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I was 17 years old when I first heard the word UCLan. I was told by an Astrophysicist, friend of my father, that British universities were quite good. Moreover, since the language of Science is nowadays English I said to myself “why not trying?”.
The truth was that I had no clue what to expect nor I really knew where Preston was.
I then left Paris to go to Preston and for four years people kept asking me: “why did you come to Preston?” I have only found an answer to this question at the end of this special experience, after my fourth year.
For those who do not know it, France is a very elitist country. Only those who excel can stay in the system, otherwise you get kicked out. In the UK this is totally different: England is the country that gives an opportunity to everyone and allows people to improve and discover what they are good at.
My uncle used to say “students are like a bunch of grapes: some grapes mature more quickly than others, but at the end of the day all of them are good to make wine”.
To some extent I was a slow grape, which eventually matured.
Professors at UCLan were all very kind and gentle with all the students. They would always ask whether we were happy or not about the course and they would also be ready to discuss about our personal issues if needed. This was a total change for me.
My first interest was actually astrophysics, even though I decided to follow the course of Physics instead of the one in Astrophysics, that was also offered by the university. I actually believed (and still believe) that a general preparation would have been better, rather than to specialize since the start.
During the first year I had to face the cultural and language barrier, as well as learning how to live alone abroad for the first time in my life. In the end it wasn’t as hard as many people say it is.
Nevertheless it took me some time to adapt and to learn how to express myself clearly at a university level. I still remember my very first uni exam, which was about mechanics, as there was an exercise which involved lots of calculations about forces due to objects in motion on a vessel. The problem was that I was not familiar with all the terminology used to describe the different parts of a ship and unfortunately it had a bad impact on the mark I obtained in the end. Luckily my second exam, which was on electromagnetism, was a lot better, as I managed to get the second best mark in the class.
When I got the exam back, I remember Prof. A. V. Zvelindovsky complimenting me for the solution I gave in one of the exercises, which involved the application of Kirchhoff’s law. Apparently it wasn’t an easy one. I think that this was a key moment of my uni life: I felt somehow an admiration for this professor who appreciated the outcome of my work.
During my second year I did a small project with Dr. Daniel Brown. The rest of the students did an experimental project, while I had the chance to do a theoretical one, which involved lots of hand written calculations and finally the numerical solution of a differential equation, which was used as a simple model to describe the Earth climate. I wrote this program in C, which back then seemed so difficult, using a Runge-Kutta method of fourth order. I could then see how the heat of the planet might change in order to freeze or unfreeze completely our beloved Earth, changing simply a few input parameters.
This was the moment where I understood that theoretical and computational physics were my fields of interest. I used to hate all the lab sessions.
It was along my third year that I started building some interest in Nanoscience and Nanotechnologies in general. We were supposed to write a small dissertation in a group, choosing from a list of topics. Depending on the topic, a lecturer would have helped us to conduct our work. However, since I really wanted to work with Prof. A. V. Zvelindovsky, I remember pushing all the people in my group to suggest to Dr. B. Hassal a new topic which would have involved Nanoscience, a field in which Prof. A. V. Zvelindovsky is an expert. At the end of that year I asked Prof. A. V. Zvelindovsky if I could do my final year project with him, but unfortunately he replied that he wouldn’t be able to supervise me as he was going to take a sabbatical year. Nevertheless he said that he could follow my work if I accepted to work with Dr. M. Pinna, which I then did.
The most amazing experience I had in Physics was during my fourth year. In the first semester I discovered theoretical fluid dynamics thanks to Prof. A. V. Zvelindovsky. He taught me how to solve complex theoretical problems using a very mathematical approach. We were using the well-known book written by Landau and Lifshitz on Fuid Mechanics. I felt like I was living again: I always wanted to study Physics because of the elegance that nature has. Sometimes, along the previous year, I felt that elegance was a bit forgotten, as we were focusing on the main results in order to produce the desired experiments, without actually thinking about how we got such results and what we can do with them. The Russian approach of Landau is totally different. I would then carry out pertinent results, in accordance with the experimental ones, with the simple use of a pen, a paper and beautiful mathematical tools. This became my apparatus, which I believe it is the most beautiful one.
Dr. M. Pinna had prepared a project to work on, during the second semester, which involved the use of GROMACS, which is a molecular dynamics package designed for biomolecular systems. However, for some reason, Prof. A. V. Zvelindovsky thought that I could do more than that, and decided that I could carry on the work that Dr. M. Pinna had started during his PhD. I then had to modify the original code that he wrote, in order to carry out simulations of a diblock copolymer with colloidal particles with two different distinct sizes. By doing this, I also had the opportunity to work on this project with Prof. I. Pagonabarraga, in the Universitat de Barcelona. Apart from the fact that I had the chance to work on an extremely interesting topic, as a real researcher, this experience helped me to develop a lot of skills, which are fundamental for whoever is interested in doing research, as well as building more self-confidence. On top of that, I learnt a lot from Dr. M. Pinna and built a very strong bond with him and Prof. A. V. Zvelindovsky, who became something more than merely professors to my eyes.
Therefore they helped me to realise that my initial interest has changed. I have much clearer ideas about my future and I am now doing a MSc in Applied Mathematics at the University of Bath, hoping to do a PhD in Theoretical Physics next year. Overall UCLan was certainly an amazing experience, which made me meet wonderful people, helped me to grow a lot and become an adult person capable to handle this exciting yet complicated world we live in.
Reblogged this on Computational Physics Group.

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Late last week, Protect Democracy filed an amicus brief in a New York state court in New York v. Trump, countering Mr. Trump’s argument that because he is President he cannot be sued in state court. The brief was filed on behalf of three constitutional law professors who filed a similar brief earlier this year in Zervos v. Trump. These were also the same law professors who filed a brief twenty years ago in Clinton v. Jones. The brief argues that the office of the Presidency does not place a person above the law, and therefore the same legal framework that the Supreme Court applied to President Clinton in 1998 should also apply to President Trump today.
The NYS Attorney General’s Office is suing President Trump and the Trump Foundation for violating New York charities law. Mr. Trump sought to dismiss the case, claiming that because he is President he cannot be sued in a state court — even if he’s being sued for conduct that took place before he was President and that has no connection to his official duties. In Zervos v. Trump, the trial court rejected the President’s claim to above the law and agreed that he can be sued in state court. We expect the same outcome here.
The professors signing onto the brief are Stephen B. Burbank, Richard D. Parker, and Lucas A. Powe Jr. Professor Richard Primus was co-counsel on the brief with Aditi Juneja and Ian Bassin of Protect Democracy.
Since he took office, President Trump and his lawyers have repeatedly claimed that he is above the law. Whether claiming he has the absolute right to do what he wants with the Justice Department; that he can ignore laws prohibiting conspiracy with foreign powers to influence an election; or that he can avoid accountability for his conduct because of the office he holds, the President all too often claims to be beyond the reach of the law.
As Protect Democracy argued to the court on behalf of the same constitutional experts who made this point twenty years ago in Clinton v. Jones, ‘No one in our nation is above the law, not even the President.’ The court agreed with us in Zervos v. Trump and we fully expect that they will do so again.
No one in our nation is above the law. In Jones, the Supreme Court unanimously held that sitting Presidents are not immune from civil lawsuits in federal court for their unofficial acts. There is no reason grounded in Supreme Court precedent, the Constitution, public policy, or logic to reach a different conclusion with respect to suits brought in state courts against sitting Presidents based on their unofficial conduct.
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.” United States v. Lee, 106 U.S. 196, 220 (1882). To be sure, the President is entitled to immunity for his official acts. See Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982). But with respect to wrongful conduct outside of his official duties, the President is subject to suit like any other person.
To immunize the President in all cases, including cases having nothing to do with the President’s official duties, would be to attach Presidential immunity not to the federal office but to a person. That would violate the principle that ours is “a government of laws and not of men.” Cooper v. Aaron, 358 U.S. 1, 23 (1958) (quoting Massachusetts Declaration of Rights, pt. 1, art. 30 (1780)).
[President Trump] has identified no instance in which either President George W. Bush or President Barack Obama was required to spend time dealing with a lawsuit in a private capacity during their combined sixteen years of service. There is accordingly no factual basis for thinking that Presidents will often be civilly sued unless immunized, and courts should not make bad constitutional law for generations simply because of the exceptional circumstances created by one President’s pre-office conduct.

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The Consortium thanks graduating law students Maryam Rangwala and Golzar Ansari for their work and dedication to this project.
The history of case law which upholds mandatory vaccinations as a condition to attending school dates back to the early 20th century. In Jacobson v. Massachusetts, the Supreme Court held that “the police power of a State embraces such reasonable regulations...as will protect the public health and safety,” (197, U.S.11, 1905). The ruling was upheld in Zucht v. King et. al., where the Supreme Court reasserted that it is within the police power of state to have compulsory vaccination laws, and applied that insight to school immunization requirements. (43, S.Ct. 24, 1922). Ever since, every court, has upheld mandatory immunizations for schools. For example, in Brown v. Stone, the Supreme Court of Mississippi, held that a statute requiring immunization against certain crippling and deadly diseases before a child could be admitted to school, served a compelling state interest, (378 So. 2d 218, 1979). In 1944, in Prince v. Massachusetts, the Court added that parental rights are not absolute. The Court stated, “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children”.
Beginning in 1971, courts examined religious exemptions from mandatory vaccination for those with sincerely held religious beliefs. In Dalli v. Board of Education, the court held that religious exemptions were allowed if there was no outbreak, and that restricting religious exemptions to “tenets and practice of a recognized church or religious denomination” was a violation of the Equal Protection Clause, (358 Mass. 753, 1971). In Sherr v. Northport-East Northport Union Free School District, the court held that only parents whose opposition to vaccines was based on sincerely held religious beliefs were entitled to exemption. However, the court also modified this by ruling that limiting religious exemptions to “bonafide members of a recognized religious organization” violated the First Amendment. The court argued that “there is no compelling societal interest that might justify the burden placed upon the free religious exercise of certain individuals while others remain free to avoid subjecting their children to a religiously objectionable medical technique merely because they may belong to a particular religious organization to which the state has given a stamp of approval,” (672 F.Supp. 81, 1987). This was reiterated in McCarthy v. Boozman, where the court struck down an Arkansas state law which granted a denominational preference for religious exemptions on the grounds that it was unconstitutional unless it served a compelling state interest, (212 F.Supp.2d 945, 2002).
