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Introduction. The article considers the prohibition of discrimination on the basis of “attitude to religion” in the context of the content of the constitutional principle of equality of rights and freedoms of man and citizen regardless of attitude to religion. Discussion. The author of the article attempts to determine the legal nature of the prohibition of discrimination based on “attitude to religion”. The author carries out the analysis of the legislation of the Russian Federation for the presence of the considered ban on discrimination. The decisions of the European court of human rights on discrimination of religious belief are investigated. The structure of subjects and objects of discrimination on the basis of “attitude to religion” is defined, forms and methods of such discrimination are listed. Conclusion. The nature of the prohibition of discrimination based on “attitude to religion” in the context of the constitutional principle of equality of rights and freedoms of man and citizen, regardless of attitude to religion has been determined. The difference in the resolution of court disputes on discrimination based on “attitude to religion” in the international and Russian judicial systems is noted.
no. 2-FKZ, of 21.07.2014 no. 11-FKZ)]. Sobranie zakonodatel’stva RF [Collection of Laws of the Russian Federation], 2014, no. 31, art. 4398 (in Russian).
2. The UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (Adopted by General Assembly resolution 36/55 of 25 November 1981). ATP «Consultant» [electronic resource] (in Russian).
3. Code of the Russian Federation on Administrative Offences of 30.12.2001 no. 195-FZ (an edition of 03.08.2018]. Sobranie zakonodatel’stva RF [Collection of Laws of the Russian Federation], 2002, no. 1 (pt. 1); 2018, no. 32 (pt. 2), art. 5119 (in Russian).
4. The Labor Code of the Russian Federation of 30.12.2001 no. 197-FZ (an edition of 03.08.2018). Sobranie zakonodatel’stva RF [Collection of Laws of the Russian Federation], 2002, no. 1 (pt. 1), art. 3; 2018, no. 32 (pt. 1), art. 5108 (in Russian).
5. On Freedom of Conscience and on Religious Associations. Federal Law of 26.09.1997 no. 125-FZ (an edition of 05.02.2018). Sobranie zakonodatel’stva RF [Collection of Laws of the Russian Federation], 1997, no. 39, art. 4465; 2018, no. 7, art. 975 (in Russian).
6. Judgment of the European Court of Human Rights of 31.07.2008 in the Case «Religious Community of Jehovah’s Witnesses and others V. Austria (Religionsgemeinschaft der Zeugen Jehovas and Others)» (complaint no. 40825/98). ATP «Consultant» [electronic resource] (in Russian).
7. Convention for the Protection of Human Rights and Fundamental Freedoms (Concluded in Rome 04.11.1950) (rev. 13.05.2004) (Together with the «Protocol» no. 1 (signed in Paris 20.03.1952), «Protocol no. 4 on Ensuring Certain Rights and Freedoms in Addition to Those Already Included in the Convention and its Аirst Protocol » (signed in Strasbourg 16.09.1963), «Protocol № 7» (signed in Strasbourg 22.11.1984). ATP «Consultant» [electronic resource] (in Russian).
8. The Decision of the Supreme Court of 20.04.2017 no. ACPI 17-238. ATP «Consultant» [electronic resource] (in Russian).
9. The Decision of the Constitutional Court of the Russian Federation of 14.07.2015 no. 21-P. Sobranie zakonodatel’stva RF [Collection of Laws of the Russian Federation], 2015, no. 30, art. 4658 (in Russian).


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WEST v. KANSAS NATURAL GAS CO.
[221 U.S. 229, 230] Messrs. Charles B. Ames and Charles West for appellant.
[221 U.S. 229, 234] Messrs. D. T. Watson, John G. Johnson, John J. Jones, and E. L. Scarritt for appellees.
This appeal brings up for review the decree entered in the circuit court of the United States for the eastern district of Oklahoma in four suits consolidated by stipulation of the parties.
1 Chapter 67. Pipe Lines-Regulating Gas and Oil Pipe Lines. Article. 1.
An Act Regulating the Laying, Constructing, and Maintaining and Operation of Gas Pipe Lines for the Transportation of Natural Gas within the State of Oklahoma, Defining the Modes of Procedure for the Exercise of the Right of Eminent Domain for Such Purposes, Providing for the Inspection and Supervision of the Laying of Such Pipe Lines, and Limiting the Gas Pressure Therein, and Providing Penalties for the Violation Thereof. [221 U.S. 229, 240] of the bills have the same foundation; that is, the right to buy, sell, and transport natural gas in interstate commerce notwithstanding the provision of the statute.
The suits were numbered in the court below 856, 857, [221 U.S. 229, 241] 858, and 859. In 856 the Kansas Natural Gas Company was complainant. It is a corporation of the state of Delaware, and is engaged in the business of purchasing and distributing natural gas to consumers. It has a contract [221 U.S. 229, 242] for the purchase of all the gas that can be produced from a certain well in Washington county, Oklahoma, and has acquired by purchase the right of way over the land upon which the well is located for the laying of a pipe line for the transportation of the gas, and proposes to extend its trunk pipe lines from the present southern terminus thereof in the state of Kansas, southward across the Oklahoma state line to the well. It also proposes to construct lateral and branch lines from the trunk line so extended, for the purpose of gathering and receiving such gas as it may be able to purchase from the owners of other wells. Its line will not be used in any way for local traffic, but only for the transportation of the gas from the wells in Oklahoma into the states of Kansas and Missouri. [221 U.S. 229, 243] In No. 857, the Marnet Mining Company, a corporation of West Virginia, is complainant. For the purpose of transporting from the producers of gas in the state of Oklahoma to purchasers and consumers in Kansas and Missouri, it has purchased a right of way over certain lands in the state, and proposes to construct a system of pipe lines to be used exclusively in such interstate transportation, and not in any way for local traffic.
In No. 858, A. W. Lewis, a citizen and resident of the state of Ohio, is complainant. He is the owner of an oil and gas lease by which he has acquired the right to construct wells on a certain tract of land in Oklahoma, and to take gas therefrom for the period of fifteen years. He has constructed a well, in accordance with his lease, which [221 U.S. 229, 244] is capable of producing many millions of cubic feet of gas per day, which, being in excess of the local demand, he is unable to sell in the state; and he alleges that, being prevented from transporting it from the state, he has suffered great loss and damage, and is deprived of his property without compensation.
In No. 859, O. A. Bleakley, a citizen and resident of Pennsylvania, is complainant. He has received from the Secretary of the Interior a right of way over the land of certain Indians over a designated route, paying to the Indian agent, by law and the rules and regulations of the Interior Department, the value of such right of way and the damages which the owners of the land over which he will pass for the laying and maintaining of a pipe line for the exclusive purpose of transporting natural gas from Oklahoma to Kansas.
It is alleged in the bills that a great number of wells have been drilled in the state at great expense, which are capable of producing more than 1,000,000,000 cubic feet of gas per day; that such amount is more than necessary for the demands of the people of the state, and the excess of supply is required to meet the wants of those residing in Missouri and Kansas. This want, it is alleged, may be supplied through the distributing plants now constructed and those contemplated by complainants, but that under the present conditions the owners are required to cease development work, and to keep large and valuable wells capped and inoperative, to their great injury and damage. It is alleged that in constructing lines for such transportation it will not be necessary to go along the highways of the state, but only across or over them; and that the lines to be constructed will be private lines, will endanger the lives and property of no one, and will be constructed in just conformity with all reasonable rules and regulations of the state.
It is averred that each of the defendants is charged, by [221 U.S. 229, 245] virtue of his office, to execute the laws and Constitution of the state, and that he has undertaken to enforce the act hereinbefore referred to by proceedings in courts and by force of arms, and it is his intent and avowed purpose to prevent the transportation of gas beyond the limits of the state. The particular acts are set forth.
The bills pray discovery, that the act above referred to be declared void as being in conflict with 8, article 1, and the 14th Amendment of the Constitution of the United States, and that the defendants be enjoined from the things attributed to them. General relief is also prayed.
Demurrers were filed to the bills, which were overruled (172 Fed. 545 ), and the defendants answered.
It is further alleged that in order to supply the cities of the state with gas, lines are continually being extended, and that there are several other pipe lines which are seeking to carry on business in the state in the same manner as desired by complainant, and if the right exist in complainant, it exists in all other foreign corporations, and, if exercised, lines will be extended, as one part of the field becomes exhausted, to other parts of the field, and the lines supplying the cities of the state will also be extended in [221 U.S. 229, 248] like manner and effect, and a speedy destruction of the supply of the gas in the state will result.
Appellant admits that it is his duty to execute the laws of the state, and that it is his intention to enforce chapter 67 of the Session Laws of 1907 and 1908, and the acts amendatory and supplementary thereto 'in so far as the same must or should be done by litigation in which the state is interested,' but that his duties rest solely upon himself, and are not controlled by others, and that he intends to prevent solely by actions in competent courts the laying, constructing, and operating of gas pipe lines in, on under, across, or along the highways of the state by complainant or by any other person not authorized so to do by the laws of the state. He denies the acts of force charged against him, or that he proposes to use force. The other denials and admissions it is not necessary to set out. A dissolution of the injunction is prayed.
The cases were conosolidated, as we have said, and submitted on the bills and the answers, 'to the end that an immediate determination thereof and final decree therein' might be obtained.
