Jewish plaintiff alleged that her stepson, a member and employee of Jews for Jesus, had caused to be published in a Jews for Jesus newsletter false statements to the effect that plaintiff had converted to Christianity. The newsletter was posted on the internet, where it was seen by a relative of plaintiff. The <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />Florida Supreme Court declined to recognize the tort of false light. However, the Court held that Florida recognizes a cause of action for defamation by implication and held that a communication can be considered defamatory if it “prejudices” the plaintiff in the eyes of a “substantial and respectable minority of the community,” as set forth in comment e of the Restatement (Second) of Torts § 559.
Plaintiff, who, along with her late husband, led a traditional Jewish life, alleged that her stepson, a member and employee of Jews for Jesus, had caused to be published in a Jews for Jesus newsletter statements to the effect that plaintiff had converted to Christianity. The newsletter was posted on the internet, where it was seen by a relative of plaintiff. Plaintiff denied that the events described in the newsletter took place and claimed that Jews for Jesus falsely, and without her permission, portrayed her as a convert to the organization. Plaintiff sued Jews for Jesus.
In Case # 2658, the Florida District Court of Appeal held, inter alia: (1) The trial court did not abuse its discretion in striking redundant, immaterial, or scandalous content from the complaint. The stricken paragraphs detailing the theological animosity between the plaintiff and Jews for Jesus were redundant, bellicose, and unnecessary to state the causes of action alleged.
(2) The First Amendment did not bar plaintiff’s tort actions. This was not a case where plaintiff was a member of the defendant and hence the court would not have to become involved in an evaluation of the interaction between a church and its parishioner.
(3) The complaint failed to state a cause of action for defamation, because the “common mind” reading the newsletter would not have found plaintiff to be an object of “hatred, distrust, ridicule, contempt or disgrace.” Under the “common mind” rule, the newsletter portrayed plaintiff in the most positive light. The newsletter was intended for group members who would have viewed the information (i.e., plaintiff’s conversion) in a positive light. The posting of the newsletter on a Jews for Jesus internet site was similarly addressed to an audience with an interest in the group’s message.
The District Court of Appeal refused to adopt the approach of Comment e to section 559 of the Restatement (Second) of Torts that language need not prejudice the plaintiff in the eyes of a majority of the community (here being defined as Christians, or the Jews for Jesus community, to whom the newsletter was primarily addressed) to be defamatory, but is defamatory if the plaintiff is prejudiced in the eyes of a substantial and respectable minority of the community (here defined as the Jewish community, a member of whom saw the posting on the internet). As noted infra, the Florida Supreme Court disagreed with the District Court of Appeal and held that Florida recognizes a cause of action for defamation by implication and that a communication can be considered defamatory if it “prejudices” the plaintiff in the eyes of a “substantial and respectable minority of the community,” as set forth in comment e of the Restatement (Second) of Torts § 559.
(4) The District Court of Appeal held that the newsletter publication fell short of conduct required to support the tort of intentional infliction of emotional distress. The language in question occurred in a praise report primarily intended for the eyes of like-minded individuals who would view the subject matter in a positive light. The subjective response of plaintiff, the target of the defendant’s conduct, did not control the question of whether the tort occurred.
Although the District Court of Appeal said that were it writing on a blank slate it would be inclined to reject false light invasion of privacy as a recognized tort, it felt constrained by what it believed to be the implicit recognition of the tort by the Florida Supreme Court and by its own previous decisions. However, in light of what it perceived to be uncertainty in the area, the District Court of Appeal certified to the Florida Supreme Court the question: “Does Florida recognize the tort of false light invasion of privacy, and if so, are the elements of the tort set forth in section 652E of Restatement (Second) of Torts?” As noted infra, the Supreme Court answered this question in the negative.
The parish church of All Saints Protestant Episcopal Church held its real and personal property in trust for the benefit of the Episcopal Diocese of Rochester and the Protestant Episcopal Church of the United States of America (the “National Church”), such that upon the parish’s separation from the Rochester Diocese its property reverted back to the Rochester Diocese or the National Church.
Home schooling versus public school where parents sharing legal custody cannot agree.
Christian newsletter/publication plan through which medical costs were voluntarily spread among its Christian subscribers did not constitute an insurance contract and the plan was therefore not subject to regulation by the state. Further, Kentucky law excluded religious publications such as the one in issue from regulation under the Insurance Code.
The American Evangelistic Association (AEA) and the Christian Care Ministry (CCM) distributed Medi-Share, a publication designed to help subscribers with medical expenses. To join the Medi-Share plan a prospective subscriber had to affirm and verify his/her commitment to Christianity. Upon acceptance, subscribers had to pay a monthly subscription fee. When subscribers submitted a request for financial assistance with their medical expenses, Medi-Share created a subaccount, similar to an escrow account, for the claim. Donors sent contributions directly to Medi-Share, which placed the donations in the subaccount created for the specific claim. Medi-Share did not guarantee that any request would be matched by donors and subscribers were warned that Medi-Share was not an insurance policy and did not guarantee payment of any claim; it merely facilitated the donation process. The Medi-Share plan through which medical costs were voluntarily spread among its Christian subscribers did not constitute an insurance contract under Ky. Rev. Stat. § 304.1-030 and the plan and its sponsors were not guilty of engaging in the unauthorized sale of insurance. Although there were many similarities between the Medi-Share plan and the business of insurance (for which see the court’s opinion), the plan did not constitute insurance under Kentucky Law because all risks and obligations to pay ultimately remained with the subscriber; there was no distribution of risk between the plan and its subscribers. Further, the majority was of the opinion that Kentucky law excluded religious publications such as Medi-Share from regulation under the Kentucky Insurance Code. See Ky. Rev. Stat. § 304.1-120.
The concurring opinion, although strongly urging the legislature to consider adopting legislation regulating the form of health care protection provided by such plans as Medi-Share, reluctantly agreed with the majority’s holding that Medi-Share was not insurance under the current statutory definition, and hence not subject to regulation. However, the concurring opinion disagreed with the majority’s dicta that even if Medi-Share were deemed insurance under Ky. Rev. Stat. § 304.1-030, it would be exempt from state regulation because it met the statutory requirements of a religious publication. However, because Medi-Share was not insurance under the current statutory definition, whether Medi-Share qualified for the religious publication exemption contained in KRS 304.1-120 was a moot issue.
