the contribution claim (the first Court of Appeal decision on the point):  EWCA Civ 1036;  1 W.L.R. 1360. Picken J heard the main trial over 13 weeks between April and July 2017 and a lengthy judgment dealing with a wide range of issues was handed down in December 2017:  EWHC 3374 (Comm).
Blue Power Group v. ENI Norge AS – Andrew is instructed for the claimant in an ongoing claim for up to €1 billion in the Chancery Division, involving allegations of breach of exclusivity, best endeavours and confidentiality clauses in various agreements relating to the potential use of the claimant’s Compressed Natural Gas technology in the Goliat oil field off the Norwegian coast, operated by the defendant.
Wood v. Sureterm Direct – Andrew was instructed for the claimant in this Commercial Court action arising out of a sale of an insurance business. Andrew successfully argued a preliminary issue concerning the construction of an indemnity in relation to alleged mis-selling of policies. He appeared at first instance, in the Court of Appeal and in the Supreme Court. Lord Hodge’s judgment is the latest in a line of cases at this level dealing with the construction of commercial contracts and helpfully reconciles some of the earlier authorities:  UKSC 24;  2 W.L.R. 1095.
Campbell v. Campbell – Andrew acts for the defendant in this claim concerning a worldwide partnership between two brothers who, for many years, ran various jewellery businesses through entities in the UK, Thailand, Hong Kong and New York:  EWHC 182 (Ch). A partnership winding-up process is now ongoing. Andrew successfully resisted an appeal concerning whether costs of a foreign lawyer were recoverable:  EWCA Civ 80 (Costs appeal).
Ong v. Ping – Andrew is instructed for the claimants and obtained an order setting aside a number of earlier judgments of the High Court, which were held to have been obtained by fraud:  EWHC 1742 (Ch). In November 2017 Andrew successfully resisted an appeal of the Judge’s decision establishing that a settlor had declared a trust of real property, despite the absence of words identifying the property in the instrument:  EWCA Civ 2069. The judgement considers the correct approach to determining whether a settlor has effectively declared herself a trustee.
Re FSC Andrews Ltd. – Andrew succeeded in striking out an unfair prejudice petition on the grounds that it was bound to fail and was an abuse of process:  EWHC 4042 (Ch). The matter was compromised.
BTG International Ltd. v. Genzyme Corporation – Andrew was instructed for the Claimant in this Commercial Court action concerning royalties payable pursuant to an agreement licensing the worldwide production and sale of pharmaceuticals under certain patents.
Re BW Ltd. – Andrew was instructed for two companies forming part of an investment structured by Investcorp Bank BSC. An investor issued petitions for the winding up of the companies on the just and equitable ground. The matter settled shortly before the trial, which was listed in August 2015 before Justice Jones in the Cayman Islands.
Edmond de Rothschild Securities (UK) Ltd v. Exillon Energy plc – Andrew was instructed on behalf of the claimant, which brought proceedings in the Commercial Court for payment of a success fee under terms of an engagement letter. Summary judgment was granted to the claimant by Males J in July 2014:  EWHC 2165 (Comm).
Day v. Harris & Day v. Royal College of Music – Andrew was instructed in relation to two appeals to the Court of Appeal heard in January 2013 concerning the estate of the late Sir Malcolm Arnold, the well-known musician and composer. Amongst the issues arising was the question of title to a large number of manuscripts of Sir Malcolm’s works which are currently held by the Royal College of Music:  Ch. 211.
Benedetti v. Sawiris – Andrew was instructed to represent the Claimant in this long running litigation concerning the acquisition of a leading Italian telecommunications company, which was the largest leveraged buy-out in Europe in 2005. The Supreme Court’s decision is the first time the application of restitutionary principles to quantum meruit claims has been considered at the highest level:  AC 938.
Independent Trustee Services Limited v. Morris – Andrew was instructed on behalf of the respondent wife, whose ex-husband had paid off an ancillary relief award with money which later turned out to have been stolen from a pension fund. The Court of Appeal held that the fund was entitled to trace the stolen money into the wife’s assets, despite her innocence of any wrongdoing:  Ch. 91.
Arab Banking Corporation v. Ahmad Hamad Algosaibi & Brothers – Andrew was instructed for two of the Claimant banks in a Commercial Court action seeking repayment under various facilities. The Defendants admitted liability part way through the trial and Andrew was subsequently involved in seeking enforcement, including the determination of priorities amongst parties seeking charging orders:  EWHC 2444 (Comm).
CPC Group Ltd. v. Qatari Diar Real Estate Investment Company – Andrew was instructed on behalf of the Defendant in this high profile action in the Chancery Division concerning the withdrawal of an application for planning permission in relation to the development of the Chelsea Barracks site following comments made by HRH the Prince of Wales. The Court’s judgment includes some consideration of the law as to the effect of clauses requiring mutual good faith and the use of all reasonable endeavours:  EWHC 1535 (Ch).
MAN v Freightliner v. Ernst & Young – Andrew acted for the Defendant in this high-profile trial in the Commercial Court, involving commercial fraud and auditors’ negligence:  EWHC 2347 (Comm). He also acted on the appeal to the Court of Appeal:  2 BCLC 22.
Black v. Sumitomo – remains a leading case in relation to pre-action disclosure:  1 WLR 1562.