A final decree was entered, declaring that the statute referred to 'is unreasonable, unconstitutional, invalid, and void, and of no force or effect whatever,' and a perpetual injunction was awarded against its enforcement. [221 U.S. 229, 249] The basis of the decree of the court was that expressed in its opinion ruling upon the demurrers; to wit, that the statute of Oklahoma was prohibitive of interstate commerce in natural gas, and in consequence was a violation of the commerce clause of the Constitution of the United States, and that being, as the court said, its dominant purpose, it would, if enforced against complainants, 'invade their rights as guaranteed by the 14th Amendment of the National Constitution' and also the Constitution of the state. 172 Fed. 545.
These conclusions are contested, and it is asserted that the statute's 'ruling principle is conservation, not commerce; that the due process clause is the single issue.' And due process, it is urged, is not violated, because the statute is not a taking of property, but a regulation of it under the police power of the state. The provisions of the act, it is further insisted, are but exercise of the police power to conserve the natural resources of the state, and as means to that end the right of eminent domain is forbidden to foreign corporations engaged in transporting gas from the state, and the use of the highways of the state confined to pipe lines operated by domestic corporations, in order that gas may be transmitted only between points within the state. And such exercise of power, it is contended, does not regulate interstate commerce, but only affects it indirectly.
A paradox is seemingly presented. Interstate commerce in natural gas is absolutely prevented,-prohibited, in effect, for we think it is undoubted that pipe lines are the only practical means of gas transportation, and to prohibit interstate commerce is more than to indirectly affect it. Every provision of the statute is directed to such result. Pipe line construction is confined to corporations organized under the laws of the state, and the condition of their incorporation is that they shall only transmit gas between [221 U.S. 229, 250] points in the state, and shall not transport to or deliver to corporations or persons engaged in transporting or furnishing gas to points outside of the state. The right of eminent domain is given alone to such corporations, and the use of the highway is confined to them; and that there be no element of control over them omitted, a violation of the statute is punished by a forfeiture of charters and of property. Nor can a new corporation be formed if even one of its stockholders was a stockholder of an offending corporation.
The statute presents no embarrassing questions of interpretation. It was manifestly enacted in the confident belief that the state had the power to confine commerce in natural gas between points within the state, and all of the rights conferred on domestic corporations, all of the rights denied to foreign corporations, were means to such end. And the state having such power, it is contended, if its exercise affects interstate commerce, it affects such commerce only incidentally. In other words, affects it only, as it is contended, by the exertion of lawful rights, and only because it cannot acquire the means for its exercise.
The appellant makes a broader contention. The right to conserve, or rather, the right to reserve, the resources of the state for the use of the inhabitants of the state, present and future, is broadly asserted. 'The ruling principle of the law,' counsel say, 'is conservation, not commerce.' It is true the means adopted to secure conser- [221 U.S. 229, 251] vation is more insistently brought forward than the right of conservation, and the power of the state over its corporations and over its highways and its right to give or withhold eminent domain is many times put forward in the argument and illustrated by the citation of many cases. It cannot but be observed that these rights need not the support of one another. If the right of conservation be as complete as contended, for it could be secured by simple prohibitions or penalties. If the power over highways and eminent domain be as absolute as asserted, it will have to be given effect, no matter for what purpose exercised. We are therefore admonished at the very start in the discussion of the importance of the questions presented and the power which the states may exert against one another, even accepting the concession of appellant that Congress may break down the isolation by granting the right not only to take private property, but to subject the highways of the state, against the consent of the state, to the uses of interstate commerce. With full appreciation of the importance of the question involved, we pass to their consideration.
The second question is not presented in the case. The provisions of the statute are not directed against waste. They are directed against any use of the gas except in the state. The right of the state 'to preserve the common supply for the equal use of all' owners is not denied by appellees. We put the question out of consideration, therefore, except incidentally, and concede the right of the state to preserve the supply of gas, as we shall hereafter set forth.
The extent of power which the second question implies a state possesses challenges serious inquiry. The natural resources of a state may be other than natural gas; for [221 U.S. 229, 252] example, may be timber and coal and iron ane other metals; but it is contended that the right of conservation extends to these, and the broad statement of the first question is qualified in the argument by the properties of natural gas and the limitation of its supply. This, it is contended, gives a range to the police power of the state which otherwise it would not possess. And such power, as we understand the further contention to be, may determine not only the conservation of the resources of the state, but as to what class of persons may use them, as dependent upon their transportation in state, rather than in interstate, commerce. The contention is discussed at length and variously illustrated. Indeed, analogies are adduced of limitations upon the use of property by virtue of the police power under conditions which invoke its exercise for the advancement of the general welfare. We select for review from the cases brought forward, those nearest to our inquiry, which are Ohio Oil Co. v. Indiana, 177 U.S. 190 , 44 L. ed. 729, 20 Sup. Ct. Rep. 576, 20 Mor. Min. Rep. 466; Lindsley v. Natural Carbonic Gas Co. 220 U.S. 61 , ante, 337, 31 Sup. Ct. Rep. 337; Hudson County Water Co. v. McCarter, 209 U.S. 349 , 52 L. ed. 828, 28 Sup. Ct. Rep. 529, 14 A. & E. Ann. Cas. 560.
Ohio Oil Co. v. Indiana was a writ of error to the supreme court of Indiana to review a judgment of that court which sustained a statute which prohibted anyone having the control or possession of any natural gas or oil well to permit the gas or oil thereform to escape into the open air, and restrained the oil company from violating the statute. Against the statute was urged the rights of property assured by the 14th Amendment of the Constitution of the United States. The case is a valuable one and clearly announces the right of an owner to the soil beneath it, and the relation of his rights to all other owners of the surface of the soil. The right of taking the gas, it was said, was common to all owners of the surface, and because of such a common right in all landowners, an unlimited use (against a wasteful use the statute was directed) by any it was competent for the state to prohibit. This [221 U.S. 229, 253] limitation upon the surface owners of property was justified by the peculiar character of gas and oil, they having the power of self- transmission, and that therefore to preserve an equal right in all surface owners there could not be an unlimited right in any. Gas and oil were likened to, not made identical with, animals feroe naturoe, and, like such animals, were subject to appropriation by the owners of the soil, but also, like them, did not become property until reduced to actual possession.
The case, therefore, is an authority against, not in support of, the contention of the appellant in the case at bar.
The statute of Indiana was directed against waste of the gas, and was sustained because it protected the use of all the surface owners against the waste of any. The statute was one of true conservation, securing the rights of property, not impairing them. Its purpose was to secure to the common owners of the gas a proportionate acquisition of it,-a reduction to possession and property,-not to take away any right of use or disposition after it had thus become property. It was sustained because such was its purpose; and we said that the surface owners of the soil, owners of the gas as well, could not be deprived of the right to reduce it to possession without the taking of private property. It surely cannot need argument to show that if they could not be deprived of the right to reduce the gas to possession, they could not be deprived of any right which attached to it when in possession.
The Oklahoma statute far transcends the Indiana statute. It does what this court took pains to show that the Indiana statute did not do. It does not protect the rights of all surface owners against the abuses of any. It does not alone regulate the right of the reduction to possession of the gas, but, when the right is exercised, when the gas becomes property, takes from it the attributes of property,-the right to dispose of it; indeed, selects its market, to reserve it for future purchasers and use within the state, [221 U.S. 229, 255] on the ground that the welfare of the state will thereby be subserved. The results of the contention repel its acceptance. Gas, when reduced to possession, is a commodity; it belongs to the owner of the land; and, when reduced to possession, is his individual property, subject to sale by him, and may be a subject of intrastate commerce and interstate commerce. The statute of Oklahoma recognizes it to be a subject of intrastate commerce, but seeks to prohibit it from being the subject of interstate commerce, and this is the purpose of its conservation. In other words, the purpose of its conservation is in a sense commercial,-the business welfare of the state, as coal might be, or timber. Both of those products may be limited in amount, and the same consideration of the public welfare which would confine gas to the use of the inhabitants of a state would confine them to the inhabitants of the state. If the states have such power, a singular situation might result. Pennsylvania might keep its coal, the Northwest its timber, the mining states their minerals. And why may not the products of the field be brought within the principle? Thus enlarged, or without that enlargement, its influence on interstate commerce need not be pointed out. To what consequences does such power tend? If one state has it, all states have it; embargo may be retaliated by embargo, and commerce will be halted at state lines. And yet we have said that 'in matters of foreign and interstate commerce there are no state lines.' In such commerce, instead of the states, a new power appears and a new welfare,-a welfare which transcends that of any state. But rather let us say it is constituted of the welfare of all of the states, and that of each state is made the greater by a division of its resources, natural and created, with every other state, and those of every other state with it. This was the purpose, as it is the result, of the interstate commerce clause of the Constitution of the United States. If there is to be a turning backward, it [221 U.S. 229, 256] must be done by the authority of another instrumentality than a court.