However, what constituted a sincerely held religious belief was debated. In Mason v. General Brown Central School District, the parents tried to obtain a religious exemption by arguing that they lived in a “natural order” and that interference with natural physical and neurological process diminished the physical and mental capacity and that this rises to the level of a sincerely held religious belief as advocated by the Universal Life Church (851 F.2d 47). However, the court denied their exemption arguing that this rises to scientific or philosophical belief, rather than a religious belief. Essentially, the court held that lifestyle choices do not rise to the level of religion. On the other hand, in Lewis v. Sobol, the parents obtained a religious exemption for their daughter. In this case, the parents’ religious belief did not oppose vaccination per se, but held that medicine should only be used when physical symptoms exist that manifest an unbalanced spirit, (710 F.Supp. 506, 1989). The court held that their developed views of a creator and individual spiritual perfection are fairly categorized as religion.
Many parents have also been concerned with the constitutionality of excluding children from school on the basis of non-vaccination. In Phillips v. City of New York, the parents argued that state regulation excluding their unvaccinated child from attending schools is unconstitutional, (775, F.3d 538). However, the court stated that it is within the “permissible exercise of the State’s police power”, thus rendering mandates constitutional. This is similar to the holding discussed in Brown, where the court held that protecting children at school against crippling and deadly diseases served a compelling state interest and that the interest of school children prevailed against the religious beliefs of their parents.
The influenza vaccine, mandated for all employees in many hospitals, has generated some resistance from employees who seek personal or religious exemptions from this requirement. The federal courts have varied in their response to these complaints. On the one hand, under federal law - Title VII of the Civil Rights Act of 1964 - employers are required “to provide reasonable accommodations for sincerely held employee religious beliefs, even if some of those beliefs are idiosyncratic.” Contrastingly, however, the public health and safety rationale that hospitals use to justify vaccine mandates are often upheld, unless the plaintiff can show a policy of discrimination.
The court has affirmed summary judgment for the hospital in the interest of protecting public health and safety. For example, in Robinson v. Children’s Hospital Boston, the District Court of Massachusetts granted the Hospital’s motion for summary judgment because the hospital had, according to the statute at issue, reasonably accommodated the plaintiff prior to terminating her employment. The court’s holding stated that “any accommodation would have been an undue hardship” and “no reasonable jury could find that plaintiff had a bona fide religious belief that precluded vaccination” casting doubt upon the merits of plaintiff’s argument. Similarly, in Seiu v. Los Robles Regional Medical Center, the Court declined to grant plaintiff-union an injunction denying hospital-defendant from implementing a stricter vaccine policy because the public health rationale outweighed the stigma that employees who were not vaccinated may face by wearing different badges and masks that made their unvaccinated status clear to the public and other hospital staff.
Contrastingly, the Court grants plaintiff relief if plaintiff can prove the hospital’s policy regarding vaccines was discriminatory. For example, in EEOC v. Saint Vincent Health Center, the U.S. District Court for the Western District of Pennsylvania, upheld a settlement agreement between the parties where the hospital agreed to pay $300k to each plaintiff-employee because the hospital’s policy was held to be discriminatory against employees seeking religious exemptions; notably, the hospital granted fourteen medical exemptions to employees, but unilaterally denied all applications for religious exemptions.
After the Dalli ruling that states cannot limit religions to “tenets and practice of a recognized church or religious denomination”, other states started to rule on religious exemptions as well. In 1979, in Brown v. Stone, the Supreme Court of Mississippi held that a state statute requiring immunization of children against crippling and deadly diseases before attending school, served a compelling public interest, that the statute was a reasonable exercise of police power, and the holding removed religious exemptions completely, (378 So.2d 218, 1979). On the other hand, in 2007, Diana H. v. Rubin, the Arizona Court of Appeals held that the Department of Economic Security failed to articulate a compelling reason to vaccinate a dependent nine-month old baby taken out of her home against the mother’s religious objections and that parents have a right to the religious upbringing of their child, [171 P.3d 200 (Ariz. Ct. App., 2007)].
However, in 2014, the court in Arlene L. v. Dept of Child Safety, did authorize vaccination of a child over the mother’s opposition, based on her personal and religious beliefs. In this particular case, the child was not a dependent of the mother, but in foster care and when the state assumed legal custody of a dependent child, it assumes “the responsibility to provide the child with adequate food, clothing, shelter, education, and medical care.” The court ruled that it did have a compelling interest in vaccinating the child as it would have a broad public impact beyond the case. This holding was also applied to the case of In re Zs in Maine in 2015, where the child was in state custody as well, (121 A.3d 1286, 2015). In all these cases, mandates were not seen to justify not vaccinating a child in the state’s care.
Similarly, the state’s interest in protecting the health and welfare of its citizens can also outweigh religious exemptions in some cases. For example, in Douglas County v. Anaya, the Supreme Court of Nebraska held that the state’s interest in the health and welfare of children born in the state satisfied the rational basis test and outweighed the parents’ religious objections to screening infants for metabolic diseases. In Calandra v. State College Area School District, the Commonwealth Court of Pennsylvania held that the school’s policy to require a tetanus immunization for all students seeking to participate in interscholastic sports did not place an impermissible burden upon students who were opposed to vaccines due to their religious beliefs. The court reasoned that participation in interscholastic sports was discretionary and the state could regulate the health of the student-players by requiring vaccinations.
In New York, child-students may seek religious exemptions from mandatory vaccinations without their parents. In Bowden v. Iona Grammar School, the New York State Supreme Court held that a religious exemption applied to private and parochial schools and a child-student could assert proceedings against her school to enforce a religious exemption. The court reasoned that the first amendment protects the child’s exercise of a religious exemption and issued a preliminary injunction for the child. In Maier v. School District, the New York Supreme Court held that a child can seek an exemption from immunization requirements if the parent has a genuine and sincere religious belief which she actively practices that are substantially similar to the tenets of the Christian Scientist faith. The Court agreed with the father’s argument that it was unconstitutional to force his family to join an organized religious body in order to practice their religious beliefs without government overreach.
States can require a show that a religious belief is sincere, but they need to do so in law. For example, in New York, the law require sincerity, and extensive jurisprudence focuses on whether beliefs are sincere or not. In Brown v. City School District of the City of Corning, the New York Court held that plaintiff had sincere religious beliefs because he could show that, for the past several years, members of his family were not given a vaccination. In McCartney v. Austin, the New York State Court held that religious exemption was properly denied because the parents seeking an exemption were doing so based on personal beliefs, not for a religious proscription by the Roman Catholic Church. However, absent statutory mandate, officials cannot examine sincerity - for example, in LePage v. Department of Health, the Supreme Court of Wyoming held that the State Department of Health exceeded its statutory authority by inquiring into sincerity of mother’s religious beliefs when she was seeking a religious exemption for her child. The court ruled in favor of the parent because the Department of Health could not prove that they received a high number of applications from individuals seeking religious exemptions insincerely, and hence, did not have a compelling reason to go beyond its explicit statutory authority.
In one unusual case, a court addressing a hospital influenza mandate extended religious exemptions to cover personal beliefs. In Valent v. Department of Labor, the Superior Court of New Jersey held that employer’s flu vaccination policy violated claimant’s freedom of expression because the policy only permitted employees with religious exemptions to refuse vaccinations, but it did not permit employees to refuse vaccinations for non-religious reasons. This decision was unusual, and likely not representative.
To download a pdf of this memorandum, click here.

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518 F.3d 645 (9th Cir. 2008), 06-35383, Certain Underwriters at Lloyds, London v. Inlet Fisheries Inc.
Party Name: CERTAIN UNDERWRITERS AT LLOYDS, LONDON, Plaintiff-Appellee, v. INLET FISHERIES INCORPORATED; Inlet Fish Producers Incorporated, Defendants-Appellants, v. Totem Agencies Incorporated; American E & S Insurance Brokers California Incorporated, Third-party-defendants-Appellees.
Totem Agencies Incorporated; American E & S Insurance Brokers California Incorporated, Third-party-defendants-Appellees.
Argued and Submitted Dec. 5, 2007.
John A. Treptow, Dorsey & Whitney LLP, Anchorage, AK, for the defendant-appellants.
Christopher W. Nicoll and Larry E. Altenbrun, Nicoll Black & Feig PLLC, Seattle, WA, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Alaska; John W. Sedwick, District Judge, Presiding. D.C. No. CV-04-00058-JWS.
Before: M. MARGARET McKEOWN and RICHARD R. CLIFTON, Circuit Judges, and WILLIAM W SCHWARZER, [*] District Judge.
This case involves the interplay between an ancient legal doctrine and contemporary vessel pollution insurance. Historically, all insurance policies were contracts uberrimae fidei, meaning that both parties were held to the highest standard of good faith in the transaction. The doctrine of uberrimae fidei was grounded both in morality and efficiency; insureds were considered morally obligated to disclose all information material to the risk the insurer was asked to shoulder, but such a principle was also an economic necessity where insurers had no reasonable means of obtaining this information efficiently, without the ubiquity of telephones, email, digital photography, and air travel. See, e.g., Stecker v. Am. Home Fire Assurance Co., 299 N.Y. 1, 84 N.E.2d 797, 799 (1949) ("The reasons which brought into being the strict marine insurance law doctrine as to disclosures, go far back into the early days of marine insurance, when sailing ships in faraway seas were insured in London by underwriters who could get no information except from the shipowners."); McLanahan v. Universal Ins. Co., 26 U.S. 170, 176, 1 Pet. 170, 7 L.Ed. 98 (1828) ("The contract of insurance, is one of mutual good faith; and the principles which govern it, are those of an enlightened moral policy."). Today, uberrimae fidei has been displaced in most insurance contexts. Nevertheless, the doctrine enjoys continuing vitality in the world of marine insurance.