Father – who contractually agreed with his ex-wife to raise the parties’ children in the “Protestant” faith, but who changed his church membership from Southern Baptist to Mormon and who exposed the children to his Mormon faith – was held in contempt for failing to follow his express agreement with his ex-wife, which agreement had been incorporated in the divorce decree.
Plaintiff employee asserted that various “religious displays” in the Bursar’s Office at a city college constituted a governmental endorsement of religion in violation of the establishment clause. Plaintiff also asserted that defendants retaliated against him for his complaints about the aforementioned religious displays and violated Title VII by allowing a co-worker to leave work without loss of pay or leave time in order to attend church functions while criticizing plaintiff for leaving work early.
Entitlement of Catholic registered student organizations (RSO) at the University of Wisconsin to funding from student fees fund for activities considered by the university to be worship, proselytizing or sectarian religious instruction.
Registered student organizations (RSOs) at the University of Wisconsin in Madison were eligible to apply for grants from the student government. The grant money was derived from mandatory student activity fees deposited into the General Student Services Fund (GSSF). Once an RSO’s proposed budget was approved by the student government, which applied certain “eligibility criteria” established primarily by the student government, the proposed budget had to go to the University chancellor who decided whether to recommend to the Regents that the budget be included in the University’s budget and then the budget was sent to the Regents for final approval. When an RSO’s budget was approved, the RSO did not receive the budget monies in advance. Instead the funding was distributed on a reimbursement basis by submitting receipts and invoices for activities listed in the budget.
In addition to challenging the University’s funding decisions, RCF contended that one component of the University’s GSSF eligibility criteria was unconstitutionally vague.
In Case # 3087, U.S. District Court Judge John C. Shabaz granted a preliminary injunction enjoining the University “from enforcing any policy that prohibits or prevents plaintiffs from applying for or obtaining reimbursement for activities listed in plaintiffs’ 2007-08 approved budget because the activities are or involve religious speech considered prayer, worship and/or proselytizing.” Judge Shabaz held that plaintiffs had shown a reasonable likelihood of success on the merits of their claim that their First Amendment free speech rights had been violated. Judge Shabaz said that the university’s mandatory fee system created a limited public forum in which the principles of viewpoint neutrality had to be respected. Here defendants were refusing to reimburse plaintiffs for certain activities of religious expression and/or speech based solely on the religious nature of the speech. Judge Shabaz rejected defendants’ defense that funding religious speech considered prayer, worship and/or proselytizing would violate the Establishment Clause. He commented that the student fee fund was open and available to a diverse list of other groups and plaintiffs could not be discriminated against on the basis of their viewpoint. In addition, Judge Shabaz said that defendants’ practice of examining and interpreting plaintiffs’ activities to determine if they were indeed prayer, worship and/or proselytizing ran the risk of fostering a pervasive bias or hostility toward religion, which could undermine the very neutrality the Establishment Clause required. Moreover, mandatory segregated student fees paid to a university and provided to student groups is not speech of the university or its agents. Subsidized student organizations at public universities are engaged in private speech, not spreading state-endorsed messages. Judge Shabaz said that RCF, as a subsidized student organization engaged in private speech at a public university, would not be assumed to be a mouthpiece for the university. Providing monies from mandatory segregated student fees to student groups, even religious student groups, does not make the groups’ speech the university’s speech, i.e. government speech.
As noted, plaintiff had also challenged the standards used by the student government in deciding whether to recommend approval of an RSO’s funding request as too vague and as granting the student government unbridled discretion. Here, the court denied plaintiffs’ request for a preliminary injunction.
The case was reassigned from Judge Shabaz and eventually randomly assigned to District Judge Lynn Adelman who authored the present opinion. On the parties' cross-motions for summary judgment, Judge Adelman held that the Establishment Clause did not compel the University to categorically exclude worship, proselytizing or sectarian religious instruction from its segregated fee forum. However, nothing in the Constitution required the University to fund all such activities. The question was whether or not such activities were outside the purposes of the forum. The purpose of the student fund forum was to sustain an open dialogue for the purpose of ensuring that students have the means to engage in dynamic discussions of philosophical, religious, scientific, social, and political subjects in their extracurricular campus life. Speech that was not “dialogue,” or “discussion,” or “debate” was not within the boundaries of the program of financially-supported student expression that the University created.
The issue in the present case was not whether activities that could reasonably be labeled in the abstract as worship, proselytizing or sectarian religious instruction served the forum’s limited purposes, but whether the specific activities that RCF actually engaged in served such purposes. Worship, proselytizing and sectarian religious instruction, and dialogue, discussion and debate, are not mutually exclusive. An activity can integrate elements of worship and discussion, proselytizing and debate, and instruction and dialogue. An activity that includes some worship cannot be excluded on the ground that it is not “dialogue, discussion or debate” if that activity in fact includes some dialogue, discussion, or debate. In short, before excluding an activity from the segregated fee forum pursuant to a content-based distinction, the University had to explain specifically why that particular activity, viewed as a whole, was outside the forum’s purposes. However, the court noted that in deciding how to best utilize a finite amount of segregated fees, the University will inevitably have to make funding decisions that depend on value judgments that cannot be explained with absolute precision. It cannot fund all activities that serve the intentionally broad purposes of the forum, and thus it will have to decline to fund some activities that might in some sense do so. In deciding whether to fund a particular activity, the University is entitled to assess the degree to which the activity would further the purposes of the forum. In Part II.A.3 of her decision Judge Adelman provides an important explication of a number of the criteria that the University may use in deciding not to fund an activity that fits within the purposes of the forum and the reader is strongly urged to consult the court’s opinion.