The case of State ex rel. Corwin v. Indiana & O. Oil, Gas, & Min. Co. 120 Ind. 575, 6 L.R.A. 579, 2 Inters. Com. Rep. 758, 22 N. E. 778, is pertinent here. A statute of Indiana was considered which made it unlawful to pipe or conduct gas from any point within the state to any point or place without the state. It was assailed on one side as a regulation of interstate commerce, and therefore void under the Constitution of the United States. It was defended, on the other hand, as a provision for the exercise of the right of eminent domain, confining it to those engaged in state business, denying it to those engaged in interstate business; and, further, as inposing restrictions on foreign corporations. It will be observed, therefore, the statute had, it may be assumed, the same inducement as the Oklahoma statute, and the same special justifications were urged in its defense. The court rejected the defenses, and decided that the statute was not a legitimate exercise of the police power, or the regulation of the right of eminent domain or of foreign corporations, but had the purpose 'plainly and unmistakably manifested' to prohibit transportation of natural gas beyond the limits of the state; and that, this deing its purpose, it was void as a regulation of interstate commerce. These propositions were announced: (1) Natural gas is as much a commodity as iron ore, coal, or petroleum or other products of the earth, and can be transported, bought, and sold as other products. (2) It is not a commercial product when it is in the earth, but becomes so when brought to the surface and placed in pipes for transportation. (3) If it can be kept within the state after it has become a commercial product, so may corn, wheat, lead, and iron. If laws can be enacted to prevent its transportation, 'a complete annihilation of interstate commerce might result.' And the court concluded: 'We can find no tenable ground upon which the act can be sustained, and we are compelled to [221 U.S. 229, 257] adjudge it invalid.' The case was explicitly affirmed in Manufacturers' Gas & Oil Co. v. Indiana Natural Gas & Oil Co. 155 Ind. 545, 53 L.R.A. 134, 58 N. E. 706, 21 Mor. Min. Rep. 102.
The case is valuable because the court, through the same justice who wrote the opinion, distinguished between an exercise of the police power to regulate the taking of natural gas and its prohibition in interstate commerce.
Jamieson v. Indiana Natural Gas & Oil Co. 128 Ind. 555, 12 L.R.A. 652, 3 Inters. Com. Rep. 613, 28 N. E. 76, sustained a statute which prohibited the taking of gas under a greater pressure than 300 pounds to the square inch. The court said that natural gas 'is, on doubt, so far a commercial commodity that this state cannot prohibit its transportation to another state by direct legislation,' citing State ex rel. Corwin v. Indiana & O. Oil, Gas, & Min. Co. supra. The court said further: 'If it can be taken from the well and transportated to another state under a safe pressure, the state cannot prohibit its transportation, nor can the state establish one standard of pressure for its own citizens and another standard for the citizens of other states.' The court, therefore, discerning in the statute no discrimination and no prohibition, but only a regulation universal in its application, and justified by the nature of the gas, and which allowed its transportation to other states, decided that there was no restriction or burden upon interstate commerce.
Lindsley v. Natural Carbonic Gas Co. 220 U.S. 61 , 55 L. ed.-, 31 Sup. Ct. Rep. 337, is to the same effect as Ohio Oil Co. v. Indiana. Its similarity to the latter case was pointed out. Indeed, they can be said to be identical in principle. In the one case oil and gas, in the other mineral water and gas, were commingled beneath the surface of the earth, and capable of movement and common ownership. In the one case the right was asserted to waste the gas to secure the oil, which was the more valuable of the two; in the other case the right was asserted to waste the water to secure the gas, as the more valuable of the two. In both cases there was [221 U.S. 229, 258] a statute forbidding the waste. Speaking of the purpose of the statute in Lindsley v. Natural Carbonic Gas Co. it was said: 'It is to prevent or avoid the injury and waste suggested that the statute was adopted. It is not the first of its type. One in principlee quite like it was considered by this court in Ohio Oil Co. v. Indiana, 177 U.S. 190 , 44 L. ed. 729, 20 Sup. Ct. Rep. 576, 20 Mor. Min. Rep. 466.' The statute was sustained upon the reasoning of that case.
Hudson County Water Co. v. McCarter is urged, we have seen, on our attention. A statute of the state of New Jersey was involved, which made it unlawful for any person or corporation to transport or carry through pipes the waters of any fresh-water lake, river, etc., into any other state, for use therein. Two propositions may be said to be the foundation of the decision of the court below sustaining the statute. (1) 'The fresh- water lakes, ponds, brooks, and rivers, and the waters flowing therein, constitute an important part of the natural advantages of' the state, 'upon the faith of which its population has multiplied in numbers and increased in material and moral welfare. The regulation of the use and disposal of such waters, therefore, if it be within the powers of the state, is among the most important objects of government.' (2) 'The common law recognizes no right in the riparian owner, as such, to divert water from the stream in order to make merchandise of it, nor any right to transport any portion of the water from the stream to a distance for the use of others.' [70 N. J. Eq. 701, 709, 14 L.R.A. (N.S.) 197, 118 Am. St. Rep. 754, 65 Atl. 489, 10 A. & E. Ann. Cas. 116.] It was further declared that the common law authorized the acquisition of water 'only by riparian owners, and for purposes narrowly limited. Not that the ownership is common and public.' And the contention was rejected that the title of the individual riparian owner was to the water itself,-the fluid considered as a commodity,-and exclusive against the public and against all persons excepting other riparian owners.
It is clear that neither of these propositions will support the contentions of the appellant in the case at bar. Nor [221 U.S. 229, 259] does any principle announced upon the review of the case here, though the power of the state to enact the statute was put 'upon a broader ground than that which was emphasized below.' The police power of the state was discussed and the difficulty expressed of fixing 'boundary stones between' it and the right of private property which was asserted in the case. There were few decisions, it was said, that were very much in point. But certain principles were expressed, of which Geer v. Connecticut, 161 U.S. 519 , 40 L. ed. 793, 16 Sup. Ct. Rep. 600, was considered as furnishing an illustration, and Kansas v. Colorado, 185 U.S. 125 , 46 L. ed. 838, 22 Sup. Ct. Rep. 552, and Georgia v. Tennessee Copper Co. 206 U.S. 230 , 51 L. ed. 1038, 27 Sup. Ct. Rep. 618, 11 A. & E. Ann. Cas. 488, some suggestions.
It is hardly necessary to say that there was no purpose in the case to take from property its uses and commercial rights, or to assimilate a flowing river and the welfare which was interested in its preservation to the regulation of gas wells, or to take from the gas when reduced to possession the attributes of property decided to belong to it in Ohio Oil Co. v. Indiana, and recognized in Lindsley v. Natural Carbonic Gas Co. Indeed, pains were taken to put out of consideration a material measure of the benefits of a great river to [221 U.S. 229, 260] a state. And surely we need not pause to point out the difference between such a river, flowing upon the surface of the earth, and such a substance as gas, seeping invisible through sands beneath the surface.
'No state by the exercise of, or by the refusal to exercise, any or all of its powers, may prevent or unreasonably burden interstate commerce within its borders in any sound article thereof.
The power of the state of Oklahoma over highways is much discussed by appellant and appellees; the appellant contending for a power practically absolute, as exercised under the statute, making the highways impassable barriers to the pipe lines of appellees. The appellees contend for a more modified and limited right in the state, one not extending beyond an easement of public passage, subject, therefore, to certain rights in the abutting owners, which rights can be transferred; and further contend that even [221 U.S. 229, 262] if the power of the state be not so limited, it cannot be exercised to discriminate against interstate commerce.
The rights of abutting owners we will not discuss, nor the rights derived from them by appellees, except to say that whatever rights they had, they conveyed to appellees, and against them there is no necessity of resorting to the exercise of eminent domain. We place our decision on the character and purpose of the Oklahoma statute. The state, as we have seen, grants the use of the highways to domestic corporations engaged in intrastate transportation of natural gas, giving such corporations even the right to the longitudinal use of the highways. It denies to appellees the lesser right to pass under them or over them, notwithstanding it is conceded in the pleadings that the greater use given to domestic corporations is no obstruction to them. This discrimination is beyond the power of the state to make. As said by the circuit court of appeals in the eighty circuit, no state can by action or inaction prevent, unreasonably burden, discriminate against, or directly regulate, interstate commerce or the right to carry it on. And in all of these inhibited particulars the statute of Oklahoma offends.
Mr. Justice Holmes, Mr. Justice Lurton, and Mr. Justice Hughes dissent.
Section 1. Any firm, copartnership, association, or combination of individuals may become a body corporate under the laws of this state for the purpose of producing, transmitting, or transporting natural gas to points within this state by complying with the general corporation laws of the state of Oklahoma, and with this act.
Sec. 2. No corporation organized for the purpose of, or engaged in, the transportation or transmission of natural gas within this state, shall be granted a charter or right of eminent domain, or right to use the highways of this state, unless it shall be expressly stipulated in such charter that it shall only transport or transmit natural gas through its pipe lines to points within this state; that it shall not connect with, transport to, or deliver natural gas to individuals, associations, copartnerships, companies, or corporations engaged in transporting or furnishing natural gas to points, places, or persons outside of this state.
Sec. 3. Foreign corporations formed for the purpose of, or engaged in the business of, transporting or transmitting natural gas by means of pipe lines, shall never be licensed or permitted to conduct such business within this state.
Sec. 4. No association, combination, copartnership, or corporation shall have or exercise the right of eminent domain within this state for the purpose of constructing or maintaining a gas pipe line or lines within this state, or shall be permitted to take private or public property for their use within this state, unless expressly granted such power in accordance with this act.
Sec. 5. The laying, constructing, building, and maintaining a gas pipe line or lines for the transportation or transmission of natural gas along, over, under, across, or through the highways, roads, bridges, streets, or alleys in this state, or of any county, city, municipal corporation, or any other private or bublic premises within this state, is hereby declared an additional burden upon said highway, bridge, road, street, or alley, and any other private or public premises, may only be done when the right is granted by express charter from the state, and shall not be constructed, maintained, or operated until all damages to adjacent owners are ascertained and paid as provided by law.
of proper persons skilled in such business, to be designated by the chief mining inspector for such duty, and the expenses of such inspection and supervision shall be borne and paid for by the parties laying and constructing such pipe lines for the transportation or transmission of natural gas.