Although maritime insurance has its roots in pre-Roman times, its modern incarnation can be traced to a sixteenth-century coffee shop. The mariners who gathered there became tired of individually shouldering the plethora of risks inherent in their trade, and decided to band together to share those risks. The coffee shop was owned by the eponymous Edward Lloyd. Out of the coffee shop conversation grew the development of the modern marine insurance market, with Lloyd's of London at its helm. THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 17-1 (4th ed. 2004) (Hornbook Series) ("SCHOENBAUM").
Lloyd's of London became a force not only in the traditional maritime insurance industry but also in emerging and specialized marine insurance markets. With the advent of significant environmental legislation in the 1970s, coupled with a number of high profile disasters involving oil tankers, liability of shipowners for environmental damages was expanded, culminating, at the federal level, with the Oil Pollution Act of 1990 ("the OPA"). SCHOENBAUM§ 16-2. The "OPA increase[d] substantially both the regulation and pollution liabilities of entities engaged in the transportation and production of oil within the . . . United States." Id. "[I]n part because of the enactment of the [OPA]," "[p]ollution insurance, which traditionally had been part of P&I coverage, has emerged as a separate coverage in the United States." ADMIRALTY & MARITIME LAW 185, 187, Federal Judicial Center (2004). This stand-alone pollution coverage is often referred to as 'vessel pollution insurance,' and Lloyd's of London is currently the second-largest provider of such policies. The question we consider is whether the doctrine of uberrimae fidei applies to vessel pollution insurance policies covering statutory environmental liabilities. We answer that query in the affirmative, and affirm the district court's grant of summary judgment in favor of the Lloyds' underwriters.
Inlet Fisheries, Inc. and Inlet Fish Producers, Inc. (together "Inlet") are Alaska-based fish buying and processing businesses, both owned by Vincent Goddard. Inlet owns a number of vessels, including the YUKON II, FORT YUKON, MAREN I, HARVESTER BARGE ("HB"), and the QANIRTUUQ PRINCESS ("QP").
The underwriters that are parties to this case are those syndicates at Lloyd's of London that agreed to underwrite a stand-alone pollution insurance policy issued to Inlet in August 2000.1 For convenience, we refer to both these under-writers and Lloyd's of London as simply "Lloyds."
In August of 2000, Water Quality Insurance Syndicate ("WQIS"), Inlet's then-provider of stand-alone vessel pollution insurance, sent notice that it was cancelling Inlet's policy. The stated and most immediate reasons for the cancellation were Inlet's failures to conduct a survey of its vessels as requested by WQIS and to pay its premiums. WQIS's request for a survey arose after the MAREN I, a vessel owned by Inlet and insured by WQIS, hit a sandbar in Steamboat Slough in Alaska and sank, with 3000 gallons of diesel oil on board. The same vessel had been involved in a "pollution incident" the week before, and the QP, another vessel owned by Inlet, was at the time reportedly listing at the city dock "with the potential of turning turtle."
The day after WQIS sent notice of the cancellation, another of Inlet's vessels, the HB, spilled approximately 55 gallons of oil at the city pier in Bethel, Alaska. Because that oil came originally from the MAREN I, Inlet included the cost of cleaning up this spill in its claim to WQIS for the sinking of the MAREN I.
Inlet provided on this application forms the basis of the current dispute. In the space calling for Inlet's current pollution insurance carrier, Inlet put "Water Quality Ins. Syndicate." In response to a request for "pollution loss history," Inlet wrote "None." Inlet did not supply, and the application did not request, information about the condition of Inlet's vessels, Inlet's financial status, or the fact of, or reason for, WQIS's cancellation of Inlet's previous policy.
In August 2002, one of Inlet's vessels, the QP, spilled oil and pollutants when it sank in Steamboat Slough, near Bethel, Alaska. After salvage attempts were unsuccessful, the vessel was eventually towed out to sea and scuttled. Inlet made a claim to Lloyds under its vessel pollution policy, at which point Lloyds commenced an investigation into both that incident and Inlet generally.
Upon learning additional information about Inlet, including its failure to disclose the MAREN I and HB incidents, the poor condition of its vessels, and its pending bankruptcy, and after Inlet refused to cooperate with Lloyds' investigation, Lloyds filed suit seeking a declaratory judgment that it had the right to void the policy ab initio under the doctrine of uberrimae fidei. Inlet counterclaimed and argued that Alaska state law, rather than federal maritime law, applied, and that Lloyds never asked for the allegedly material information. On cross-motions for summary judgment, the district court granted Lloyds' motion, and ruled that uberrimae fidei applied and that Lloyds was entitled to void the policy.
The doctrine of uberrimae fidei imposes a duty of utmost good faith, SCHOENBAUM § 17-14, and "requires that an insured fully and voluntarily disclose to the insurer all facts material to a calculation of the insurance risk." HIH Marine Servs., Inc. v. Fraser, 211 F.3d 1359, 1362 (11th Cir. 2000). Whether the doctrine applies here is particularly important, because Lloyds claims that Inlet failed to disclose material information, and Inlet argues that Lloyds never asked for the information it now regards as material. Under uberrimae fidei, however, Inlet would have been obligated to disclose all material information, regardless of a request by Lloyds. SCHOENBAUM § 17-14.
The application of the doctrine can have dramatic consequences. For example, in Cohen, Friedlander & Martin Co. v. Massachusetts Mutual Life Insurance Co., 166 F.2d 63 (6th Cir. 1948), the court held a life insurance policy void under the doctrine of uberrimae fidei because the insured failed to disclose two heart attacks that occurred between the date of his application and the effective date of the policy. Id. at 66. The court reasoned that even though the representations in the application were correct when it was submitted, uberrimae fidei required the insured to disclose any material facts of which he became aware before the policy became effective. Id.


In the United States Court of Appeals For the Seventh Circuit ____________________ No. 18 1753 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TRAVIS S. VACCARO, Defendant Appellant. ____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 17 CR 84 JPS — J.P. Stadtmueller, Judge. ____________________ ARGUED DECEMBER 11, 2018 — DECIDED FEBRUARY 7, 2019 ____________________ Before WOOD, Chief Judge, and RIPPLE, and BARRETT, Circuit Judges. BARRETT, Circuit Judge. Travis Vaccaro entered a condi tional guilty plea to possessing a firearm as a felon, 18 U.S.C. § 922(g), preserving his right to appeal the denial of his mo tion to suppress the gun. Vaccaro contests both the pat down search that occurred seconds after police o cers pulled over his car and the search of the car that yielded the gun. The pat down was lawful under Terry v. Ohio, 392 U.S. 1 (1968). The 2 No. 18 1753 sweep of the car, which the district court upheld under Mich igan v. Long, 463 U.S. 1032 (1983), is a closer call, but we con clude that it too was permissible. Accordingly, we a rm. Our summary of the facts is taken from an evidentiary hearing on Vaccaro’s motion to suppress. Milwaukee police o cers Aaron Frantal and Matthew Tracy stopped Vaccaro for running a red light. O cer Frantal testified that Vaccaro stopped his car and made a “very ferocious move” by “bend ing at the waist.” Vaccaro then leaned toward the passenger seat and “made another aggressive move with his entire top torso and both arms into the back seat of the vehicle.” O cer Tracy added that he saw Vaccaro “double over bending at the waist” and then reach toward the passenger side of the car. O cer Frantal testified that Vaccaro’s movements took under five seconds. Afraid that Vaccaro might be trying to “gain con trol of something from the back seat,” O cer Frantal drew his gun and ordered Vaccaro out of his car. The o cers immedi ately handcu ed Vaccaro, and O cer Frantal patted him down. Meanwhile, O cer Tracy asked Vaccaro questions about his movements. Vaccaro expressed frustration to the o cers and mentioned that “people are trying to kill me.” Vaccaro also said that he merely “took [his] coat o ” when he pulled over. After saying that he was going to search the car, O cer Tracy asked Vaccaro seven times whether there was a gun in the car. Vaccaro responded once to reiterate that someone was trying to kill him and another time to say “I don’t have any thing.” O cer Tracy added that Vaccaro appeared to be “ex tremely nervous” and in a “real amped up state,” which con tributed to the o cer’s belief that Vaccaro was under the in fluence of drugs. No. 18 1753 3 As O cer Tracy questioned Vaccaro, O cer Frantal found a GPS monitor on Vaccaro’s ankle. Vaccaro confirmed that he was on supervision for “false imprisonment,” which the o cers understood to be a felony. O cer Frantal did not discover a weapon during the frisk. But both o cers testified that they noticed a rifle case in the backseat. Neither o cer said anything, they testified, for fear of their safety; they did not want to alert an “agitated” Vaccaro that they had seen the case. The o cers then locked Vaccaro, still handcu ed, in the backseat of their squad car. O cer Frantal testified that Vac caro “did not appear to be fully stable” as he was led to the car. O cer Frantal called in the tra c violation to dispatch, which drew back up o cers to the scene. Meanwhile, O cer Tracy returned to Vaccaro’s car and began searching the front seats. O cer Frantal then ap proached the vehicle. He soon remarked that he saw a rifle case in the backseat. The o cers then removed a coat on top of the rifle case and eventually confirmed that a rifle was in side it. The magistrate judge recommended that the district court deny Vaccaro’s motion to suppress. She credited the o cers’ testimony that Vaccaro had made furtive movements because Vaccaro had admitted to taking o his jacket; therefore, she said, the o cers had reasonable suspicion to frisk Vaccaro for weapons. But she discredited the o cers’ testimony that they had seen a rifle case in the back of Vaccaro’s car before locking him in the squad car. The legality of the search therefore de pended on whether Vaccaro’s furtive gestures provided the o cers with reasonable suspicion to search the passenger 4 No. 18 1753 compartment of the car in addition to Vaccaro’s person. She concluded that they did. Vaccaro objected to the magistrate judge’s report and rec ommendation, arguing that the immediate frisk was not jus tified by reasonable suspicion and that the search of the car was not a lawful