Although the University may adopt reasonable, content-based restrictions that reserve segregated fee funding for those activities that in its judgment best serve the forum’s limited purposes, Judge Adelman found that the University had not established any reason that justified its exclusion of RCF’s activities in 2006-07 and 2007-2008. However, because labels such as worship, proselytizing or sectarian religious instruction were unhelpful and the University’s future funding decisions had to be made on a case-by-case basis, Judge Adelman found that it would not be in the public interest to enter a permanent injunction that compelled the University to fund, or prohibited the University from refusing to fund, any particular category of activity. Consequently, Judge Adelman dissolved the preliminary injunction issued by Judge Shabaz. Instead, Judge Adelman said that a remedy that better balanced plaintiffs’ First Amendment interests against the University’s need to make funding decisions was a declaratory judgment stating that the University may not categorically exclude worship, proselytizing or sectarian instruction from segregated fee funding unless it does so pursuant to a rationale that is reasonable in light of the purposes of the forum and viewpoint neutral.
Judge Adelman denied plaintiffs’ request for monetary relief to compensate them for RCF’s non-reimbursed 2006-07 and 2007-08 expenditures, as well as their request for a refund of the segregated fee payments made by the student-plaintiffs during the 2006-07 and 2007-08 academic years. Plaintiffs could only obtain monetary damages against those University defendants sued in their personal capacities and those defendants were entitled to qualified immunity. See court’s opinion for details.
A public library made its meeting rooms available to the public, free of charge, for cultural activities and discussion of public questions and social issues. However, its meeting room policy provided that: “The use of the meeting rooms for commercial, religious or political campaign meetings is not permitted. However, committees affiliated with a church (such as a church board of trustees) will be allowed to use the meeting rooms provided no religious services are involved.” Although the policy stated that religious meetings were not permitted in the meeting rooms, the Library did not enforce this policy, and permitted a wide array of religious meetings; however, the Library consistently enforced its other use restrictions, including the prohibition of religious services. Plaintiff, a nonprofit charitable, educational and religious corporation, which strove to promote Judeo-Christian moral values for civil government, sought to use one of the Library’s meeting rooms for a seminar entitled “Politics in the Pulpit,” to be held just prior to the primary election in Ohio. Although stating that no “religious services” would be held, plaintiff indicated that its program would address the following topics: (1) A discussion of what the Bible teaches regarding involvement by Christians, Pastors, and Churches in politics; (2) A discussion of the current status of the law regarding political involvement by Christians, Pastor, Churches; (3) A time of prayer petitioning God for guidance on the Church’s proper role in the political process; and (4) A time of singing praise and giving thanks to God for the freedom we have in this country to participate in the political process.
This case concerns the right of a public high school student religious club to disseminate information about the club’s activities, including a weekly morning prayer event, through the school’s public address system and through the distribution of leaflets on the school’s campus.
Morning announcements were made each day to the entire student body of a public high school over a public address (PA) system which included a video feed. Any student club could submit a request for an announcement. Approved student club announcements were read over the PA system by a member of the school’s administration or student leadership. If the announcement included a video presentation, the video was shown during the announcement. Printed materials could be distributed on campus only after approval from the school administration. Even with prior approval, in order to control litter on the campus, the distribution of leaflets was limited to 17 designated days during the school year, during the 2 days of “club rush,” when student clubs solicited members, and during student elections held during one week in the Fall and two weeks in the Spring.
Plaintiff submitted a video to be played during the morning announcements. The video, which was created by Common Cause, a religious student club, sought to encourage students to participate in the club’s weekly prayer at the school flagpole which took place before the start of school. The video consisted of photographs of students participating in the weekly prayer activity. The audio portion of the video consisted of music with Christian-themed lyrics, albeit without express Christological references. However, a small symbol of a cross appeared on the screen. Defendants declined to show the videotape, contending that doing so would violate the Establishment Clause. On plaintiff’s motion for a preliminary injunction the court concluded that plaintiff established a probability of success on the merits of her Equal Access Act claim and ordered that defendants display the video at the same time and in the same manner as other student club promotional videos were displayed. The court found that plaintiff’s video was analogous to the promotional video for the “Young Democrats of America,” another school club, that defendants had allowed to be played. The court, after an extended analysis, found that providing the religious club access to the school’s PA system for promoting the club and its activities would not violate the establishment clause.
Plaintiff also sought to distribute a leaflet containing a cross inviting students to participate in the weekly prayer at the flagpole. School officials denied permission for distribution on the basis of the school policy allowing leaflet distribution only during club rush and election weeks. Defendants had no objection to distribution of the leaflet during said time frames. Plaintiff contended that defendants’ leaflet distribution policy violated her First Amendment rights because it limited distribution to only 17 days of the school year and vested unlimited discretion in the school administration to decline leaflets submitted for approval by students. On plaintiff’s motion for a preliminary injunction, the district court refused to enjoin defendants’ limitation of leaflet distribution to 17 days each year. Defendants’ policy restricting the distribution of leaflets to 17 days each year was found content neutral, as it applied to all student-created literature. The restriction was also reasonable in light of the purpose served by the forum. The court found that defendants’ littering concerns provided a reasonable basis for restricting the distribution of leaflets. See court’s opinion for details. The court also held that plaintiff had not shown that she was entitled to injunctive relief on defendants’ pre-approval policy.
The free speech rights of a public school kindergarten student, assigned to create a poster depicting ways to save the environment, were not violated when, prior to having his poster displayed along with those of other students, the teacher, with the approval of the principal and district superintendent, folded the poster so that a kneeling figure of Jesus could not be seen.
Plaintiff Antonio Peck, a public school kindergarten student, was assigned to make a poster depicting ways to save the environment. The student’s initial poster depicted a robed figure (described by the parties as “Jesus”) praying and other pictures with religious themes, accompanied by, inter alia, the handwritten words “the only way to save our world,” “prayer changes things,” “Jesus loves children,” “God keeps his promises,” and “God’s love is higher than the heavens.” Upon request by the school, plaintiff prepared a second poster. The second poster depicted children picking up trash and placing it in a trash can in front of a church, adults placing items in a recycling bin, the earth and clouds, and a kneeling, robed figure with a beard, taken by the teacher to represent Jesus. Prior to displaying the second poster in the school cafeteria along with other posters, the teacher folded the poster so that the kneeling figure of Jesus could not be seen.