Sec. 7. No pipe line for the transportation or transmission of natural gas shall be subjected to a greater pressure than 300 pounds to the square inch, except for the purpose of testing such lines, and gas pumps shall not be used on any gas pipe line for the transportation or transmission of natural gas, or used on or in any gas well within this state.
to the payment of the cost of such proceeding, and the remainder, if any, paid into the school fund of the state, and said charter under which said act or acts were committed shall be revoked, and no charter for the transportation or transmission of natural gas shall ever be granted to any corporation having among its stockholders any person who was one of the stockholders of said corporation whose charter has or may have been forfeited as aforesaid, and if any such charter shall have been granted, and thereafter a person shall become a stockholder thereof who was one of the stockholders of the corporation whose charter has been or may have been forfeited, as herein provided, the charter of said corporation, one of whose stockholders is as last named, shall therefore be forfeited and revoked. Provided, that any person who may be denied the right to become a stockholder as above prescribed may be granted the right to become such stockholder by the corporation commission, when such person shows to such commission that he was not a party to the former violation of this act.
lines to transport or transmit gas to wells which are being drilled within this state, and further provided, that factories in this state may transport or transmit gas through pipe lines for their own use for factories located wholly within this state, upon securing the right of way from the state over or along the highways and from property owners to their lands.
Sec. 10. That no person, firm, or association or corporation shall ever be permitted to transmit or transport natural gas by pipe lines in this state, or in this state construct or operate a pipe line for the transmission of natural gas, except such persons, firms, associations, or corporations be incorporated as in this act provided, except as in 9 of this act, and provided further that all persons, firms, corporations, associations, and institutions now doing the business of transportation or transmission [of] natural gas in the state and otherwise complying with this act are hereby permitted to incorporate under the provisions of this act within ten days after the passage and approval of the same.
Sec. 11. All acts and parts of acts in conflict with this act are hereby repealed.
Sec. 12. An existing emergency is hereby declared by the legislature for the preservation of the public peace, health, and safety of the state.
Sec. 13. This act shall take effect from and after its passage and approval, as provided by law.

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text:
reports of the testifying experts of the United States.
Motion” or “Motion for Appropriate Relief”).
filed a motion pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
December 22, 2000, the United States submitted the sworn declaration of Bruce F.
any principal or employee of [AGE] in connection with this case; ….
and prep the experts.” Id.
writing by AGE for the United States’ testifying experts would not be acceptable.
that they had reviewed each other’s reports.
apparent that some of the experts were publicly advertised as “affiliates” of AGE.
the basis on which AGE asserted that recovery was not possible.
encompass communications between the testifying experts as well as draft reports.
the United States Department of Justice dated December 26, 2000.
the United States Department of Justice dated January 4, 2001.
FN5. Subpoena in a Civil Case, dated January 5, 2001.
the United States Department of Justice dated January 10, 2001.
opinions….” Fed.R.Civ.P. 26(a)(2) (emphasis supplied).
importance in understanding and testing the validity of an expert’s opinion.
which the expert relied) by an expert witness are to be disclosed. In Karn v.
of reports sent from and to the *283 testifying experts. See, e.g., Georgou v.
more important to a cross-examination than the documents actually relied upon).
and the Federal Rules of Civil Procedure.” Lamonds, 180 F.R.D. at 305.
meaning of Rule 26(b)(3).” B.C.F. Oil, 171 F.R.D. at 62 (citations omitted).
cooperatively with other experts and under the auspices of AGE.
have produced the draft reports and communications with draft reports attached.
experts whose work AGE directed, destroyed many of the documents.
in resolving Trigon’s motion is to understand the concept of spoliation.
as “[t]he intentional destruction of evidence….”). See also Vodusek v.
Elec. Tool Corp., 13 F.3d 76, 78 (3rd Cir.1994).
wrongdoer.” Black’s Law Dictionary, 1086 (6th ed.1997).
in allowing a party to destroy evidence and then to benefit from that conduct.
a party in the same position who does not destroy the [evidence].’ ” Anderson v.
other evidence that may be less persuasive, less accessible or both.
the exercise of all others.” United States v. Hudson, 7 Cranch 32, 34, 3 L.Ed.
also Ex parte Robinson, 86 U.S. [19 Wall.] 505, 510, 22 L.Ed. 205 (1873).
U.S. 626, 630-631, 82 S.Ct. 1386, 1388-1389, 8 L.Ed.2d 734 (1962)).
of admissible evidence, and destroys such documents.” Id.
F.2d 75, 80-81 (2nd Cir.1992).
Midwest v. American Automatic, 23 F.Supp.2d 623, 626 (D.Md.1998).
charge to the jury and the jury subsequently found for the defendant.
On appeal, the Fourth Circuit upheld the adverse inference instruction.
at trial and otherwise would naturally have been introduced into evidence.
party.” 2 Wigmore on Evidence, s 285 at 192 (Chadbourn rev.1979).
Vodusek, 71 F.3d at 156.
844 F.2d 1239, 1246 (6th Cir.1988); Nation-Wide Check Corp., 692 F.2d at 218).
not necessary to obtain relief from spoliation.
some party’s claim.” Anderson v. National Railroad Passenger Corp., 866 F.Supp.
937, 945-46 (E.D.Va.1994) (citing to Nation-Wide Check Corp., 692 F.2d at 219).
actions that would result in the destruction of the evidence.
evidence is relevant to litigation.” Kronisch, 150 F.3d at 126. See Bowman v.
is required before sanctions for spoliation may obtain. See Anderson v.
if in fact shown to have occurred, becomes relevant.”).
866 F.Supp. at 945-946 (quoting Nation-Wide Check Corp., 692 F.2d at 219).
to circumstances of spoliation. As cogently explained in *288Gates Rubber Co.
serve to deter such conduct by others in the future.
Id. at 79 (citations omitted). See also Bowman, 1998 WL 721079, 1998 U.S. Dist.
1. Was There A Duty To Preserve The Evidence At Issue?
between the testifying experts, and the draft reports of the experts are evidence.
As noted in Section I, under the mandatory disclosure rules of Fed.R.Civ.P.
was duty-bound not to destroy such documents.
2. Was The Evidence Intentionally Destroyed?
the conclusion that the evidence was destroyed intentionally.
interpreting it, as applied to the facts here require disclosure of such evidence.
trial for cross-examination and Daubert purposes.
situation even in the world of today’s litigation.
party is an essential tool for exposing any weaknesses in the expert’s opinions.
discover the material provided to the expert by the lawyer or consultant.
“reliable principles and methods” to “sufficient facts or data”. Fed.R.Evid. 702.
just another legal practitioner for the client.
experts’ opinions and the influences upon them, are invaluable.
opinions and about the ghost writing of the opinions.
effectively to cross-examine most of the United States’ testifying experts.
report. See Trigon’s Supplemental Brief on Motion for Appropriate Relief, at 14.
Fragments of e-mails that were recovered by Deloitte & Touche evidence that Dr.
THE END OF YOUR REPORT YET BECAUSE WE ARE DOING SO.” Id. at 15, Exhibit 9.
could taint all of the expert evidence to be offered by the United States.
start over would constitute an even greater prejudice than currently exists.
process of evaluating the expert evidence to be offered by the United States.
cross-examining the experts offered by Trigon.
associated with the United States’ spoliation of documents.
sanctions are appropriate on the record here presented.
report by someone other than the expert purporting to have written it.
expected that counsel may assist some witnesses” in preparing their reports).
Recent cases have helped to clarify this issue. In Marek v. Moore, 171 F.R.D.
298 (D.Kan.1997), an expert had submitted a report to counsel who had engaged him.
and designating all supporting exhibits.
and Mandatory Disclosure: A Guide to Efficient Practice s 1[b] (2nd ed.1994)).
modes of obtaining an expert’s signature to an opinion not truly his own.
drafted the portion of the report that included his opinions and bases for them.
the evidence of independent thought shown in the experts own work papers.
plaintiffs’ counsel also signed the report. Id.
expert’s input to ensure that it complies with the rules is permissible.
Manning, 1999 WL 342715, *2-3.
cloth” and asked the expert to sign it as if it were his own. Id.
signing one’s name at the bottom to signify agreement.
alleged in a complaint” in his report.
F.R.D. 291, 293-94 (S.D.Ind.1997) (parenthetical omitted).
confronted at his deposition with questions about the authorship of his report.
express the opinions of the lawyers who hired them. See, e.g., C. Baxter Int’l.
who will be trying the case).
the facts of the case.”); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
determine a fact in issue.”).
on upon which he did not rely and did not fully *295 believe should be followed.
practice of experts in his field, or even his own normal practice.
expert must report on the basis of his own knowledge and expertise.
participate as the alter-ego of the attorney who will be trying the case.
independence as an expert witness destroys his credibility”); Folden v.
course, is the sine qua non of admissibility of expert testimony.
substantive assistance in drafting the expert’s report.
and they can be used to show the lack of independence.
missing documents, will take this into consideration in its evaluation of Dr.
experts, the Court will act appropriately at trial.
Trigon Ins. Co. v. U.S.
204 F.R.D. 277, 88 A.F.T.R.2d 2001-6883, 51 Fed.R.Serv.3d 378, 57 Fed. R. Evid.
Cargill, Inc. v. C & P Towing Co., Inc.

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Donna F. Coltharp, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendants-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 3:05-CR-1996-ALL.