"A very good strategist with very good judgement." "He is persuasive and forceful on his feet and very accessible and easy to deal with."
"Very clever and an excellent tactician."
"Extremely clever, very good at drafting and a sound tactician. His advocacy really stands out, and he has a very comfortable court manner." "A particularly good appeal advocate who is attentively listened to by judges."
"His advocacy really stands out and he has a very comfortable court manner." "Technically brilliant and shows great attention to detail."
"He is very thorough and his drafting is impeccable since he really gets his head around all the issues." "He is technically brilliant and has great attention to detail."
"He's very thorough and his drafting's impeccable. He really gets his head round all the issues and gets stuck in."
"Clever, persuasive and supportive." "He's practical, user-friendly, very meticulous and hard-working."
"He is a pleasure to come up against because he is extremely straightforward. He is extremely good."
"He is most impressive - very thoughtful and strategic."
"A fantastic resource. He reduces complex matters to their basic elements."
"Picks up the key points in a case quickly and delivers excellent advice in conference."
"Very accessible and responsive with a good courtroom style of advocacy."
“Is very bright, very user-friendly and very down to earth. He provides the client with complete confidence."

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The Federal District Court for the District of Columbia in National Mining Association v. Jackson, D.D.C., No. 1:10-cv-1220, 10/6/11 (NMA v. Jackson) as just so held. Judge Walton overturned a current 404 permitting process, holding that the EPA has exceeded its CWA statutory authority. The EPA’s current CWA agenda includes a number of controversial efforts, several of which are implicated by Judge Walton’s ruling. This article is limited to the holding in NMA v. Jackson.
The U.S. Army Corps of Engineers is the sole permitting authority under Section 404. “The Secretary may issue permits, after notice and the opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” Section 404(a). And Section 404(d) makes it clear that “Secretary” means the Secretary of the Army, acting through the Chief of Engineers. The EPA does have several roles under Section 404, NOT including actually issuing dredge and fill permits. Congress identified three principle roles for the EPA under Section 404, all supporting the Corps: 1) to work with the Corps to promulgate guidelines for selection of disposal sites under Section 404(b)(1); 2) to veto individual permits for disposal under Section 404(c); and 3) to coordinate 404 permit application reviews with other identified federal agencies to minimize duplication and delays in permit issuance under Section 404(q).
At issue in NMA v. Jackson was whether application by the Corps and the EPA of certain “enhanced coordination” requirements for mountaintop coal mining 404 permit applications exceeded the EPA’s statutory authority and whether use of these procedures without notice and comment violated the Administrative Procedures Act. Specifically, the NMA sued multiple federal defendants over the EPA’s June 11, 2009, Enhanced Coordination (EC) Process, including the Multi-Criteria Resource (MCIR) Assessment.
The Court denied the NMA’s motion for a preliminary injunction and the federal defendants’ motion to dismiss. NMA v. Jackson, 768 F. Supp. 2d 34, 56 (D.D.C. 2011). Four cases pending in U.S. District Courts in West Virginia and Kentucky were then transferred to the District of Columbia District Court and consolidated with NMA v. Jackson. The Court approved a bifurcated briefing schedule, addressing the MCIR Assessment and EC Process first.
Under the EC Process, the EPA targeted 79 then-pending permits for surface coal mines. While many companies gave up and withdrew their permits, the majority has simply stalled—only eight of 79 had been issued as of July 2011. The EC Process was initiated by the June 11, 2009, “Memorandum of Understanding on Implementing the Interagency Plan on Appalachian Surface Coal Mining,” between the EPA, the Corps and the Department of the Interior (“June 2009 MOU”).
The ostensible purpose of the June 2011 MOU was to enhance environmental review coordination between the agencies for pending Section 404 permit applications for Appalachian surface coal mining activities. Concurrently, the agencies issued memoranda clarifying the EC Process would be a two-step process beginning with the EPA’s MCIR Assessment, followed by separate coordination between the Corps and the EPA. During the MCIR Assessment, the EPA directed the Corps which permits would go through the EC Process and the EPA selected the criteria to be applied in the MCIR Assessment—the Corps was not involved.
The Court concluded that neither the EC Process nor the MCIR Assessment were procedural rules. “[I]n the absence of the June 11, 2009, MOU and the letters written the same day, ‘there would not be an adequate legislative basis for’ the EPA to conduct the MCIR Assessment or subject the pending permit applications to the additional scrutiny of the EC Process…the MCIR Assessment and the EC Process ‘effectively amend’ the Section 404 permitting process…compel[ling] a finding that the MCIR Assessment and the EC Process are legislative rules.” Citations omitted. Accordingly, notice and comment was required before their implementation.
As noted at the outset of this article, the EPA has other issues pending, including guidance requiring conductivity analysis, which the EPA contends will show increased stream mineralization from mountaintop mining practices. The NMA challenged the conductivity guidance in this case, but it is subject to a later briefing schedule and likely to be resolved in the spring of 2012. NMA v. Jackson may also have implications for the CWA jurisdictional guidance I addressed in the August 2011 issue.
McIntosh is a partner with Patton Boggs LLP. She can be reached at 303-894-6127 or by e-mail at cmcintosh@pattonboggs.com.
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