In Case # 910, the district court held that the kindergarten classroom and the cafeteria wall where the children’s posters were exhibited were, as a matter of law, a non-public (or closed) forum and plaintiff’s First Amendment rights to freedom of expression and free exercise of religion were not violated. Nor, according to the district court, was the First Amendment’s establishment clause, or equal protection under the Fourteenth Amendment, violated. The Court of Appeals, without addressing the substantive issues, vacated and remanded the judgment of the district court on the ground that the district court had, sua sponte, converted defendants’ pre-answer motion to dismiss for failure to state a cause of action into one for summary judgment without affording plaintiff the opportunity for conducting discovery.
On remand, following discovery, the district court granted defendants’ motion for summary judgment as to all claims. On appeal, the Court of Appeals, in Case # 2057, vacated the district court’s dismissal of plaintiff’s free speech claim, but affirmed the summary judgment dismissal of plaintiff’s establishment clause claim. Plaintiffs abandoned their equal protection and free exercise claims on appeal.
As to the free speech claim, the Second Circuit, in Case # 2057, found that the undisputed facts showed that the school facilities, including Antonio’s classroom and the school cafeteria, were a non-public forum. In such a forum, the government may exclude a speaker (such as plaintiff student) if he wishes to address a topic not encompassed within the purpose of the forum. However, the government violates the First Amendment when it excludes a speaker “solely to suppress the point of view he espouses on an otherwise includible subject.” Addressing the nature of, and level of, constitutional protection to be accorded to the student expression represented by Antonio’s poster, the Second Circuit concluded that Antonio’s poster was school-sponsored speech and fell within the framework of Hazelwood School District v. Kuhlmeier, i.e., the school’s actions were justified so long as censorship of the student’s poster was reasonably related to legitimate pedagogical concerns. The poster was school-sponsored speech because, in addition to being displayed at a school-sponsored assembly, the poster was prepared by Antonio pursuant to a class assignment, an assignment that was given under highly specific parameters: to depict ways to save the environment and to reflect what had been taught in the kindergarten environment unit. The poster was indisputably part of the school curriculum, supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.
The relevant “pedagogical concerns” proffered by the School District were (a) that the portion of the poster depicting the robed figure was not responsive to the assignment; (b) that the placement of that image on the poster was not the student’s own work, but that of his mother; and (c) that showing the image risked creating the impression that the kindergarten environmental unit had included the teaching of religion. Unquestionably, these were all legitimate pedagogical concerns. And it did not matter that the teacher and principal may have incorrectly determined that the mother, rather than the student, was responsible for the poster’s content. The teacher and principal made a reasonable determination that the mother was responsible for the poster’s content and the Court of Appeals declined the invitation to assess the accuracy of this determination.
Nevertheless, the Court of Appeals found that there remained troubling questions of fact pertaining to the viewpoint neutrality of the school district’s action with respect to plaintiff’s poster. There were disputed factual questions, which could not be resolved on summary judgment, as to whether the second poster offered a “religious viewpoint,” and whether, if the poster had depicted a purely secular image that was equally outside the scope of the teacher’s environmental lessons, it would similarly have been censored. The school defendants argued that, even assuming that there was evidence that its decision was based on the viewpoint, rather than the content, of the poster, dismissal of the free speech claim was still proper because schools are permitted to discriminate on the basis of viewpoint – so long as such discrimination is, itself, reasonably related to a legitimate pedagogical interest. But although the First and Tenth Circuits had expressly held that educators may make viewpoint-based decisions about school-sponsored speech, the Second Circuit panel refused to join them and concluded that a manifestly viewpoint discriminatory restriction on school-sponsored speech is, prima facie, unconstitutional, even if reasonably related to legitimate pedagogical interests.
Two sets of plaintiffs – (i) an advocacy group for the homeless and hungry and (ii) a church and its pastor –challenged a City of Orlando ordinance requiring anyone conducting a “large group feeding” – defined as an event intending to attract, actually attracting, or likely to attract 25 or more people within the city’s Greater Downtown Park District – to first obtain a permit from the City and limiting the number of permits any group could receive within a 12 month period to two per park. Held: (1) The ordinance, as applied, violated the advocacy group’s free speech rights. (2) Although the ordinance did not violate the rights of the church and pastor under Florida’s Religious Freedom Restoration Act, it did violate their First Amendment free exercise rights. (3) The ordinance did not violate plaintiffs’ right to free assembly.
For more than a year, plaintiff Orlando Food Not Bombs (OFNB) and its members had been sharing food with the homeless and hungry at Lake Eola Park, the City of Orlando’s “signature” park, in order to draw attention to “society’s failure to provide food and housing to each of its members.” Lake Eola Park was within the Greater Downtown Park District (GDPD), a circular area extending out a 2 mile radius in all directions from City Hall. Plaintiff First Vagabonds Church of God and its pastor, as part of their religious services and mission, also participated in the feeding of the homeless and hungry in Lake Eola Park.
Plaintiff church and pastor also held services catering to the homeless every Sunday in Langford Park, which was also located within the GDPD. Langford Park was ideal for plaintiffs’ purposes because it was centrally located adjacent to public transportation and provided a serene setting equipped with a pavilion, grill, potable water and restrooms.
Plaintiffs challenged the constitutionality of a recently enacted City ordinance, the Large Group Feeding Ordinance. The Ordinance required anyone conducting a “large group feeding” – defined as an event intending to attract, actually attracting, or likely to attract 25 or more people within the GDPD – to first obtain a permit from the City. The number of permits any group could receive was limited to two per park within the GDPD within a 12 month period. There were approximately 42 public parks within the GDPD, including Lake Eola and Langford parks. Because the number of permits any group could receive was limited to two per park within a 12 month period, to comply with the Ordinance, plaintiffs either had to limit their feeding services to twice per year, rotate them every third week to another park within the GDPD, or move them to a park outside of the GDPD. The apparent purpose of the Ordinance was to discourage the homeless from congregating in downtown Orlando, and more particularly, the Thornton Park and Lake Eola neighborhoods.