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:[fn*] [fn*] Pursuant to 5TH OR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Jose Conde-Sanchez (Conde) appeals the 41-month sentence he received for attempted illegal reentry under 8 U.S.C. § 1326. First he asserts that his sentence at the bottom of the guidelines range was unreasonable because the district court failed to properly weigh several of the factors under 18 U.S.C. § 3553(a). He claims that the sentence does not reflect the seriousness of his offense, that it fails to take into consideration the sentencing disparities created because the Western District of Texas does not have an early disposition program, and that his history and characteristics support a more lenient sentence.
When the district court imposes a sentence within the guidelines range, we infer that the court has considered all the factors for a fair sentence and "give great deference to that sentence." United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.), cert. denied, 546 U.S. 828, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). Conde has failed to establish the rare circumstances where a district court's decision to impose a guidelines sentence is not entitled deference. See id.
Next Conde challenges the constitutionality of § 1326(b)'s treatment of prior aggravated felony convictions as sentencing factors rather than elements of a separate offense. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Conde asserts that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we repeatedly have rejected such arguments on the basis that Almendarez-Torres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 546 U.S. 919, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005).


We're back with the last installment of cases from the past two weeks: Staub v. Proctor Hospital (09-400), upholding the so-called "cat's paw" theory of employment discrimination; Wall v. Kholi (09-868), holding that sentence reduction motions under state law toll the time for filing a federal habeas petition; Skinner v. Switzer (09-9000), holding that state prisoners may seek DNA testing of crime-scene evidence though §1983 actions; and CSX Transportation, Inc. v. Alabama Department of Revenue (09-250), on the discriminatory taxation of rail carriers.
The term "cat's paw" comes from a fable in which a monkey tricks a cat into reaching into a fire to extract roasting chestnuts, then runs away with the chestnuts, leaving the cat with burnt paws. In employment law, it refers to cases in which employees seek to hold employers liable for the discriminatory animus of a supervisor who does not make the ultimate employment decision. (If the connection is not clear to you, it is not clear to Justice Scalia either. He takes a swipe at the reference as "relevant only marginally, if at all" to employment law.) In any event, in Staub v. Proctor Hospital (09-400), the Court held that an employer will be liable for discrimination if a supervisor performs an act motivated by discriminatory animus that is intended by the supervisor to cause an adverse employment action, and the act is a proximate cause of the ultimate employment action – even if that action is officially taken by another decisionmaker without discriminatory animus.
Staub was a technician at Proctor Hospital, as well as a member of the Army Reserve. Staub's supervisors at the hospital were hostile toward his military obligations, making derogatory remarks about his absences, scheduling him for additional shifts without notice, and indicating that they would like to "get rid of him." Critical to this case, one of these supervisors issued Staub a "Corrective Action" warning for purportedly violating a company rule requiring him to stay at his desk when he was not working with a patient. Several months later, the other supervisor told the hospital's VP of human resources that Staub had left his desk, in violation of the Corrective Action. The VP relied on the supervisor's accusation and terminated Staub. Staub challenged the firing through the hospital's grievance process, arguing that his supervisor had fabricated the allegations underlying the Corrective Action out of hostility to his military obligations. The VP stuck to her decision. Staub sued, and a jury found that Staub's "military status was a motivating factor in [the hospital's] decision to discharge him," in violation of the Uniformed Services Employment and Reemployment Rights Act. The Seventh Circuit reversed, and held that the hospital was entitled to judgment as a matter of law. Under Seventh Circuit precedent, employers were not liable for the animus of a supervisor who did not make the ultimate employment decision, unless the supervisor exercised such "singular influence" over the decisionmaker that the decision to terminate was the product of "blind reliance."
The Court reversed, 6-2. (Justice Kagan did not participate.) Writing for the Court, Justice Scalia reasoned that under traditional tort principles, a supervisor's discriminatory actions could be a proximate cause of an adverse employment decision, even if another officer exercised judgment in making the employment decision. The other officer's decision would not be a superseding cause of the harm, where it was foreseeable to (and indeed, desired by) the supervisor with discriminatory animus. The Court rejected the hospital's argument that an employer should be able to negate the effect of prior discrimination so long as the decisionmaker conducts an independent investigation. If the employer can show that it took an adverse action for reasons unrelated to the discrimination, then the employer will not be liable. But an employer cannot avoid liability simply by conducting an independent investigation if the decision is still influenced by the discrimination. Here, a reasonable jury could have found that Staub's supervisors intended for him to be fired, and that their discriminatory actions caused him to be fired.
Justice Alito, joined by Justice Thomas, concurred in the judgment only. In their view, discrimination must be present within the mind of the person who makes the adverse employment decision. The Court need not worry that this would allow employers to escape liability by assigning a formal decisionmaker to rubberstamp the recommendation of others, however – in those cases, the employer would have actually delegated decisionmaking to the person making the recommendation or placing the discriminatory information in the file. In this case, for example, there was sufficient evidence to support a finding that the hospital actually delegated part of the decisionmaking authority to one of the supervisors with discriminatory animus, because the VP of human resources accepted his accusations at face value.
We now turn to a pair of cases on post-conviction review. State prisoners have one year from the time their judgment becomes final to file a federal habeas petition. That time is tolled by an application for state "post-conviction or other collateral review." In Wall v. Kholi (09-868), the Court held that a motion to reduce a sentence under state law constitutes "collateral review" and thus qualifies for tolling. Justice Alito wrote for a unanimous Court. In both ordinary usage and the Court's prior usage, the term "collateral" means a form of review that is not part of the direct appeal process. "Review" refers to a judicial reexamination. The case at hand concerned a Rhode Island Rule of Criminal Procedure that allows a court to reduce any sentence "on reflection or on the basis of changed circumstances that the sentence originally imposed was, for any reason, unduly severe." The Court had little difficulty concluding that a proceeding under this rule would be "collateral," and that it would involve a "review" of the sentence. While the Court has used the phrase "collateral review" to refer to proceeding that challenge the "lawfulness" of a prior judgment, the Court has not limited it to such proceedings. As a policy matter, tolling the limitation period for all "collateral review" motions provides litigants with more opportunity to resolve objections at the state level, potentially obviating the need to resort to federal court.
In Skinner v. Switzer, the Court considered whether state prisoners could seek DNA testing of crime-scene evidence though §1983 actions. Skinner was convicted for a triple-murder in Texas in 1995. Some of the DNA and fingerprinting evidence from the crime scene implicated him, but one item did not, and the State left some items untested. Skinner's petitions for state and federal habeas relief were unsuccessful. Skinner also made two motions under Article 64, a Texas statute that allows prisoners to obtain post-conviction DNA testing in limited circumstances. Skinner's first motion was denied, for failure to demonstrate a reasonable probability that he would not have been convicted if the DNA test results were exculpatory. His second motion was also denied, for failure to demonstrate that the evidence was not tested previously "through no fault" on his part. Specifically, the Texas court noted that Skinner's trial counsel had admitted that he had not asked for testing because he was afraid the DNA would turn out to be Skinner's. Skinner then filed for injunctive relief under §1983, alleging that Texas had violated his Fourteenth Amendment right to due process by refusing to provide the DNA testing he requested. The District Court dismissed the suit, and the Fifth Circuit affirmed, on the ground that post-conviction requests for DNA evidence are cognizable only in habeas corpus, not under §1983.
The Court reversed, 6-3. Writing for the Court, Justice Ginsburg emphasized that the Court was not deciding the merits of Skinner's claim, only holding that it was cognizable under §1983. The Court understood Skinner to challenge Article 64 "as construed" by the Texas courts to foreclose requests by any prisoner who could have sought DNA testing prior to trial but did not. Skinner was not challenging the decisions against him per se. Thus, contrary to the State's arguments, Skinner's challenge was not barred by the Rooker-Feldman doctrine. That doctrine only bars federal suits which seek review and rejection of a state court decision; it does not bar suits challenging the statute or rule governing the decision. Turning to whether Skinner could present his challenge in a §1983 action, and not just through a habeas petition, the Court adhered to its prior holdings that §1983 is available where a judgment in the plaintiff's favor would not "necessarily imply the invalidity of his conviction or sentence." Even if Skinner succeeded in getting DNA testing, it would not "necessarily imply" the invalidity of his conviction: the results might be inconclusive or even inculpatory. Thus, he was entitled to proceed under §1983. The Court dismissed the dissent's concern about a proliferation of §1983 actions seeking post-conviction relief. The Court had previously rejected a substantive due process right to DNA testing, and left "slim room" for a prisoner to show a procedural due process violation. Nothing in the present opinion changed that.
Justice Thomas dissented, joined by Kennedy and Alito. Given that the Court has rejected §1983 challenges to state trial procedures, the dissenters saw no principled reason to allow §1983 challenges to state procedures for reviewing the validity of convictions. Congress and the Court have placed restrictions on federal habeas review of state convictions and habeas decisions, out of concerns for federal-state comity. The majority's decision would allow unsuccessful state habeas petitioners to make an end-run around these restrictions by artfully pleading an attack on state habeas procedures rather than state habeas results. The dissent asked: "What prisoner would not avail himself of this additional bite at the apple?"
Our last case, CSX Transportation, Inc. v. Alabama Department of Revenue, is the most scintillating of the bunch – that is, if you're a railroad tax practitioner. The Railroad Revitalization and Regulatory Reform Act of 1976, affectionately known as the "4-R Act," restricts state and local governments from imposing discriminatory taxes on rail carriers. Section 11501(b)(1)-(3) of the Act expressly prohibit states and local governments from assessing taxes on railroad property at a higher rate than other commercial and industrial property. Subsection (b)(4) prohibits the imposition of "another tax that discriminates against a rail carrier." Alabama charges general sales and use taxes, which railroads pay when they purchase or consume diesel fuel. But the railroads' main competitors, interstate motor and water carriers are generally exempt from paying sales and use taxes on their fuel. Rail carrier CSX complained that Alabama thereby discriminated against rail carriers, in violation of the 4-R Act. The District Court dismissed CSX's suit as not cognizable under the 4-R Act, and the Eleventh Circuit affirmed.