protective search under Long. The govern ment argued that both the frisk and car search were reasona ble. Vaccaro’s furtive movements justified the pat down search, the government said, and locking Vaccaro in the squad car before the vehicle search enabled the o cers to “avert a calamitous and explosive event.” The district judge sided with the government and denied Vaccaro’s motion to suppress. The judge accepted the magis trate judge’s findings of fact and discredited the o cers’ tes timony that they had observed the rifle case in the backseat before they searched the car. But Vaccaro’s furtive movements provided the o cers with reasonable suspicion that he had “potentially armed himself or concealed a firearm,” which warranted a protective frisk. The district judge also concluded that the vehicle search was reasonable under Long. Although Vaccaro was handcu ed and locked in a squad car during the search, he was not under arrest and could still be “dangerous” or gain “immediate access” to weapons. While the o cers’ “stated bases for their suspicion of dangerousness … are few,” the judge observed, he was “constrained” to find that the o cers had reasonable suspicion that Vaccaro was dan gerous based on his “furtive movements,” the “relatively late” time of the stop, and the o cers’ belief that Vaccaro was on drugs. Citing United States v. Arnold, 388 F.3d 237 (7th Cir. 2004), the judge further explained that, had “the tra c stop resulted only in the issuance of a citation for running a red No. 18 1753 5 light, Vaccaro would have been permitted to re enter his ve hicle.” Vaccaro then conditionally pleaded guilty to knowingly possessing a firearm as a felon. 18 U.S.C. § 922(g). He ex pressly reserved the right to challenge the denial of his motion to suppress. On appeal, Vaccaro renews his challenge to the pat down frisk and to the search of his car. We review the district court’s underlying factual findings for clear error, and we review de novo the district court’s legal conclusions, including its deter minations of reasonable suspicion. See Ornelas v. United States, 517 U.S. 690, 699 (1996); United States v. Ruiz, 785 F.3d 1134, 1140–41 (7th Cir. 2015). Vaccaro contends that the district court mistakenly cred ited the o cers’ testimony that he made furtive movements before exiting his car. This argument can be dispatched quickly. Vaccaro protests that because the o cers lied about seeing the rifle case before locking him in the squad car, they were also incorrect (or untruthful) about his movements. But the district court may credit all or part of a witness’s testi mony, especially when there is more than one permissible reading of the evidence. See United States v. McGraw, 571 F.3d 624, 629 (7th Cir. 2009). And although Vaccaro maintains that the o cers’ views through the rear window were obstructed by the headrests and a temporary license card, the judge cred ited the o cers’ testimony about the movements they ob served, bolstered by Vaccaro’s own admission that he took o his coat when he was pulled over. In light of Vaccaro’s admis sion that he was indeed moving around, we are not left with a “definite and firm conviction” that the district court mistak enly credited the o cers’ testimony. See United States v. 6 No. 18 1753 Thurman, 889 F.3d 356, 363–64 (7th Cir. 2018) (finding no clear error when court faced with “he said versus they said” situa tion). Because Vaccaro cannot show that the district court clearly erred in finding that he made furtive movements before leav ing the car, he cannot show that the pat down was unlawful. Vaccaro’s movements, including bending forward at the waist and reaching toward the passenger and rear seats, reasonably suggested that he could be reaching for or concealing a weapon. See United States v. Evans, 994 F.2d 317, 321 (7th Cir. 1993); United States v. Denney, 771 F.2d 318, 322 (7th Cir. 1985). Moreover, Vaccaro appeared to be “having di culty with something that the o cer could not see,” so the o cers had reasonable suspicion to order him out of the car and to per form a pat down search. See United States v. Hendricks, 319 F.3d 993, 1004 (7th Cir. 2003). Vaccaro o ered an innocent ex planation for his movements, but an o cer need not be abso lutely certain that a suspect is armed before conducting a pro tective pat down. See Terry, 392 U.S. at 27; United States v. Ford, 872 F.3d 412, 415 (7th Cir. 2017). Vaccaro also protests that the frisk was unreasonable be cause the o cers handcu ed him unnecessarily. Handcu ng a suspect during a pat down search for weapons should be the rare case. See United States v. Smith, 3 F.3d 1088, 1094 (7th Cir. 1993). But there is “a limited set of circumstances in which handcu s are appropriate without converting a Terry stop into a full arrest,” and “[c]hief among them is o cer safety and the possibility of the presence of a weapon.” Howell v. Smith, 853 F.3d 892, 898 (7th Cir. 2017). Based on the o cers’ concern that Vaccaro might have armed himself with a No. 18 1753 7 weapon when they observed his “aggressive” movements, handcu ng him to conduct the frisk was reasonable. Vaccaro next argues that the district court should have suppressed the rifle because the o cers discovered it during an unlawful search of his car. The government asserts that Michigan v. Long justified the search. The Long exception to the warrant requirement permits the police to search a vehicle when there are “genuine safety or evidentiary concerns.” Ar izona v. Gant, 556 U.S. 332, 347 (2009). Long holds: “[T]he search of the passenger compartment of an automobile, lim ited to those areas in which a weapon may be placed or hid den, is permissible if the police o cer possesses a reasonable belief based on ‘specific and articulable facts which, taken to gether with the rational inferences from those facts, reasona bly warrant’ the o cers in believing that the suspect is dan gerous and the suspect may gain immediate control of weap ons.” 463 U.S. at 1049–50 (quoting Terry, 392 U.S. at 21). In ap plying this test, the key question is whether the search was reasonable. See United States v. Correa, 908 F.3d 208, 217 (7th Cir. 2018). Long searches are grounded in concern for o cer safety, see 463 U.S. at 1050, so if that concern is not present, Long does not justify the search. See Gant, 556 U.S. at 338–39 (discussing how searches incident to arrest are not reasonable if concerns underlying exception to warrant requirement are absent). Long’s first prong is satisfied here because the o cers had reasonable suspicion to believe that Vaccaro was dangerous at the time they searched the car. In addition to Vaccaro’s fur tive movements, the o cers suspected that Vaccaro was un der the influence of drugs, which gave them greater reason to fear for their safety. See Long, 463 U.S. at 1050; United States v. 8 No. 18 1753 Kenerson, 585 F.3d 389, 392 (7th Cir. 2009). The o cers also discovered that Vaccaro was on probation for “false impris onment,” and prior criminal activity is one factor that can con tribute to reasonable suspicion. See United States v. Johnson, 427 F.3d 1053, 1057 (7th Cir. 2005). The second prong of the Long inquiry requires the govern ment to establish that the o cers reasonably suspected that Vaccaro could gain “immediate control” of weapons in the ve hicle. See 463 U.S. at 1049–50; United States v. Stewart, 902 F.3d 664, 674 (7th Cir. 2018). Vaccaro claims that he could not have immediately obtained weapons because he was handcu ed and locked in the back of a squad car. He insists that this case is controlled by Arizona v. Gant, in which the Supreme Court held that o cer safety concerns did not justify a search inci dent to the arrest of a driver who had been handcu ed and locked in the back seat of a squad car. 556 U.S. at 335. The government, on the other hand, contends that Gant doesn’t govern because Vaccaro wasn’t arrested. When a suspect is merely detained, the government argues, United States v. Ar nold controls the Long inquiry. 388 F.3d 237, 241 (7th Cir. 2004). In Arnold, which we decided before Gant, the motorist made furtive movements upon being stopped by police. 388 F.3d at 238. The o cer asked him to step out of the vehicle, patted him down, and “placed [the motorist] in the back seat of the patrol car so that he could ensure that the tra c stop was completed safely.” Id. The o cer then decided to have the car towed because the defendant had been driving with a learner’s permit without a licensed driver. Id. Before towing the vehicle, however, the o cer searched it and discovered a firearm. Id. at 238–39. We held that o cer safety concerns No. 18 1753 9 justified the search under Long. Id. at 241. This was a tra c stop, not an arrest, and the o cer “may have permitted [the motorist] to gather items from the car before leaving the scene even if the o cer would not have permitted him to drive the vehicle.” Id. We also noted that while the motorist was in the back seat of the squad car, he was not handcu ed and there fore “could have broken away from [the o cer’s] control.” Id. At oral argument, we asked the government whether Gant limited or overruled Arnold, and it maintained that Arnold is still good law. We agree. In Arnold, it was reasonable to be lieve that the defendant, who was not under arrest, could have regained access to his vehicle. See id. at 238, 241; see also Gant, 556 U.S. at 352 (Scalia, J., concurring) (“In the no arrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed.”). In Gant, the opposite was true: the defendants were not going to return to the vehicle because they were arrested, handcu ed, and locked in squad cars. See 556 U.S. at 336–37, 344. The cases therefore do not conflict: Arnold applies to Terry stops; Gant applies to arrests. Thus, if Vaccaro had been under arrest, Gant would con trol. And if Vaccaro contended that he had been under arrest, we would face the di cult task of determining whether this Terry stop became an arrest. See, e.g., United States v. Bullock, 632 F.3d 1004, 1016–18 (7th Cir. 2011). But Vaccaro does not argue that the o cers arrested him. To the contrary, he con ceded at oral argument that he had been subjected to a Terry stop, not an arrest, and that he would have been allowed back to his vehicle at the conclusion of his brief detention if the 10 No. 18 1753 o cers had found no contraband.1 Vaccaro’s concession dic tates the disposition of this case. By admitting that he would have been allowed to return to his car, Vaccaro conceded that he could have gained “immediate control of weapons” inside the vehicle. The search was therefore lawful under Long. 463 U.S. at 1049; Arnold, 388 F.3d at 241. The judgment of the district court is AFFIRMED. 1 Vaccaro also conceded that he did not argue in the district court that his detention amounted to an arrest, rather than a Terry stop.
After a permissible pat-down search of the driver, in a traffic stop and placing the restrained driver in the squad car, officers' search of the car was permissible because the driver was not under arrest and would have been allowed to return to the car.