In Case # 3167, the district court refused to grant summary judgment dismissing the following claims: plaintiffs’ free assembly claim; the church’s and pastor’s claims based on Florida’s Religious Freedom Restoration Act and their claim under the free exercise clause of the First Amendment; and the OFNB plaintiffs’ as-applied free speech challenge to the ordinance. (Plaintiffs’ facial challenge to the Ordinance was held to be without merit because although the conduct regulated by the ordinance – a large group feeding – was, in the case of the OFNB plaintiffs, an expressive activity, a large group feeding is not, on its face, an expressive activity. ) The court granted summary judgment dismissing plaintiffs’ equal protection claim and their due process claim that the ordinance was unconstitutionally vague.
In Case # 3235, the district court held that the Ordinance did not violate Florida’s Religious Freedom Restoration Act (FRFRA). Although the Ordinance placed a burden on plaintiff church’s and pastor’s religious practice, the court found that the burden imposed was not “substantial” for purposes of FRFRA. In support of the argument that the Ordinance amounted to a substantial burden, plaintiffs produced some evidence that, given the limited means of communication and transportation available to the homeless, there was at least a possibility that the Ordinance’s limitations would prevent some members of the church congregation from learning of and traveling to a constantly changing venue within the GDPD. However, the district court found that the evidence showed that communication with the congregants was possible and transportation available to the members of the congregation. The evidence was that word of mouth had been an effective way of communicating to the members of congregation in the past and that several members of the congregation had access to cell phones and the internet. Furthermore, other forms of communication were available (i.e. flyers, posters, etc.). There was also evidence that transportation to other parks within the GDPD was not a problem.
In the present opinion, after reiterating that the group feedings held by OFNB qualified as expressive conduct under the First Amendment, in that they were intended to convey the message that society can and should provide food for all of its members, regardless of wealth, the district court held that Ordinance, while content neutral, violated the OFNB plaintiffs’ right to free speech, because the Ordinance did not further a substantial governmental interest. The court rejected the City’s argument that the Ordinance advanced the government’s interests in controlling crime, in controlling litter and excess garbage in the area, and in limiting overuse of the City’s parks. See court’s opinion for details. And even assuming that the Ordinance did further a substantial governmental interest, the restrictions placed on plaintiffs’ First Amendment freedoms were much greater than that which were essential. Again, see the court’s opinion for details.
The district court also held that the application of the Ordinance violated the First Amendment free exercise of religion rights of the pastor and his church. While the court had previously held that plaintiffs failed to show that the Ordinance placed a “substantial burden” on their religious activity for purposes of Florida’s Religious Freedom Restoration Act, to succeed on their First Amendment free exercise claim plaintiffs were not required to show that the Ordinance placed a “substantial burden” on the exercise of their religion. To survive a First Amendment free exercise challenge, the Ordinance, as a content neutral law of general applicability, only had to have a rational basis. However, the district court found no rational basis for the Ordinance. The court held that none of the legitimate government interests proffered by the City were served by the Ordinance, which burdened, more than incidentally, the religious exercise of the pastor and his congregation. Therefore, application of the Ordinance violated the First Amendment free exercise rights of the pastor and his church.
A United Methodist Church was a remainder beneficiary under the terms of a testamentary trust. Because the Church was in existence when the Trust terminated upon the death of the trust beneficiary the remainder interest vested in the Church, even though, at the time of distribution, the Church was no longer in existence. Moreover, the Kansas East Conference of the United Methodist Church, as the parent entity of the Church, took the Church’s vested remainder interest upon its dissolution.
Father – excommunicated from the mother’s church and subject to shunning by church members – awarded legal custody of his two youngest children, with the right to make all major educational and religious decisions. The award of legal custody to the father was aimed at preventing the mother, who retained physical custody of the children, from taking the children to the church from which the father had been excommunicated and from sending the children to said church’s school, thereby interfering with the maintenance of a healthy relationship between the children and the father.
Parent of children in the California public schools whose religious belief was that religion and a belief in evolution are incompatible did not have standing to challenge, on the basis of the establishment clause, a website maintained by a state university which took the position that religion and a belief in evolution are not in conflict.
Plaintiff alleged that she was the parent of children in the California public schools and was actively involved in elections and debates about the selection of instructional materials for science classes and that to participate as an informed citizen in these elections, debates, and processes she used the website, “Understanding Evolution” developed and maintained by the University of California at Berkeley, a state University, and partially funded by a grant from the National Science Foundation. Plaintiff complained that the website violated the First Amendment establishment clause because the site endorsed the view that evolution did not conflict with properly understood Christian or Jewish religious beliefs. Plaintiff asserted that this position set up a preference for certain religious beliefs over others, as plaintiff’s view was that evolution and religious doctrine were in conflict. Plaintiff claimed that she was “offended” and made to feel like an “outsider” when she viewed the website.
In Case # 2235, the district court, after striking plaintiff’s prayer for “nominal” damages from the complaint on the basis of Eleventh Amendment immunity, proceeded to dismiss the complaint with prejudice for lack of both federal and state taxpayer standing. The issue of plaintiff’s taxpayer standing was not appealed.
In addition, the district court held that plaintiff failed to state a cognizable injury in fact. The district court said that plaintiff’s claim could not be analogized to those cases in which plaintiffs alleged an inability to use a public or municipal park because of an overt religious symbol or message placed in the public park. The district court said that there is a vast difference between a citizen’s inability to use a public park due to the presence of an overtly religious symbol, and a citizen’s viewing of a purportedly offensive website. The court said that it is simply inconceivable that the mere viewing of certain web pages that do no more than make plaintiff feel “offended” and like an “outsider” is sufficient to give rise to an injury in fact.
On appeal, the Ninth Circuit held that plaintiff’s action against the National Science Foundation (NSF) was moot, as the NSF funding had expired and was not likely to occur in the future.
The U.S. government was preliminarily enjoined from commencing or continuing construction of a 43,000 square acre Training Support Center south of Medicine Bluffs at the Fort Sill, Oklahoma military installation. Medicine Bluffs – a natural landform which was listed on the National Register of Historic Sites because of its historical importance, its role in the founding of Fort Sill, and its religious and cultural significance to Native Americans – was the focus of sacred Comanche traditional religious practices.