The Court reversed, 7-2, led by Justice Kagan. The sales and use taxes at issue were clearly "another tax" under §11501(b)(4). The key question was whether a tax could be said to "discriminate" against a railroad just because the State had granted exemptions to other entities. Looking to Black's Law Dictionary, "discrimination" is the "failure to treat all persons equally where no reasonable distinction can be found between those favored and those not favored." An exemption does just that (assuming that the groups are similarly situated and there is no justification for the difference in treatment). Thus, state sales and use taxes that apply to railroads but exempt their interstate competitors are subject to challenge under §11501(b)(4). The Court distinguished the case before it from an earlier decision in which it held that railroads could not sue states under subsection (b)(4) for imposing property taxes on railroads while exempting certain other commercial property. That decision turned on the fact that subsections (b)(1)-(3) expressly addressed property taxes and compared only property that was actually taxed, not all property that was taxable. The Court acknowledged that distinguishing between property tax exemptions and other tax exemptions made "not a whit of sense." But that choice was not the Court's to make: "Congress wrote the statute it wrote." As to the merits of CSX's argument, the Court left them for the lower courts on remand.
Demonstrating that this case did not push any ideological hot buttons, Justice Thomas was joined by Justice Ginsburg in dissent. In their view, §11501(b)(4) reaches only tax exemption schemes that target or single out railroads as compared to other commercial and industrial taxpayers. As the majority noted, subsection (b)(1)-(3) prohibit taxing railroad property at a higher rate than other commercial and industrial property. Thus, when subsection (b)(4) speaks of "another tax that discriminates," context suggests that it is concerned with discrimination vis-a-vis commercial and industrial property. By detaching (b)(4) from the rest of §11501, and failing to define the comparison class, the majority's position would allow railroads to challenge any exemptions they did not receive, setting them up for a "surprising windfall: most-favored taxpayer status."
Thanks for hanging in there with us as we worked our way through the first large batch of the season. We'll be back when the Court returns with orders and decisions this coming week.


text:
Megan Chacon is a Principal in the Southern California office of Fish & Richardson. Her practice emphasizes complex patent litigation across a wide range of technologies. Ms. Chacon has extensive experience in the life sciences and pharmaceutical fields, including Hatch-Waxman litigation. She has worked on matters involving a wide variety of pharmaceutical compounds, formulations, and treatment methods for conditions such as schizophrenia, bipolar depression, pain management, hepatitis C virus, oral testosterone therapy, and osteoporosis. Ms. Chacon also has experience with biotechnology, chemicals, medical devices, and consumer products.
Ms. Chacon’s experience covers all aspects of pre-litigation due diligence and litigation, including case assessment, domestic and international document collection and production, managing fact and expert discovery teams and strategy, depositions, dispositive motions, Markman hearings, settlement strategy, and pre-trial and trial work. While Ms. Chacon focuses her practice in the United States District Courts and has appears in many across the country, she also has experience with the U.S. International Trade Commission.
Prior to joining the firm, Ms. Chacon practiced as a patent litigator at a leading intellectual property law firm in New York focusing on Hatch-Waxman litigation. Ms. Chacon also served as a Student Judicial Extern to The Honorable Clark Waddoups, United States District Court, District of Utah (2009).
“Mayo at Five: Are Traditional Method of Treatment Claims in Danger Under Section 101?,” co-authored with Geoff Biegler and Dalia Kothari, Fish Litigation Blog (October 9, 2017).
“Mayo at Five: Eligibility of Diagnostic Method Claims,” co-authored with Geoff Biegler and Dalia Kothari, Fish Litigation Blog (September 6, 2017).
“Diagnostics Patent Eligibility: A Turning Point Approaches,” co-authored with Jenny Shmuel, Life Sciences Intellectual Property Review (February 16, 2016).
Life Sciences Patent Eligibility “101”: Mayo at Five, co-authored with Geoff Biegler and Dalia Kothari.
“Patentable Subject Matter in the Life Sciences,” University of San Diego School of Law Intellectual Property Law Conference (March 22, 2019).
“Biosimilar and Hatch-Waxman Litigation,” San Diego Office CLE Event (January 24, 2018).
“Fishbowl Session,” facilitator, Benchmark Litigation Women In Business Law Forum Los Angeles (September 28, 2017).
Sumitomo Dainippon Pharma Co., Ltd. v. Emcure Pharma Ltd. et al. (D. NJ): Representing Plaintiffs in Hatch-Waxman litigation over schizophrenia and bipolar depression medication LATUDA®.
Yeiser Research & Development LLC v. Teknor Apex Co. (S.D. Cal.): Representing Defendant in trade secret and breach of contract litigation over Teknor Apex’s Zero G garden hose.
iCeutica Inc. et al v Lupin, Ltd., et al. (D. Md.): Representing Plaintiffs in Hatch-Waxman litigation over pain medication VIVLODEX®.
Gilead Sciences, Inc. v. AbbVie (D. Del.): Represented Plaintiff in litigation over its hepatitis C treatment HARVONI®.
Allergan Sales, LLC v. Aurobindo Pharma Ltd. et al. (EDTX): Represented Plaintiff in Hatch-Waxman litigation over ocular pain drug ACULAR® LS.
Clarus Therapeutics, Inc. v. Lipocine Inc. (D. Del.): Represented Defendant in litigation related to Defendant’s oral testosterone therapy formulation.
iCeutica Inc. et al v Lupin, Ltd., et al. (D. Del): Represented Plaintiffs in Hatch-Waxman litigation over pain medication ZORVOLEX®.
Warner Chilcott Co., LLC v. Teva Pharmaceuticals USA, Inc. (D. NJ): Represented Plaintiff in Hatch-Waxman litigation over osteoporosis treatment ATELVIA® (prior to joining Fish & Richardson).
Authors: Megan A. Chacon, Jenny Shmuel, Ph.D.

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text:
Bryan is a shareholder in Godfrey & Kahn’s Litigation Practice Group in the firm’s Madison office. Bryan advises and represents clients in all phases of litigation, from pre-suit investigation through trial and appeals. In addition to appearing in state and federal trial and appellate courts, Bryan also represents utility clients in contested proceedings before the Public Service Commission of Wisconsin.
Bryan’s trial practice encompasses a variety of commercial litigation, including eminent domain and land-use disputes, products liability defense, invasion of privacy torts, insurance sales practices challenges, deceptive trade practices and consumer fraud claims, and class action defense. He also advises and represents clients in municipal disputes arising from zoning law and land-use ordinance violations.
Before joining the firm, Bryan served as the law clerk to the Honorable David T. Prosser at the Wisconsin Supreme Court.
Garza v. American Transmission Company LLC, Wisconsin Supreme Court 2014AP2278 (reversing appellate court decision, granting summary judgment confirming the electric transmission utility’s easement rights, and dismissing plaintiffs’ trespass and inverse condemnation claims). Read the Wisconsin Supreme Court Opinion.
Larson v. Wisconsin Physicians Service Insurance Corporation, W.D. Wisconsin No. 14CV215 (granting motion to dismiss plaintiff’s putative class action challenging health insurer’s use of copayments for chiropractic care).
Moran v. IOD Incorporated, Massachusetts Superior Court (defended a medical records release-of-information company against a class action alleging overcharging and violations of state deceptive trade practices statute, obtaining a favorable, early settlement on a class-wide basis).
Stolen Farms, Inc. v. American Transmission Company LLC, Wisconsin Court of Appeals 2010AP1427 (affirming the trial court’s summary judgment decision confirming the electric transmission utility’s right to exercise its eminent domain power for purposes of upgrading a high voltage transmission line). Read Court of Appeals Opinion.
Oaks v. Settlers Life Insurance Company, Wisconsin Court of Appeals 2009AP2061, (reversing the trial court’s summary judgment decision and granting the life insurer summary judgment, holding that the life insurance beneficiary could not recover because the policy was void ab initio). Read Court of Appeals Opinion.
Westphal v. Smelser, et al., Wisconsin Court of Appeals 2007AP827 (reversing the trial court’s denial of summary judgment resulting in dismissal of conspiracy and tort claims against executive by former management employee). Read Court of Appeals Opinion.
Singer v. Pneumo-Abex LLC, Wisconsin Court of Appeals 2010AP2614 (January 18, 2012: Reversing trial court's denial of brake lining manufacturer's motion for summary judgment in wrongful death mesothelioma case and vacating $1.5 million jury verdict). Read Court of Appeals Opinion.

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the county clerk. Any person affected by an order of the fence viewers may appeal to the district court within ten days after the date such order is filed.
Source: R.S. 1866, c. 1, § 19, p. 8; R.S. 1913, § 2482; C.S. 1922, § 2424; C.S. 1929, § 34-108; R.S. 1943, § 34-108; Laws 1994, LB 882, § 3.


William P. Tedards, Jr., Washington, D.C. (Leo G. Finucane, Finucane & Hartzell, LLP, Pittsford, NY, on the brief), for Plaintiff-Appellant.
Ben M. Krowicki, Bingham McCutchen LLP, Hartford, CT, for Defendants-Appellees.
Before WINTER, CALABRESI, POOLER, Circuit Judges.