text:
On this final Rapidly Rotating Records show of 2013, we're going to take a stroll, we'll chase some various things, do some hyphenating, take a musical trip to Egypt and celebrate the New Year. As always, simply click on the link below to listen streaming online and/or download. And your feedback, requests and topic suggestions are always welcome. This is the last Rapidly Rotating Records show of 2013, but we're looking forward to more great toe-tapping music in 2014 and beyond. Thanks for listening this past year and for your encouragement and support.
Strolling In The Moonlight With You – Nathan Glantz AHO / Morton Frye, v.
When The Moon Shines Down On Sunshine And Me – Dubin's Dandies (Adrian Schubert's Dance Orchestra) / The Strollers Quartet, v.
Chasing Shadows – The Georgia Washboard Stompers / Jake Fenderson, v.
Chasing The Blues Away – Lou Gold AHO / Lou Abelardo, v.
Wob-A-Ly Walk – Anson Weeks AHO / Unidentified Male Trio, v.
Egypt – Hotel Pennsylvania Music (Phil Spitalny) / Bill Cody, v.
THANKS FOR LISTENING! HAPPY NEW YEAR!!

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


In an opinion made public on May 9th, a federal judge in the Eastern District of Texas denied a motion to dismiss for improper venue. See Tinnus Enters. v. Telebrands Corp., Case No. 6:17-CV-00170-RWS (E.D. Tex. May 1, 2018). Notably, the Court in Tinnus found that a “regular and established place of business” can exist when a manufacturer or wholesaler leases a space within a brick-and-mortar retail store. Id. at 4-5.
District Judge Robert W. Schroeder supported the report and recommendation of Magistrate Judge John D. Love which found that defendant Telebrands consistently leases space with retailers in the district, creating ongoing, long-term relationships with those retailers. Id. at 4. Judge Schroder concluded that the defendant had crafted a regular and established place of business for patent venue purposes by holding out leased store space as their own, paying fees to construct the leased space, and controlling product placement, sales, and displays within that space. Id.
The Tinnus opinion expands upon a shift in patent venue rulings. In 1957, the Supreme Court established 28 U.S.C. § 1400(b) as the “sole and exclusive provision controlling venue in patent infringement actions. Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 226-229 (1957). § 1400(b) states “Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” 28 U.S.C. § 1400(b). In Fourco, the Supreme Court determined that a domestic corporation “resides” only in its state of incorporation under § 1400(b). Fourco., 353 U.S. at 226-29.
At the time, the governing statute on venue, 28 U.S.C. § 1391(c), defined “residence” as the place of incorporation or the place where a company is licensed to do business or is doing business. Id. at 223. Subsequent amendments to the definition of residency in § 1391(c) altered the meaning of corporate residence for venue purposes, expanding it to any district in which a corporation could be subject to personal jurisdiction. In the 1990s, the Federal Circuit extended § 1391(c)’s revised definition of residency to apply to patent venue claims. See VE Holding Corp v. Johnson Gas Appliance Co., 917 F.2d 1574, 1583 (Fed. Cir. 1990), cert. denied, 499 U.S. 922 (1991). Residency in § 1391(c) and residency in § 1400(b) were thus long considered synonymous.
The Supreme Court’s recent decision in TC Heartland reset the definition of residency in § 1400(b), divorcing the patent venue statute’s construction from § 1391(c). TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514, 1520 (2017). In TC Heartland, the Supreme Court held that “residence” in § 1400(b) refers only to the state of incorporation, and further held that the expanded definition of “residence” in § 1391(c) was not intended to alter § 1400(b)’s construction of the term. Id.
A brief period of uncertainty followed the TC Heartland decision as federal courts struggled to define the decision’s impact. A federal district court in Washington state found that TC Heartland changed the governing definition of “residence” in a novel fashion. Westech Aerosol Corp. v. 3M Co., 2017 U.S. Dist. LEXIS 95768, *4 (W.D. Wash. 2017). By contrast, a federal district court in Texas found that TC Heartland simply reaffirmed the definition of “residence” already established in the 1957 Fourco case. Elbit Systems Land and C4L Ltd. v. Hughes Network Systems, LLC, 2017 U.S. Dist. LEXIS 94495, *60, 2017 WL 2651618 (E.D. Tex. 2017).
The question of TC Heartland’s import was clearly answered in In re Micron Tech., Inc., a Federal Circuit decision that concluded that TC Heartland decision was indeed an extension of Fourco. In re Micron Tech., Inc., 875 F.3d 1091, 1099 (Fed. Cir. 2017). In Micron, the Federal Circuit emphasized the Supreme Court’s TC Heartland ruling that “the amendments to § 1391 did not modify the meaning of § 1400(b) as interpreted by Fourco,” and further confirmed that the definition of residence in § 1391(c) is inapplicable to the definition of residence in § 1400(b). Id.
In the year since Micron, a number of closely watched decisions have issued that provide guidance on reconciling TC Heartland’s strict construction of “residence” with commerce in an era of mass retail and digital omnipresence. Chief among these cases is In re Cray, where the Federal Circuit held that “a regular and established place of business” requires that (1) there be a physical place in the district; (2) this place be a regular and established place of business; and (3) the physical place be the place of the defendant. In re Cray Inc., 871 F.3d 1355, 1360 (Fed. Cir. 2017). The defendant in Cray did not rent or own an office or property in the Eastern District of Texas, however, company employees worked remotely from their domiciles within the district. The Federal Circuit determined that the defendant played no role in selecting, enforcing, or utilizing the location of the telecommuting employees, and therefore found that these telecommute arrangements were insufficient to create a “regular and established place of business” for patent venue purposes. Id. at 1364-1365.
Following Cray, decisions issued by the Eastern District of Texas have held that (1) the presence of a telecommuting employee does not satisfy the patent venue statute; (2) distribution centers can constitute a “regular and established place of business;” and (3) electronic data warehousing locations and distribution servers are not a “regular and established place of business. See GEODynamics, Inc. v. DynaEnergetics US, Inc., No. 2:17-cv-00371-RSP, 2017 U.S. Dist. LEXIS 207850, at *3-4 (E.D. Tex. Dec. 18, 2017); Pers. Audio, LLC v. Google, Inc., 280 F. Supp. 3d 922, 933 (E.D. Tex. 2017).
The recent Tinnus opinion further defines the meaning of “regular and established place of business.” See Tinnus Enters. v. Telebrands Corp., Case No. 6:17-CV-00170-RWS (E.D. Tex. May 1, 2018). The opinion provides additional guidance to practitioners defining “residence” under TC Heartland, Micron, and Cray: teleworking employees are not enough, but leased retail space in brick-and-mortar stores might be.
Thomas Dunlap is a Partner with Dunlap Bennett & Ludwig. His practice focuses on patent, trademark, trade secret, commercial, entertainment law, business and government contracts disputes, litigation and transactions. Tom has authored numerous books and appeared on national television and radio including Fox, Sundance TV, and NPR speaking a variety of subjects in his fields of practice. In addition to the state and Federal courts of DC, VA, and MD, he is a member of the Federal Courts in Puerto Rico, Colorado, and Texas, as well as the Court of Federal Claims, the Federal Circuit, the Veteran’s Court of Appeals, and the United States Supreme Court.
For more information or to contact Tom, please visit his Firm Profile Page.
This decision may hold up, but in view of the long history of Fed. Cir. reversals of E.D. TX venue decisions it would be dangerous to entirely rely on it.
We shall see. Telebrands has filed a Mandamus.


Social media use is altering the employment law landscape in many ways, but the most recent trend is emerging from the National Labor Relations Board's aggressive protection over an employee's right (whether the employee is a member of a union or not) to use social media sites as a venue for "protected concerted activity" as defined by Section 7 of the National Labor Relations Act (NLRA).
On this topic, two beneficial documents have been published recently to assist employers in drafting their social media policies and in navigating social media disciplinary decisions so that the employer does not violate the employee's rights in this arena.
On August 5, 2011, the U.S. Chamber of Commerce issued its Survey of Social Media Issues Before the NLRB. The chamber had sent a Freedom of Information Act request to the NLRB and received 129 cases back. According to Michael Eastman, the Executive Director of Labor Law Policy at the US Chamber of Commerce, the issues most commonly raised in the cases before the Board allege that an employer has overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts.
On August 18, 2011, the NLRB's Office of the General Counsel released its own memorandum that summarized the most recent social media cases issued by the NLRB. In the memorandum, Associate General Counsel Anne Purcell states, "Recent developments in the Office of the General Counsel have presented emerging issues concerning the protected and/or concerted nature of employees' Facebook and Twitter postings, the coercive impact of a union's Facebook and YouTube postings, and the lawfulness of employers' social media policies and rules. This report discusses these cases, as well as a recent case involving an employer's policy restricting employee contacts with the media."
1) The employee is using social media to create a site or page or use a site or page where the stated purpose is to organize his or her coworkers to join together to protest working conditions or vote in a union.
2) The employee is using a social media site or page to complain about wages, working conditions, or management, and he or she is explicitly asking other employees for their opinions and support and/or other employees are giving their opinion and support about the working conditions at that company.
3) The employee is using social media to blow the whistle on employer's illegal activity.
1) The employee is venting about his/her own work, working conditions, wages or manager, but he/she is not seeking support from coworkers, yet other coworkers are commenting on it and/or "liking" the comment.
2) The employee is griping about work, working conditions and wages in general, or management, but no one is commenting about it, although the employee's friends or followers include his/her coworkers.
3) The employee is using social media to "out" the employer or managers for what the employee erroneously perceives as illegal or unethical activity. 4) The employee is name-calling or bad-mouthing the company or its employees, but the comments are all true and not harassing or discriminatory.
1) The employee is posting violent threats, harassing and/or discriminatory comments about his coworkers, managers, or customers, and the comments unreasonably interfere with the targets ability to perform his or her job, especially when it is clear that these comments have nothing to do with working conditions.