The southern approach to the Bluffs was the traditional route to ascend the Bluffs for Comanches making the trek to the peaks for spiritual purposes; camps were made there to support those who desired to ascend the Bluffs; sweat lodges were established along the southern approach; plants used for religious and healing practices were gathered among the trees and vegetation below and on the southern slopes of the Bluffs; and the unobstructed view of all four Bluffs was central to a spiritual experience of the Bluffs, as the number four had particular spiritual significance. The traditional religious practice of the Comanche people was an intensely private spiritual experience that was inextricably intertwined with the natural environment and traditional practitioners resisted disclosing the location of their particular individual sacred sites, and generally treated such information as confidential. The individual plaintiff testified that his traditional religious practice as it related to the Bluffs involved a physical and spiritual “centering” requiring him to stand at the precise location of the Training Support Center site.
Plaintiffs asserted two claims for relief: (1) a violation of the Religious Freedom and Restoration Act, 42 U.S.C. § 2000bb et seq., based on the allegation that construction of the Training Support Center at its current site substantially interfered with the exercise of plaintiffs’ religious beliefs; and (2) a violation of the National Historic Preservation Act of 1966 (NHPA), 16 U.S.C. § 470 et seq., based on the contention that defendants failed to make a reasonable and good faith effort to consult with the Comanche Nation to identify and resolve any adverse effects on Medicine Bluffs resulting from construction of the Training Support Center.
In granting the preliminary injunction to plaintiffs, the district court observed, inter alia, that plaintiffs established a substantial likelihood of success on the merits on both claims. As regards plaintiffs’ RFRA claim, the evidence showed that construction of the Training Support Center at its current location would impose a substantial burden on the traditional religious practices of the Comanche people in the area of the southern approach to the Bluffs. And although the defendants substantially demonstrated that the construction of the Training Support Center was in furtherance of a compelling governmental interest, the record was devoid of facts tending to demonstrate that construction of the Center on current location was the least restrictive means of furthering the compelling governmental interest. In fact, the evidence established that a much less restrictive alternative – constructing the Center at an alternate location – was not seriously considered by defendants.
Illinois nonprofit corporation which helped churches develop and train student leaders was not entitled to tax exemption for condominium office space. Plaintiff failed to establish by clear and convincing evidence that it used the property for “religious purposes” and that the property was not used primarily with a view to profit.
Plaintiff’s property was not used exclusively for religious purposes. There is a distinction between nonprofit organizations that engage directly in religious activities, such as worship, missionary work, and religious education, and secular organizations that merely supply religious entities with materials to conduct such activities. Here plaintiff, an Illinois nonprofit corporation that owned condominium office space, sent staff members to train and advise church youth to develop into student leaders of the church either at church sites or on religious trips. The materials distributed were written and produced by plaintiff. However, plaintiff submitted no evidence establishing the background of its employees, how they were formally associated with their clientele, or the qualifications of those who developed its curriculum. No evidence indicated that ministers, seminary graduates, or people with any religious training led the trips or taught in the churches. Plaintiff’s stated purpose was “to plan, organize, and lead short-term mission trips, within the United States and abroad, for high school and college age students”; its focus was on domestic and international trips, with a religious component, not on the education of individuals who either were in the process of becoming or had already become teachers, instructors, or professors of religious studies. The “purposes” section of plaintiff’s incorporation and bylaws stated nothing about religious educational studies or teaching youth about religious education as a career. Rather, the main focus of every one of plaintiff’s trips or “leadership training” events was teaching and learning “leadership” so that students could become the future leaders of the church. However, leadership training does not necessarily mean that it cultivates future pastors or ministers; leadership development is not per se a religiously imbued undertaking.
In action against defendant Yeshiva, a religious corporation, for specific performance of a contract for the sale of real property, defendant Yeshiva was directed to sell the subject real property to the plaintiff for the contract price of $ 185,000.
A school district program listing 40 “positive factors” that parents were encouraged, but not mandated, to “work to build” in their children listed as positive factor No. 19, “Faith community – Young person spends one or more hours per week in activities in a religious institution.” Plaintiffs’ complaint objecting to the program failed to state a claim under the establishment clause of the First Amendment.
Previously, a Virginia Circuit Court had held that breakaway Episcopal Church congregations, having split over doctrinal issues from the Protestant Episcopal Church in the Diocese of Virginia, the Protestant Episcopal Church in the United States of America (ECUSA), and the Anglican Communion associated with the Church of England through the See of Canterbury, could invoke Va. Code § 57-9(A) governing how property rights are to be determined upon the division of a church or religious society. The sole issue addressed in the court’s opinion had been whether Va. Code § 57-9(A), by its terms, could be invoked by the breakaway congregations. The court left unresolved issues relating to the constitutionality of § 57-9(A), the validity of the various votes taken by breakaway congregations to disaffiliate, and the merits of the ECUSA’s and the Virginia Diocese’s declaratory judgment actions claiming that that the continued occupancy, possession and use of church properties by the breakaway congregations resulted in a trespass, conversion and illegal alienation of such properties in violation of the Constitution and Canons of ECUSA and the Virginia Diocese, the deeds to such real property, and applicable Virginia law. Subsequently the Circuit Court ruled that § 57-9(A) was constitutional and did not violate the free exercise and establishment clauses of the First Amendment, the religious freedom provisions of the Virginia Constitution, the Equal Protection Provisions of the Fourteenth Amendment, or the Takings Clauses of the U.S. Constitution. Now the court ruled that application of § 57-9 in the instant case would not violate the Contracts Clause of the U.S. Constitution.
A. If a division has heretofore occurred or shall hereafter occur in a church or religious society, to which any such congregation whose property is held by trustees is attached, the members of such congregation over 18 years of age may, by a vote of a majority of the whole number, determine to which branch of the church or society such congregation shall thereafter belong. Such determination shall be reported to the circuit court of the county or city, wherein the property held in trust for such congregation or the greater part thereof is; and if the determination be approved by the court, it shall be so entered in the court’s civil order book, and shall be conclusive as to the title to and control of any property held in trust for such congregation, and be respected and enforced accordingly in all of the courts of the Commonwealth.