Plaintiff-appellant Louis E. Thyroff appeals from an adverse disposition of his case in which the United States District Court for the Western District of New York (Telesca, J.) dismissed his claims for conversion and breach of contract. In an unpublished opinion, the district court dismissed the former upon defendants-appellees' motion to dismiss and the latter on its motion for summary judgment. Thyroff now challenges both of these decisions.
The correctness of the district court's dismissal of Thyroff's conversion claim turns on an issue of New York law on which the New York Court of Appeals has not yet ruled. Specifically, Thyroff claims that defendants-appellees Nationwide Mutual Insurance Company et al. (collectively, "defendants") converted his electronic data, and he is therefore entitled to relief under New York law. It is unclear, however, whether electronic data may be the subject of a conversion claim under New York law. Compare Sporn v. MCA Records, Inc., 58 N.Y.2d 482, 489, 462 N.Y.S.2d 413, 448 N.E.2d 1324 (1983) (noting that "an action for conversion will not normally lie, when it involves intangible property") with Shmueli v. Corcoran Group, 9 Misc.3d 589, 594, 802 N.Y.S.2d 871 (N.Y.Sup.Ct.2005) (holding that plaintiff's computerized client list is property that may support a claim of conversion). Because this precise issue is unaddressed by the New York Court of Appeals and is controlling in the disposition of Thyroff's conversion claim, we certify the question—whether electronic data may be the subject of a conversion claim—to the New York Court of Appeals.
As to Thyroff's breach-of-contract claim, however, we affirm the decision of the lower court because we agree that Thyroff has failed to satisfy the burden necessary to bring this claim to trial. We reject Thyroff's position that the expiration of the contract's non-compete clause created an affirmative contractual obligation requiring that defendants provide Thyroff the materials necessary to compete.
We therefore affirm in part the decision of the district court regarding the dismissal of Thyroff's breach-of-contract claim, and we certify the above-described question to the New York Court of Appeals. We retain jurisdiction over the case to decide the appeal on the conversion claim after we have learned the views of the New York Court of Appeals or that court declines certification.
Thyroff was associated with Nationwide Mutual Insurance Company ("Nationwide") as an insurance agent for twenty one years. Pursuant to this relationship, on October 13, 1988, Thyroff and Nationwide entered into an Agent's Agreement ("AA"), which governed the relationship between the parties. One section of the AA, 11(f), is relevant to the instant appeal.
Section 11(f) covers " [c]essation of [a]gency [s]ecurity [c]ompensation" and is, in part, a type of non-compete clause. According to 11(f) (1), if an agent is in any way connected "with the fire, casualty, health, or life insurance business, within one year following cancellation [of the agent relationship] within a 25 mile radius of [the agent's] business location," any obligation that Nationwide may have to provide "Agency Security Compensation"1 terminates.
In addition to requiring that Thyroff enter into the AA, Nationwide also required that Thyroff lease an agency office-automation system ("AOA"), including hardware and software, from Nationwide. Thyroff signed a lease agreement and paid monthly lease payments for the use of this system. Thyroff's office operations were very much dependent on the AOA. On a daily basis, Thyroff and his staff entered business data and information onto the hard drives of the AOA computers. Nationwide then uploaded that information on a nightly basis from Thyroff's computers onto Nationwide's computers. In the process, Nationwide also uploaded Thyroff's personal information, which was unrelated to Nationwide business.
On September 18, 2000, Thyroff received a letter cancelling the AA. On September 19, 2000, without notice, Nationwide denied Thyroff access to the AOA as part of the cancellation of the AA, and it reclaimed its AOA. In the process, Nationwide took various software programs—including Microsoft Word, PowerPoint, Excel, etc.—and various files—including personal email, documents, and assorted data—that Thyroff stored on the system. Nationwide also seized data that Thyroff had compiled on Nationwide customers that Thyroff needed in order to retain his customers' business once his relationship with Nationwide ended.
According to Thyroff's complaint, Nationwide was not entitled to take his personal or business information from the computers. Thyroff maintains that neither the AOA lease agreement nor the AA granted Nationwide this right. Nationwide's seizure of this electronic information—both Thyroff's business records and personal information—forms the basis of Thyroff's conversion claim.
The seizure of the business records alone is the basis for Thyroff's breach-of-contract claim. According to Thyroff, section 11(f) dictates that an agent must not compete for one year following the termination of the AA, but after this year, the agent is free to compete. Thyroff maintains that this, along with the implied covenant of good faith and fair dealing, see 511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 153, 746 N.Y.S.2d 131, 773 N.E.2d 496 (2002) (noting that all contracts under New York law include this implied covenant), created a contractual obligation for Nationwide not to deprive Thyroff access to business information necessary to compete once the year expired. Under this theory, when Nationwide seized its policyholder information from the AOA without first providing Thyroff an opportunity to duplicate it, it interfered with Thyroff's ability to compete and therefore breached the contract.
The district court disagreed, dismissing both the conversion claim and breach-of-contract claim. The instant appeal ensued.
The district court dismissed Thyroff's conversion claim upon defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (6). We review the court's decision on a motion to dismiss de novo, examining all facts and drawing all inferences in plaintiff's favor. Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). "Dismissal is inappropriate unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Id.
We apply New York law to Thyroff's conversion claim. According to New York law, " [c]onversion is the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights." Vigilant Ins. Co. of Am. v. Hous. Auth., 87 N.Y.2d 36, 44, 637 N.Y.S.2d 342, 660 N.E.2d 1121 (1995) (internal quotation marks omitted). This includes a "denial or violation of the plaintiff's dominion, rights, or possession" over her property. Sporn, 58 N.Y.2d at 487, 462 N.Y.S.2d 413, 448 N.E.2d 1324. It also requires that the defendant exclude the owner from exercising her rights over the goods. New York v. Seventh Regiment Fund, Inc., 98 N.Y.2d 249, 259, 746 N.Y.S.2d 637, 774 N.E.2d 702 (2002).
The district court found that Thyroff failed to state a claim for the conversion of any personal data because Thyroff did not allege that Nationwide exercised dominion over that data to the exclusion of Thyroff. It also found that Thyroff failed to state a claim for the conversion of any business records on the AOA because Nationwide owns the AOA.
We disagree. We turn first to Thyroff's personal records, files, and programs. The complaint alleges that Nationwide denied Thyroff access to the AOA and has continued to retain possession of Thyroff's personal information. The complaint also alleges that this is property that Nationwide unlawfully took, and it cannot be replaced. In Sporn, 58 N.Y.2d at 488, 462 N.Y.S.2d 413, 448 N.E.2d 1324, the New York Court of Appeals explained that if "the conduct the plaintiff seeks to recover for amounts to the destruction or taking of the property, then the action is properly deemed one for conversion." Id. (emphasis added). Thus, it is not an issue of unresolved state law that Nationwide's taking of Thyroff's property may form the basis of a conversion claim. Therefore, assuming conversion is cognizable for electronic data, Thyroff has alleged all of the elements for a claim of conversion as to his personal information, and his claim was improperly dismissed.
The district court incorrectly found that Thyroff failed to meet these elements because Thyroff did not expressly allege that Nationwide exercised dominion over his personal property. Nationwide repeats this on appeal, claiming that the complaint is insufficient because it does not expressly allege that Nationwide excluded Thyroff from exercising his right to possession. However, construing the complaint in favor of Thyroff, while giving him every permissible inference, as we must on a motion to dismiss, see Sweet, 235 F.3d at 83, we find that Thyroff's complaint—which alleges that Nationwide took possession of Thyroff's personal property that cannot be replaced—satisfies Thyroff's burden according to principles resolved under New York law. See, e.g., Seventh Regiment Fund, Inc., 98 N.Y.2d at 259-60, 746 N.Y.S.2d 637, 774 N.E.2d 702; Sporn, 58 N.Y.2d at 487-88, 462 N.Y.S.2d 413, 448 N.E.2d 1324.
Similarly, we disagree with the district court's finding that Thyroff failed to state a claim for conversion of any business records on the AOA because Nationwide owns the AOA. Nationwide owns the AOA, but that does not mean that it also owns any records that Thyroff may have saved on the system. Additionally, Thyroff has alleged that he installed his personal computer programs onto the AOA, and it is clear that Nationwide does not own these programs. Had Nationwide leased Thyroff a filing cabinet into which Thyroff placed his personal property, such as a camera, Nationwide would not contend that it could seize Thyroff's camera when it reclaimed its filing cabinet. The instant situation is no different. This argument could be tenable if Thyroff had agreed to such terms, but the AOA lease agreement contains no such language transferring the ownership of Thyroff's personal property that he saved on the AOA to Nationwide.
Although the AOA lease agreement could arguably be read to deem the policyholder information the property of Nationwide, even this is not clear from the face of the agreement, so we must infer that it does not, given the posture of this case. See Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469-70 (2d Cir. 1995). The district court therefore erred in drawing the opposite inference against Thyroff on a motion to dismiss. See id. Thus, if a conversion claim may extend to electronic data, Thyroff has stated a claim sufficient to survive Nationwide's motion to dismiss for both his personal and business data.
Nationwide, however, argues that a claim of conversion is not cognizable for electronic data. The district court did not provide this as a basis for dismissing Thyroff's claim, but we are free to affirm a decision on any grounds supported in the record, even if it is not one on which the trial court relied. McCall v. Pataki, 232 F.3d 321, 323 (2d Cir. 2000).