2) The employee is posting comments that are so disloyal, reckless, or maliciously untrue about the company, and the company can prove the employee knew this when he or she posted it.
3) The employee is disclosing the company's trade secrets and/or confidential information.
4) The employee is spending so much time on social media during work hours that it is interfering with the performance of his or her job. The employer should remember to enforce this policy consistently.
5) The employee is expressing a personal vendetta or gripe about his or her manager or coworkers, but it is not directed at coworkers and only his family and friends see it.
Remember, bad words or profanity are not determinative. It is about the motive behind the name-calling that the NLRB cares about. Also, how the company learned about the social media abuse will be taken into account. In other words, employers should not force employees into giving up their passwords to privacy protected groups or chatrooms. (See Pietrylo v. Hillstone Restaurant Group.) Also, do not pretend to be someone you are not to trick the employee into "friending" you or "accepting" you, especially if you are an attorney-investigator as this may be in violation of your code of professional conduct. Finally, using unlawful surveillance, interrogation, or threats to get information about an employee's social media postings violates California's and other state statutes, which protect employees from this conduct.
On February 23, 2010, the U.S. Court of Appeals for the Ninth Circuit issued an opinion in Misty Cumbie v. Woody Woo, Inc. The court held that where the employer paid at least minimum wage before tips to restaurant wait staff, the employer did not violate the Fair Labor Standards Act (FLSA) when it required the wait staff to participate in tip pooling with the kitchen staff.
This case involved an Oregon restaurant that tip-pooled. Tip pooling typically involves collecting all tips received by directly tipped employees (such as a waitress) so that they may be then redistributed among a larger group of employees (customarily the bussers and other "front of the house" employees.) In this case, Misty Cumbie was a waitress at Vita Cafe, owned by Woody Woo and Aaron Woo, where her tips were redistributed in a tip pool to members of the kitchen staff or "back of the house." Ms. Cumbie argued that the "tip-pooling" violated the FLSA.
Under the FLSA, employers must pay their employees a minimum wage. 29 U.S.C. §206(a). The FLSA's definition of "wage" recognizes that under certain circumstances, employers of "tipped employees" may include part of such employee’s tips as wage payments. 29 U.S.C. §203(m). This is called a "tip credit." Oregon law prohibits employers from paying their employees subminimum wages. Therefore, Vita Cafe did not take a "tip credit" and paid Ms. Cumbie Oregon's minimum wage (which is higher than the federal minimum wage) plus her apportionment of tips from the tip pool. As a result, the Ninth Circuit affirmed the trial court's ruling and held that there is nothing in the FLSA that prohibits tip-pooling, even to members of the kitchen staff, when the employer does not take a tip credit. This case is significant for employers, such as restaurant owners, casinos, hotels, spas, and others, where tips and tip-pooling is a customary part of that industry.
Similar to Oregon Law, California does not allow employers to pay below the minimum wage. Therefore, California employers cannot take a tip credit and in the circumstances set forth in Cumbie v. Woo would also be exempted from the tip pooling restrictions of the FLSA. Nevertheless, California Labor Code §351 has specific tip pooling regulations for California employers. Recent California cases have interpreted this section of the Labor Code to allow tip pooling for most employees in the chain of service to customers, including busboys and bartenders. In Etheridge v. Reins Int'l California, Inc. the California Court of Appeal for the Second District, in a holding similar to Cumbie v.Woo, stated that tip pooling that included members of the kitchen staff and dishwashers did not violate the state law. Nevertheless, California case law clearly prohibits tip pooling when it includes supervisors, managers, and shift managers but carved out an exception in the case of Jou Chau v. Starbucks Corp., by allowing Starbuck's shift supervisors to share in an apportionment of tips from a tip box.
1) Ensure that nonexempt employees receive minimum wage for all hours worked and that the tips are supplemental to their wage.
2) Explain to all employees that the reasoning behind tip pooling is to ensure a team oriented atmosphere and to be fair to all employees whether they directly interface with the customers or provide support to those who do.
3) Emphasize the critical importance of teamwork and team benefits over individual rewards (such as tips) by having employees "train" in each role of a restaurant before they become servers. That is, they will be less inclined to resent tipping out the cook when they intuitively realize that their "tip" is contingent upon the kitchen staff's hard work and efficiency.
4) Create policies and procedures that keep employees happy and reward them for their hard work in addition to tips, making them value their workplace and less inclined to sue.
5) Be clear from the first day as to who is a participant in the tip pool. In California, those who are managers or supervisors may not participate in the tip pooling. State in writing and inform employees how the tip pool will be distributed.
6) If the employer operates in more than one state, ensure that the company complies with federal law as well as the state laws where it operates. This may involve learning the different statutes and regulations for each jurisdiction.
I attended a program presented by the Los Angeles County Bar Association on social media. I expected to get a general overview of legal issues inherent in social media, from the perspective of the entertainment law experts on the panel, so that I could glean new policies or procedures to recommend to my own clients--in house counsel and human resource professionals--for their company's social media policies. As the panel's discussion/debate turned to legal ethics, however, I was reminded of something Bill Vaughan said, "People learn something every day, and a lot of times it's that what they learned the day before was wrong."
Before I attended the program, I believed that anything a person posted on their social website page or profile was "public" information. For example, people could not expect to keep their age a secret if they posted on Myspace the year they were born. I am not alone in that thinking. One of the panelists, Adam Clayton Powell, III, Vice Provost for Globalization at USC, stated his comparable opinion: "Anything on Facebook is as public as if it was published in the LA Times." Although this specific circumstance has not arisen for me in my own investigations, I did not up until this point find any legal or ethical dilemma in looking at an employee's Facebook page during an investigation into that employee's wrongdoing. For example, if an investigator must discern whether an employee made sexually offensive comments about a coworker on Facebook, it made sense for the investigator to go to Facebook and look at the posting to verify the accuracy of the alleged misconduct.
Yet, despite Mr. Kelly's assertions, the issue of whether a person has a right to privacy on a Facebook profile is not set in stone, even in California. Facebook is currently being sued in a class action lawsuit that challenges its privacy settings as misleading and alleges that the settings actually expose users' private information without permission.
What about a different set of facts? For example, what should an attorney or investigator do when the alleged misconduct is the creation of a social media page with the purpose of badmouthing the employer? This was the case in Pietrylo v. Hillstone Restaurant Group, USDC D.N.J. Case No. 2:06-cv-5754 FSH-PS? Is the invasion of privacy justified? Do non-attorney investigators have to consider the ethical issues also?
I am often asked by clients, counsel and human resource professionals, "Do you think the company should ban employees from using social media while at work?" Often those concerned will complain that employees spend too much time on Facebook rather than work. Or that they can't make their employees think before they tweet something that another employee finds offensive. Or, they heard a rumor that there is an anonymous company blog that badmouths the bosses. These are valid concerns for employers and those who must manage employee's behaviors and productivity. According to recent studies, the average worker admits to spending more than 2 hours per 8-hour workday on the Internet. Employees surfing the Internet, including social networking sites and blogs, account for nearly 45% of that wasted time.
Yet despite the drawbacks, social media sites (such as Facebook, Linkedin, Twitter, and Myspace) have many business benefits. Social media sites can help employees augment their computer skills, hone communication skills, connect them with colleagues and mentors, and can be used to promote the values, goals, and marketing interests of their employer. The challenge for a company now is to allow for the innovation of technology, including access to social media, while protecting itself and its employees from abuses. Therefore, my response to the question of whether a company should ban employees from using social media at work is always, "Elvis has left the building." The social media train is moving too fast now for employers to stop it. According to Andrew S. Grove, chairman of Intel, "There are two companies--one that operates (with technology) and one that doesn't...you’re either going to do it or you disappear." In other words, social media is here to stay. Banning it is no longer an innovative, competitive, forward-thinking company's best option.
Employers must accept the inevitability of social media's presence in the workplace as much as they have accepted email, the fax machine, and the intranet. Rather the best practice now for employers is to proactively plan for their employees' abuse of social media and implement an ironclad policy that protects the employer from liability in the event of social media abuse. Certainly, there are no one-size-fits all policies that I can draft that would satisfy the needs of each and every company. Industry, company size, social media use and many other factors must be taken into consideration when designing these innovative policies. Fortunately, the Internet is riddled with example social media policies. In case you do not believe me, here are 200 Sample Social Media Policies.I do not recommend or endorse any of these.
1) State that an employee is permitted to access social media sites while at work as long as the use does not interfere with the optimum performance of their job. The company's primary interest is in its employee's productivity, and the use of social media at the cost of this productivity undermines the company's business objectives.
2) State that the company's Internet and email policies apply to employee's accessing social media sites from company computers. That is, the company owns the computers and technology and can and does monitor this usage. Employees should not have an expectation of privacy while using social media.
3) State that the company's discrimination and harassment policies apply to employee's accessing social media sites. Employees should be considerate of visual content displayed on their computer screens. Moreover, accessing sites that are pornographic, violent, or have sexual or discriminatory content is prohibited. Finally, writing harassing, bullying or discriminatory statements about coworkers or management may also violate the harassment policy and is prohibited.
4) State that the company has an expectation of loyalty from its employees that the employee will not make statements on behalf of the company or use the company logo without express, written permission. Moreover, the company expects that employees will not disparage or defame the company, its employees, or its products on any social media site. The company does not want its employees to respond to negative comments about the company, its employees, or products without express, written consent.
5) State that the company expects employees to act with high ethical standards when accessing social media websites. An employee must never represent him or herself or the company in a false or misleading way. All statements must be true and not misleading. All claims must be substantiated. Finally, using social media for unlawful purposes is prohibited.
6) State that the company's trade secret and confidential communications policies apply to the employee's accessing social media sites. The company expects that employees will not share company secrets, confidential information, or company litigation on social media sites. In the event that an employee inadvertently reveals such information, he or she should inform management immediately.
7) State that an employee who violates this social media policy may be subject to discipline up to and including termination.