The Virginia the Diocese filed complaints against each of the CANA Congregations that had filed § 57-9 petitions, as well as complaints against three other CANA Congregations, alleging that “[t]he continued occupancy, possession and use of the properties of [the individual CANA Congregation churches] by [their Rectors] and the Vestry defendants have resulted in a trespass, conversion and illegal alienation of such properties in violation of the Constitution and Canons of The Episcopal Church [ECUSA] and the Diocese, the deeds to such real property, and applicable Virginia law.” ECUSA filed its own separate complaint against 11 CANA Congregations and their rectors, vestry members, and other leaders.
In Case # 3157, the sole issue addressed in the court’s opinion was whether Va. Code § 57-9(A), by its terms, could be invoked by the CANA congregations. In answering the question in the affirmative, the court, after a lengthy analysis of the applicable case law, held: (1) that the terms “church” and “religious society,” as used in § 57-9(A) applied to the Protestant Episcopal Church in the Diocese of Virginia, to ECUSA and the Anglican Communion. (2) The term “attached” as used in § 57-9(A) applied to the CANA congregations in that they were for purposes of the statute “attached” to the Virginia Diocese, to ECUSA, and to the Anglican Communion. (3) The term “branch,” as used in § 57-9(A) applied to, inter alia, CANA, and hence CANA, for purposes of the statute was to considered a “branch” of the Virginia Diocese, the ECUSA, and the Anglican Communion. (4) Most importantly, for purposes § 57-9(A) a “division” – i.e., a “split . . . or rupture in a religious denomination that involve[s] the separation of a group of congregations, clergy, or members from the church, and the formation of an alternative polity that disaffiliating members could join” – had occurred in a “church or religious society” to which the CANA Congregations were attached. Hence, by its terms § 57-9(A) applied to the present case and could be invoked by the CANA congregations.
Left unresolved by the court’s opinion in Case # 3157 were issues relating to the constitutionality of § 57-9(A). The court also did not address the validity of the various votes taken by the CANA Congregations to disaffiliate from the ECUSA and the Virginia Diocese. Finally, the court’s opinion did not address the merits of the ECUSA’s and the Diocese’s declaratory judgment actions. All these issues were still to be decided.
In Case # 3232, the court held that § 57-9(A) did not violate the free exercise and establishment clauses of the First Amendment, the religious freedom provisions of the Virginia Constitution, the Equal Protection Provisions of the Fourteenth Amendment, or the Takings Clauses of the U.S. Constitution. The court left for another day the question whether § 579(A) violates the rights of ECUSA and the Diocese under the Contracts Clause.
In the present opinion, the court held that application of § 57-9 in the instant case would not violate the Contracts Clause of the U.S. Constitution.
Statute of limitations barred claims for intentional infliction of emotional distress and negligent supervision against diocese arising out of sexual abuse of plaintiff 30 years before; neither the doctrine of fraudulent concealment or the discovery rule tolled the statute of limitations.
Official symbol of the City of Las Cruces, New Mexico, consisting of three crosses, as well as the use of a symbol very similar to the City’s seal on the school district’s maintenance vehicles, held constitutional. Sculpture located at the school district’s Sports Complex and a mural hanging in a Las Cruces elementary school, both incorporating the symbolism of the three crosses, also held constitutional. School district policy providing guidance to employees on “religion in the schools” held constitutional on its face and as applied.
In Case # 2649, the district court held that the official symbol of the City of Las Cruces, New Mexico, consisting of three crosses surrounded by a sunburst, did not violate the establishment clause. The symbol appeared on Las Cruces public property, including signs, flags, buildings (such as City Hall and the City library), official uniforms (such as those of the City’s police and firefighters), and vehicles. Moreover, the symbol appeared on public documents including the City’s letterhead, notices, maps, brochures, and advertisements. In some cases, the words “City of Las Cruces-For Official Use Only” attended the symbol. The court found that the choice of the symbol was driven by the name of the city, “The Crosses.” Although the exact circumstances surrounding the adoption of the symbol were unclear, the district court found that none of the putative designers of the symbol was motivated by a religious purpose and there was no evidence that the symbol was ever associated with a religious purpose.
In Case # 2650, plaintiff, a taxpayer who lived within the boundaries of the Las Cruces Public Schools (LCPS) and who had a child enrolled in a LCPS school, was held to have standing to assert against the LCPS and the Las Cruces School Board a number of claims relating to display of the ‘three crosses” by the school system.
Plaintiff’s first claim related to an emblem affixed to defendants’ fleet of, approximately 35 maintenance vehicles. The circular emblem featured a sunburst with three “Latin crosses.” Immediately surrounding this symbol was a blue band with thin, white, capital-letter text that read: “FOR OFFICIAL USE ONLY.” A second, exterior blue band featured larger capital-letter text that read: “LAS CRUCES PUBLIC SCHOOLS.” The School District asserted that it used the symbol to identify school district vehicles, in part because of the safety implications of having unauthorized or unidentified vehicles on school property. They submitted that the challenged “three crosses” emblem was used for the secular purpose of identifying its maintenance vehicles as belonging to LCPS and explained that the inclusion of three crosses in the emblem’s design was “hardly surprising” since Las Cruces, translated into English, meant “the crosses” and that the use of crosses to represent the city and community of Las Cruces was quite common and well known. However, in Case # 2650, the district court denied defendants’ motion for summary judgment on plaintiff’s vehicle emblem claim, because the court was unable to determine whether defendants’ “predominate” purpose regarding the emblem was secular. The court found that the record did not contain any admissible evidence regarding why, when, or by whom the emblem was first adopted by defendants. Nor was there any evidence that such information did not exist. The record provided no information about defendants’ efforts to trace the emblem’s origins and use by LCPS. Consequently, the district court said that the inquisitive, “reasonable observer” was left to wonder about the emblem’s history. The court was obligated to verify that defendants’ stated secular purpose was genuine, not a sham, and not merely secondary to a religious objective. The court recognized the possibility that evidence regarding the circumstances of defendants’ adoption of the emblem may no longer exist and that the lack of such evidence did not mean that defendants could not satisfy the purpose prong. But as this was a summary judgment proceeding, the burden was squarely on defendants, as the moving party, to come forward with admissible evidence as to its purpose. This they did not do.