In making its argument that conversion is not available for electronic data, Nationwide points to New York case law, which states that an action for conversion will not normally lie over intangible property, see Sporn, 58 N.Y.2d at 489, 462 N.Y.S.2d 413, 448 N.E.2d 1324. It then argues that electronic data is intangible and therefore not convertible. Nationwide concedes, as it must, that there is an exception to this rule for documents that embody an intangible right, like stock certificates, which may be the subject of conversion. See Iglesias v. United States, 848 F.2d 362, 364 (2d Cir. 1988).
A survey of New York state case law reveals that the issue of whether a conversion claim may apply to electronic data is unsettled. The New York Court of Appeals has held that a conversion claim may not lie for intangible property. See Sporn, 58 N.Y.2d at 489, 462 N.Y.S.2d 413, 448 N.E.2d 1324. It has created an exception to this, however,—for information merged into a document, such as with a stock certificate—that could potentially be extended to the instant case to enable a claim for the conversion of electronic data merged into a computer program.
The various Departments of the Appellate Division have also decided cases that are instructive to the instant appeal. For instance, the First Department found no cause of action for the conversion of plaintiff's time, assets, associations, employees' services and equipment because it found that no cause of action exists for the conversion of intangibles and because plaintiff failed to establish that defendants exercised dominion over plaintiff's assets or equipment to the exclusion of plaintiff's rights. MBF Clearing Corp. v. Shine, 212 A.D.2d 478, 623 N.Y.S.2d 204, 206 (1995). Employing this same reasoning in Ippolito v. Lennon, 150 A.D.2d 300, 542 N.Y.S.2d 3, 6 (1989), the First Department found that an artist could not sue for conversion of his interest in his performance. Id. In dismissing this claim, the court highlighted the merger exception mentioned above. Id. It stated that "under an expanded definition of the tort, conversion is limited to those intangible property rights customarily merged in, or identified with, some document." Id. (citation omitted). Such broad language appears to sanction conversion claims for any intangible property that is embodied in a document, see id., and this would support Thyroff's position. Weighing against this interpretation, however, is the fact that the performance in Ippolito was taped, and the taped performance formed the basis of the underlying, attempted conversion action. Id. at 5. If the court really were sanctioning a broad application of merger, it is unclear why it would not have applied it in Ippolito, yet it did not.
The Second Department has also explained that the conversion of intangible property is not actionable. See Star Contracting Co. v. McDonald's Corp., 201 A.D.2d 721, 608 N.Y.S.2d 327, 327 (1994); Rao v. Verde, 222 A.D.2d 569, 635 N.Y.S.2d 660, 661 (1995). In Rao, the conversion claim was based on medical records and patient lists. Id. at 661. Plaintiffs claimed conversion over the information contained in the lists, which defendants continued to use after they returned the documents to plaintiffs. Id. The court held that such intangible information could not be the subject of a conversion action. Id.
Rao is similar, but significantly distinguishable, from the instant case. Both cases are addressing the possible conversion of information. See id. However, Rao is not precisely on point because in that case, the documents were returned to plaintiffs, and the claim covered only the information contained in the documents. See id. In the instant case, the claim covers not only information but Thyroff's computer software programs into which the information was entered. Thus, a merger theory could support a claim of conversion in the instant case, while not running afoul of Rao, because unlike in Rao, the items arguably supporting merger have not been returned to plaintiff.
The Third Department also noted that there is no cause of action for the conversion of intangibles. See Waldron v. Ball Corp., 210 A.D.2d 611, 619 N.Y.S.2d 841, 843 (1994). This case seems most relevant to the instant case and weighs in favor of Nationwide. In Waldron, the court found non-cognizable a claim for the conversion of medical records. Id. Waldron is arguably distinguishable because it appears that the court's rationale in that case focused on plaintiff's lack of a possessory interest in the records, while in the instant case, Thyroff's possessory interest is assumed for the purposes of defendant's motion to dismiss.
Thyroff bases his appeal primarily on a New York, trial-court case, Shmueli v. Corcoran Group, 9 Misc.3d 589, 802 N.Y.S.2d 871 (N.Y.Sup.Ct.2005). In that case, the court specifically held that computerized lists can form the basis of a conversion action, reasoning that "electronically written `documents' should not be treated with less dignity of ownership for conversion purposes, than ink written `documents.'" Id. at 592-93 & n. 4, 802 N.Y.S.2d 871. Because this issue has not been definitively resolved by the New York Court of Appeals, we can not be certain. The issue is dispositive in resolving the instant case. We therefore certify to the New York Court of Appeals the question of whether electronic data, computer programs, or electronic data saved in computer programs can support a claim for conversion under New York law.
The district court dismissed Thyroff's breach-of-contract claim on summary judgment after holding that defendants breached neither the AA nor AOA by preventing Thyroff from accessing policyholder information. We find the dismissal of this claim proper.
In support of his breach-of-contract claim, Thyroff relies on section 11(f) of the AA in conjunction with the implied covenant of good faith and fair dealing, see 511 West 232nd Owners Corp., 98 N.Y.2d at 153, 746 N.Y.S.2d 131, 773 N.E.2d 496 (stating that all contracts under New York law include this covenant), arguing that Nationwide violated this when it deprived Thyroff of the policyholder information that he needed to compete. To support his position, Thyroff cites to non-binding precedent in which other courts have interpreted 11(f) of the AA as permitting competition.3 See Thyroff's Opening Br. at 28-29. Thyroff spends much of his brief arguing that the AA does not vest in Nationwide an ownership right to control the policyholder information. This may be true, but that does not resolve the issue of whether Nationwide owed Thyroff a contractual obligation not to seize its policyholder information without first providing Thyroff an opportunity to duplicate it.
The cases to which Thyroff cites in support of his position are inapposite. See id. They are cases in which Nationwide was attempting to sue its agents for using policyholder information, and the courts held that it could not. See, e.g., Nationwide Mut. Ins. Co. v. Bland, 2003 WL 23354137, **1-2 (D. Conn. Mar.30,2003).4 They were not cases like the instant case in which an agent was suing Nationwide for breach of contract for failing to provide access to the information.
Thyroff also cites to M/A-COM Security Corp. v. Galesi, 904 F.2d 134, 136 (2d Cir. 1990) (per curiam), to support his position that the implied covenant of good faith and fair dealing prevented Nationwide from seizing the policyholder information. In Galesi, we stated that New York law implies a covenant of good faith and fair dealing, "pursuant to which neither party to a contract shall do anything which has the effect of destroying or injuring the right of the other party to receive the fruits of the contract." Id. However, this covenant only applies where an implied promise is so interwoven into the contract "as to be necessary for effectuation of the purposes of the contract." Id. For this to occur, a party's action must directly violate "an obligation that may be presumed to have been intended by the parties." Id. However, "the implied covenant does not extend so far as to undermine a party's general right to act on its own interests in a way that may incidentally lessen the other party's anticipated fruits from the contract." Id. (internal quotation marks omitted).
Thyroff has failed to point to any provision of either the AA or AOA that, even if read together with the implied covenant of good faith, imposes an affirmative obligation on Nationwide that it breached. The district court's grant of summary judgment on Thyroff's breach-of-contract claim is therefore affirmed.
For the foregoing reasons, we affirm the decision of the district court dismissing Thyroff's breach-of-contract claim on summary judgment, and we certify the following determinative issue of state law to the New York Court of Appeals pursuant to Second Circuit Local Rule § 0.27 and New York Court of Appeals Rule § 500.27: Is a claim for the conversion of electronic data cognizable under New York law? The Court of Appeals may, of course, reformulate or expand this question as it wishes. In particular, although this opinion treats Thyroff as the owner of the policyholder information, Thyroff's personal records, and his personal computer programs on the AOA, the New York Court of Appeals is free to address who it believes is the proper owner of this information. It is hereby ORDERED that the Clerk of the Court transmit to the Clerk of the New York Court of Appeals a Certificate in the form attached, together with a copy of this opinion and a complete set of the briefs, appendices, and record filed by the parties in this Court. This panel will retain jurisdiction to decide the case once we have had the benefit of the views of the New York Court of Appeals, or once that court declines certification. Finally, we order the parties to bear equally any fees and costs that may be requested by the New York Court of Appeals.
(1) Is a claim for the conversion of electronic data cognizable under New York law?
The Ninth Circuit has applied the merger rationale to enable a conversion claim for an internet domain name See Kremen v. Cohen, 337 F.3d 1024, 1029-32 (9th Cir. 2003). In so doing, the court likened domain names to stock certificates, extending the merger doctrine from the former to the latter. Id. at 1030-31. The Ninth Circuit was of course interpreting California law while the instant case involves New York law, but Kremen provides one possible option for addressing the issue raised in the instant case.
One of the cases to which Thyroff cites,Nationwide Mutual Insurance Co. v. Fleming, No. 99-1417 (W.D. Pa. Oct. 2, 2001), is unpublished, not available electronically, and was not included along with Thyroff's briefs. See Thyroff's Opening Br. at 28, 32-35. We therefore assume that Thyroff's characterization of this cases in his brief is commensurate with his accurate characterization of Bland, which simply supports the conclusion that Nationwide, as plaintiff, cannot necessarily obtain relief because of 11(f) because the AA does not clearly state that Nationwide owns the policyholder information. See Bland, 2003 WL 23354137, **3-4.
In his reply brief, Thyroff also contends that section 12 of the AA supports his claim See Thyroff's Reply Br. at 13. That provision is practically identical to section 11(f), except it applies if the AA is cancelled within five years from the date of an agent's first contract with Nationwide. Thus, for the same reasons we reject Thyroff's arguments regarding section 11(f), we similarly reject them as they apply to section 12.