As important as the policy is to a company in protecting against abuse, so is its enforcement. Do not bury the policy in your handbooks. Train employees on the content of the policy. Train your management to treat employees consistently in the event that they determine employees are abusing social media. Inconsistent discipline may give rise to a claim of discrimination.
Finally, remind managers not to make promises or assurances that could amend the company's written policy. Once case, presently before the California Supreme Court, Quon v. Arch Wireless Operating Co., involves a sergeant on the Ontario, California, SWAT team who sued his employer for violating his right to privacy because it monitored his text messaging from his department-issued pager. Even though the department had a policy that expressly informed employees of its right to monitor their pagers, the sergeant's supervisor promised him he would not monitor it. Appropriately training supervisory staff on the pitfalls of making these verbal assurances would have prevented this lawsuit.
According to Montana News Station, "to be considered for a job [with the city of Bozeman] applicants must provide log-in information and passwords for social network sites in which they participate." Hypercrit has a roundup.
And on the Volokh Conspiracy: "Court Strikes Down Random Drug Test Policy for All Public School Employees." More here.
Michael A. Geibelson writes: On August 7, the California Supreme Court decided Edwards v. Andersen, concerning the breadth and exceptions to noncompetition agreements under Business and Professions Code Section 16600.
The case involved a claim by a CPA who was a tax manager in the Los Angeles office of Arthur Andersen whose offer of employment was subject to a noncompete agreement. Andersen began selling off practices, including plaintiff's, after it was indicted. HSBC, through a subsidiary called Wealth and Tax Advisory Services (WTAS) was to buy plaintiff's practice group. Plaintiff was required to sign a "Termination of Noncompete Agreement" (TONC) to obtain the new employment with WTAS that required, among other things, voluntary resignation from Andersen, and a release of Andersen from "any and all claims," including "claims that in any way arise from or out of, are based upon or relate to Employee’s employment by, association with or compensation from" defendant. Plaintiff refused to sign the TONC, was refused employment by WTAS/HSBC, and was terminated by Andersen. Then he sued them all.


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Two-and-a-half months before the November 2016 general election, Harlan, the Republican Party’s candidate for an Illinois congressional seat, and the Crawford County Republican Central Committee filed suit, seeking a preliminary injunction against the implementation of a state law that allows voters to register and vote on Election Day itself. The law generally gives more options for same‐day registration and voting for residents of counties with populations of 100,000 or more than it does for those who live in smaller counties. The plaintiffs contended that the difference violated their rights under the Equal Protection Clause. The district court agreed with them and issued the injunction; the Seventh Circuit granted a stay of that injunction, then vacated the preliminary injunction altogether. The district court’s finding that voters would suffer irreparable harm was unsupported as was its application of strict scrutiny based on a finding that the burden on voters in the smaller counties was severe. Plaintiffs failed to show a likelihood of success on the merits.
In the United States Court of Appeals For the Seventh Circuit ____________________ Nos. 16 3547 & 16 3597 PATRICK HARLAN and CRAWFORD COUNTY REPUBLICAN CENTRAL COMMITTEE, Plaintiffs Appellees, v. CHARLES W. SCHOLZ, Chairman, Illinois State Board of Elections, et al., Defendants Appellants, and DAVID D. ORR, Cook County Clerk, Intervening Defendant Appellant. ____________________ Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16 C 7832 — Samuel Der Yeghiayan, Judge. ____________________ ARGUED MAY 30, 2017 — DECIDED AUGUST 4, 2017 ____________________ Before WOOD, Chief Judge, and RIPPLE and ROVNER, Circuit Judges. 2 Nos. 16 3547 & 16 3597 WOOD, Chief Judge. This is a case of wait and hurry up, ra ther than its more familiar cousin, hurry up and wait. With just two and a half months before the November 2016 general election, Patrick Harlan, the Republican Party’s candidate for an Illinois congressional seat, and the Crawford County (IL) Republican Central Committee, filed this lawsuit and promptly sought a preliminary injunction against the imple mentation of a state law that allows voters to register and vote on Election Day itself. Generally speaking, the law gives more options for same day registration and voting for residents of counties with populations of 100,000 or more than it does for those who live in smaller counties. The plaintiffs contended that the difference violated their rights under the Fourteenth Amendment’s Equal Protection Clause. The district court agreed with them and issued the injunction; this court granted a stay of that injunction. We now vacate the prelimi nary injunction altogether. I The law that inspired this litigation is one in a series of measures the Illinois General Assembly has enacted in recent years to facilitate the process of voting for the state’s citizens. Traditionally, Illinois’s deadline for registering to vote was 28 days before the election in question. 10 ILCS 5/5 5. Over the years, the General Assembly added such options as early vot ing and an extended registration “grace period,” and in 2014 it experimented with a pilot program for election day regis tration. See P.A. 98 691. On January 12, 2015, the legislature enacted P.A. 98 1171, which took effect on June 1 of that year; the new law again expanded voting opportunities. It ex tended the registration grace period, which previously had Nos. 16 3547 & 16 3597 3 ended on the third day before an election, to include Election Day, resulting in the following system: During this grace period [within 28 days of the elec tion], an unregistered qualified elector may register to vote, and a registered voter may submit a change of address form, in person at the office of the election au thority, at a permanent polling place established under section 19A 10, at any other early voting site beginning 15 days prior to the election, at a polling place on election day, or at a voter registration location specifically de signed for this purpose by the election authority. 10 ILCS 5/4 50, ¶ 1 (emphasis added). The law also permits the voter to cast his or her ballot at the place of registration, even if that is not the person’s normal precinct. Id. ¶ 2. Recognizing that this expansion of options might be a bur den on smaller counties, the legislature added an opt out pro vision for counties with populations under 100,000 (“smaller counties”). See 10 ILCS 5/4 50, ¶ 5. Elections in Illinois are ad ministered by county clerks, and in some cities, by Boards of Election Commissioners; the State Board of Elections super vises the overall process. 10 ILCS 5/1A 8(12). If the county maintains an electronic version of the paper pollbook (called an “e pollbook”), the 2015 law requires it to offer election day registration at all precinct polling places no matter what the county’s size. Smaller counties that do not have e pollbooks are not required under the legislation to offer election day registration at all polling places, although they may include that option if they wish. But even if they opt not to do so, they must still offer election day registration at “the election au thority’s main office,” as well as at “a polling place in each 4 Nos. 16 3547 & 16 3597 municipality where 20% or more of the county’s residents re side if the election authority’s main office is not located in that municipality.” 10 ILCS 5/4 50, ¶ 5(i) and (ii). The election au thority may also establish other grace periods and voting sites on election days, so long as it gives proper notice of its action. Id. ¶ 5. Illinois has 102 counties. Twenty of those counties have populations of 100,000 or more; those 20 counties are home to approximately 84% of the state’s residents. See Illinois Popu lation Estimates by County, UNITED STATES CENSUS BUREAU, https://factfinder.census.gov/bkmk/table/ 1.0/en/PEP/ 2016/ PEPANNRES/0400000US17|0400000US17.05000. In addition, Grundy County, Brown County, Stark County, and the city of Danville offered election day registration for the 2016 general election. In total, therefore, nearly 85% of the state’s popula tion had access to this convenience, not counting those living in smaller counties whose regular polling place was the elec tion authority’s main office or at the designated location in a city with more than 20% of the county’s population. Plaintiff Patrick Harlan was, at the time this suit was filed, the Republican candidate for the United States House of Representatives for Illinois’s 17th Congressional District, which lies along the state’s western border. The Crawford County Republican Central Committee, which is also a plaintiff, is located in the 15th District, in southeastern Illinois. We refer to them collectively as “Harlan,” as there is no material difference in the arguments they are advancing. On August 4, 2016—more than 18 months after P.A. 98 1171 became law, about four and a half months after the March 2016 primary (which was administered in accordance with P.A. 98 1171), and only 96 days before the general Nos. 16 3547 & 16 3597 5 election—Harlan filed this action. He contended that P.A. 98 1171, codified at 10 ILCS 5/4 50, violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, because (as he sees it) the law disadvantages voters in smaller counties that do not have e pollbooks, and thus comparatively boosts Democratic voter turnout. On August 9, Harlan moved for a preliminary injunction barring election officials throughout the state from implementing the Election Day registration system. The time for waiting apparently had expired; Harlan wanted the court to hurry. His motion argued that the law needed to be enjoined immediately so that no county would offer precinct level registration in the upcoming November election, but he placed no time limit on the requested injunction. In support of his request, he offered only the opinion of M.V. Hood, a political scientist at the University of Georgia. Hood reported that Illinois is the only state that uses this two tiered system. He also said that research shows that Election Day registration has a positive effect on turnout; that the positive effect is not consistent across all age and residential groups; and that it is “quite possible” that Democratic candidates would be disproportionately benefited. Conspicuously absent from his report was data about eligible but not registered voters, their party affiliation, the distribution of those potential voters across large and small population counties, or some quantification or description of the burden (such as the distance) created by the tiered system. Harlan provided no other support—not even a single affidavit from a would be voter. The district court granted the requested relief on September 27, 2016. The preliminary injunction ordered the 6 Nos. 16 3547 & 16 3597 election authorities in all 102 counties not to implement the Election Day registration option at precinct polling places. It contained no language limiting it to the 2016 election. Defendants—the Chairman of the Illinois State Board of Elections, the other members of the Board, and the Cook County Clerk (who had intervened)—filed a notice of appeal that day, and also asked the district court to stay the preliminary injunction pursuant to Federal Rule of Civil Procedure 62(c). (We refer to the defendants collectively as the Election Officials.) The district court denied their motion on September 29; they renewed it in this court, and we granted the stay on October 4. We also denied expedited briefing and consolidated the appeals from the state officials (No. 16 3547) and the intervenor defendant (No. 16 3597). II We heard oral argument in these appeals on May 30, 2017, more than five months after the 2016 general election. That naturally raises the question whether the case is moot: the election for the 17th Congressional District in which Harlan was running is over, the Democratic candidate (Cheri Bustos) won decisively, and the primaries for the 2018 congressional races will not take place until next year. By that time, the counties encompassed within the 15th and 17th Districts may have electronic pollbooks, eliminating any concern that voters (Republican or otherwise) in those areas lack some registration and voting options. Harlan takes the position that the case was indeed rendered moot by the occurrence of the November 8, 2016, general election. The Election Officials point out that the preliminary injunction was not set to end following that election, nor did the district court’s order self destruct at that point. Indeed, although the district court’s Nos. 16 3547 & 16 3597 7 opinion referred to the then upcoming election, it also discussed the law’s ramifications on elections generally—a topic in which the Crawford County Republican Central Committee is undoubtedly interested. Although Harlan says that we should read a termination date into the district court’s injunction, we are wary of doing so. Such an action would be inconsistent with Federal Rule of Civil Procedure 65(d), which requires all injunctions to be self contained documents. We think it best to take the injunction at face value and on that basis determine what, if anything, is left of this case. In order to obtain a preliminary injunction, a plaintiff must show three things: (1) without such relief, he will suffer irrep arable harm before his claim is finally resolved; (2) he has no adequate remedy at law; and (3) he has some likelihood of success on the merits. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1086 (7th Cir. 2008). If the plaintiff can do that much, the court must then weigh the harm the plaintiff will suffer without an injunction against the harm the defendant will suffer with one. Ty, Inc. v. Jones Grp., Inc., 237 F.3d 891, 895 (7th Cir. 2001). In addition, the court must ask whether the preliminary injunction is in the public interest. Jones v. Markiewicz Qualkinbush, 842 F.3d 1053, 1058 (7th Cir. 2016). This type of relief must not lightly be granted: the movant bears the burden of showing that it is warranted. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). On appeal, however, we ask only whether the district court’s decision to grant or deny a preliminary injunction represented an abuse of discretion. Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1437 (7th Cir. 1986). 8 Nos. 16 3547 & 16 3597 Taking the basic criteria in order, we look first at Harlan’s showing of harm. His case rests exclusively on Hood’s testi mony, which we summarized earlier. We conclude that his opinion comes nowhere close to demonstrating that Illinois voters would suffer any harm at all—let alone irreparable harm—under the system set up by P.A. 98 1171. Hood’s re port barely considered the effect of the statute against the backdrop of the rest of Illinois’s electoral system. At best, it gave a 30,000 foot view of some academic research and a table of votes for the candidates of each major party in statewide races in small and large counties. The district court did not explain how that data related to the question before it. Relying on a report from political scientists Roger Lorocca and John S. Klemanski, Hood admitted that political science research generally concludes that Election Day registration has a positive effect on voter turnout. The same report indi cated that “positive turnout effect … is less consistent across age and residential groupings” when centralized Election Day registration is used. Hood never said, however, which groups of voters—older, younger, rural, urban, ethnic, etc.— are statistically more or less likely to benefit from the same day option. Hood also provided no information on the ques tion whether Election Day registration in Illinois’s 20 more heavily populated counties is more likely to increase voter participation than centralized Election Day registration in the smaller counties. Hood also failed to take early voting into ac count, other than to say that it has been linked to negative turnout in studies from states other than Illinois. Lastly, Hood’s conclusion was far from definitive. He ended with these observations, which we quote verbatim: Nos. 16 3547 & 16 3597 Limiting access in 82 of the state’s counties … will likely dampen any positive turnout effect relative to larger counties where [Election Day registration] will be implemented in all voting precincts. 9 It is quite possible … that Illinois’s [Election Day registration] scheme will have the added effect of diminishing GOP votes. But Hood did not quantify his predictions. As a result, the court was in the dark about just how weak the “positive turnout” would be in small counties or how comparatively diminished Republican votes might be. And again, even though Hood purported to assess the impact of the voter registration law on Illinois counties, his report contained no facts about voter registration rates by county or municipality. That said, Hood did admit that the 20 counties required to provide Election Day registration contain about 84 percent of the state’s population. His testimony falls far short of establishing a basis for finding that the law severely burdens the smaller county residents. Without any other basis for finding irreparable injury—and there was none—the district court erred by deeming this element of the preliminary injunction test satisfied. If, contrary to our conclusion, there had been some reason to find irreparable harm, we would move on to the question whether anything but a preliminary injunction could remedy that harm. We assume for the sake of argument that the an swer to this question could be no—in other words, in that counterfactual world, immediate relief would have been needed. 10 Nos. 16 3547 & 16 3597 Last, we turn to likelihood of success on the merits. Here, too, we find nothing in this record that supports a finding that Harlan has any realistic chance of prevailing. We begin with some background rules. In a pair of cases, the Supreme Court addressed the constitutional rules that apply to state election regulations. See Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992); see also Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008). Under the Anderson Burdick test, the court must apply a flexible standard that depends on the severity of the burden imposed by the state law under consideration: A court considering a challenge to a state election law must weigh the character and magnitude of the as serted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vin dicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plain tiff’s rights. Burdick, 504 U.S. at 434 (quotation marks omitted). In Craw ford, a plurality of the Court reiterated that “a court must iden tify and evaluate the interests put forward by the State as jus tifications for the burden imposed by its rule, and then make the ‘hard judgment’ that our adversary system demands.” 553 U.S. at 190 (plurality opinion). (The other three Justices concurred in the judgment on the ground that the burden im posed by Indiana’s voter ID law imposed no special burden on voters and thus the state law was constitutional. See id. at 204 (separate opinion of Scalia, J.). Nos. 16 3547 & 16 3597 11 The Court acknowledged that election laws “inevitably af fect[ ] … the individual’s right to vote and his right to associ ate with others for political ends.” Burdick, 504 U.S. at 433–34. When an election law severely burdens voters’ constitutional rights, that law must be narrowly drawn to advance a com pelling state interest. Id. But when the law “imposes only rea sonable, nondiscriminatory restrictions upon the rights of voters, the State’s important regulatory interests are generally sufficient to justify the restrictions.” Id. at 434 (internal citation omitted). Regulations falling somewhere between those ex tremes—i.e. those that impose more than a minimal, but less than a severe, burden on voting—are evaluated by comparing the burden on the voters with the state’s interest and the means it has chosen to advance that interest. In our case, the district court applied strict scrutiny because it was persuaded that the burden on voters in the smaller counties was severe. But it is unclear on what, precisely, the court relied in arriving at that conclusion. For the reasons we already have reviewed, Hood’s contribution did not fill that void. Also troubling is how Harlan’s attack has shifted as this case has progressed. Hood’s report makes politics front and center; its only analysis of P.A. 98 1171 comes in a section titled “The Partisan Effects of Illinois’ Election Day Registration Statute.” This section discusses the vote totals garnered by the two major parties, by large and small counties. But on appeal Harlan concerns himself with the impact of the law on voters in low population and rural counties, as well as less affluent counties, with only passing reference to partisan effects. But affluence is not a factor mentioned in the law, and nothing suggests that it is correlated with county size. We note that the state’s second largest county is DuPage County, which abuts Cook County 12 Nos. 16 3547 & 16 3597 and Chicago. DuPage County includes some of the Midwest’s most affluent communities and has traditionally been a Republican stronghold. See DuPage County, Illinois, https://en.wikipedia.org/wiki/DuPage_County,_Illinois. This indicates that there is no necessary correlation between affluence, county size, and a tendency to vote Democratic. Finally, even if Harlan’s focus had remained steady, problems would remain. The question whether an election regulation places an unacceptable burden on voters is “not a factual finding, but a legal determination subject to de novo review.” Ohio Democratic Party v. Husted, 834 F.3d 620, 628 (6th Cir. 2016). The Supreme Court held in both Burdick and Crawford that it is wrong to assume that any regulation of the voting process, no matter how trivial, must be assessed using strict scrutiny, just because voting is a fundamental right. In fact, Burdick squarely holds otherwise: “Petitioner proceeds from the erroneous assumption that a law that imposes any burden upon the right to vote must be subject to strict scrutiny. Our cases do not so hold.” 504 U.S. at 432. It follows that not every difference in treatment amounts to an Equal Protection violation. See Crawford, 553 U.S. at 191 (opinion of Stevens, J.). Perhaps recognizing that it was on thin ice, the district court also concluded that even under rational basis review, Harlan had some likelihood of succeeding on the merits. But it provided no support for this conclusion, and we cannot find any in the preliminary injunction record. Harlan offers no ev idence of discriminatory intent, as opposed to evidence of some differences in treatment. As the Supreme Court noted in Anderson, any state election law, “whether it governs the reg Nos. 16 3547 & 16 3597 13 istration and qualifications of voters, the selection of eligibil ity of candidates, or the voting process itself, inevitably af fects—at least to some degree—the individual’s right to vote and his right to associate with others for political ends.” 460 U.S. at 788. In light of the minimal harm posed by P.A. 98 1171 and Harlan’s failure to show a likelihood of success on the merits, we conclude that the preliminary injunction should not have issued. Our view is bolstered by the absence of any consider ation of the public interest in the opportunity to register to vote, and to vote. Even though P.A. 98 1171 does not force quite as many options on the smaller counties as it does on the 20 largest counties, it permits every county to adopt the default same day rules, and it provides realistic same day op tions even in the smaller places. This, coupled with the lack of any data about which groups are disadvantaged and how, dooms the injunction. III Even if the preliminary injunction had been justified at the time the district court entered it, the passage of time has changed at least one thing: the urgency of injunctive relief. There is plenty of time at this juncture for the district court to consider this case without invoking its extraordinary equity powers. The next election that will be affected by P.A. 98 1171 is the off year primary election scheduled for March 20, 2018. To the extent that this injunction is designed to address Illi nois elections until the merits of the case are resolved, we con clude that it must be vacated. 14 Nos. 16 3547 & 16 3597 The preliminary injunction entered by the district court on September 27, 2016, is hereby VACATED and the case is re manded to the district court for further proceedings con sistent with this opinion.
Seventh Circuit vacates injunction against the implementation of an Illinois law that allows voters to register and vote on Election Day.

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