Subsequently, the matter was tried before the court and although defendants’ research was not as exhaustive as the court would have expected, in Case # 2471, the court found that there was no historical evidence that suggested that anything other than defendants’ stated secular purpose precipitated the emblem’s adoption and its continued use on the motor vehicles. Plaintiff also did not prove that the emblem had the primary effect of endorsing religion or that it fostered excessive government entanglement. Accordingly, plaintiff failed to prove that LCPS’ maintenance-vehicle emblem violated the Establishment Clause, as a reasonable observer would “perceive [defendants] to be acting neutrally” toward religion in its use of the maintenance-vehicle emblem. See court’s opinion for details.
Plaintiff’s second claim addressed by the district court in Case # 2650 concerned a sculpture – depicting, inter alia, “three stylized crosses” – that was displayed at the LCPS Regional Sports Complex. The artwork was commissioned following a competitive design competition. The sculpture featured a 7.5 feet-diameter steel ring overlaid by three stainless-steel stylized crosses. The longest vertical beam of the three crosses was 8.396 feet long, extending slightly above and slightly below the ring. The two shorter vertical steel beams of the shorter crosses were situated entirely within the circle. The cross beam – measuring 2.885 feet in length – bisected all the three vertical beams. All four stainless steel beams comprising the three crosses were shiny and reflective. The bottom portion of the ring was symmetrically inscribed with Latin text that read, in all-capital letter text, “UNITAS, FORTITUDO, EXCELLENTIA,” meaning “unity, strength, and excellence.” The sculpture was mounted on the exterior, south wall of the football stadium. The district court held that defendants did not violate the Establishment Clause by selecting and displaying the Sports Complex sculpture and were entitled to summary judgment on this claim. Notwithstanding the fact that plaintiff’s claims arose out of a public school setting, the court analyzed the purpose and effect of the sculpture from the perspective of an objective, reasonable adult observer.
Plaintiff’s third claim was that LCPS Policy # 424, “Religion in the Schools,” providing guidance to LCPS employees “on the topic of religion in schools,” was unconstitutional on its face and as applied. In Case # 2650, the district court held that the Policy, as written, was constitutional and defendants were entitled to summary judgment dismissing plaintiff’s facial challenge to the Policy.
To the extent that plaintiff claimed the Policy was unconstitutional as applied to the maintenance vehicle emblem, the court withheld its decision pending trial on the constitutionality of that symbol. See supra. At the same time, the court found Policy # 424 constitutional as applied to the Sports Complex sculpture. See supra. As to plaintiff’s claim that Policy # 424 was unconstitutional as applied to a mural featuring three crosses hanging in an LCPS elementary school, the court stated that the record was presently inadequate to analyze the constitutionality of said display. For more on the mural, see infra.
In Case # 2471, the district court, after a bench trial, ruled on the constitutionality of Policy # 424, as applied to the emblem on the maintenance vehicles and to a permanent mural displayed inside the Booker T. Elementary School (BTW). The mural in question consisted of five tiled panels. The mural’s center panel depicted three crosses. The other panels depicted chile and chile fields, which were common in the Las Cruces vicinity; a yucca plant; drawings of the local mountain range; a Black child holding a book; and a drawing of Booker T. Washington, for whom the BTW school was named. A plaque noted that the mural was created by the students (third, fourth, and fifth graders) enrolled in a “Safe After School Program” run by a non-profit youth center, and which was funded by the U.S. Department of Education in partnership with the Las Cruces Public Schools. The plaque noted that the mural was created with the assistance of a noted visual artist and also identified the school principal and the lead teacher on the project. The mural, which was not accompanied by other artwork, was prominently displayed at BTW in a location selected by BTW students. The role of the aforementioned visual artist was to facilitate the students’ ideas and help create the artwork; he did not generate the artwork’s design. All of the images incorporated in the mural, including the crosses, were consistent with either the Las Cruces area’s geography, culture, and history, or BTW. The mural’s design did not require School District approval. The principal and the project’s Lead Teacher, who were subject to Policy # 424, provided site-based management and oversight of the mural created by the BTW students. Defendants’ stated secular purpose in displaying the mural was to provide educational assistance to students enrolled in the after-school program, which provided “latch-key” children with an educational environment after school and on weekends.
In Case # 2471, the district court, after the bench trial, held that plaintiff did not prove that the mural lacked a genuine, secular purpose; did not prove that the mural’s creation or display had the primary effect of endorsing religion; and did not prove that the mural’s creation or display fostered excessive government entanglement. Thus Policy # 424, which was constitutional on its face, was also constitutional as applied to the mural.
The district court also held that Policy # 424 was constitutional as applied to the maintenance-vehicle emblem.
As a threshold matter, the Tenth Circuit held that plaintiffs had standing to mount the above described challenges. One plaintiff was a resident of the Las Cruces area and a parent of a student in the Las Cruces public school system. He sued both the City and the School District. He alleged that the City’s use of its symbol directly affected him because of its conspicuous, public use. The essence of his claim against the school district was that he suffered a cognizable injury under the Establishment Clause because the district’s actions infringed on his right to direct the religious education of his daughter, thereby directly violating his First Amendment rights.
Applying the Lemon test as modified by Justice O’Connor’s endorsement test, and viewing the actions of the defendants through the eyes of an “objective observer,” the Tenth Circuit affirmed the district court’s holdings that the seal of the City of Las Cruces, the use of a symbol very similar to the City’s seal on the school district’s maintenance vehicles, the sculpture located at the school district’s Sports Complex, the mural, and Policy # 424 were all constitutional.
Sexual abuse; statutes of limitations; tolling provision for “insanity”; New York law, CPLR 208; operation of statute.
Noise ordinance forbidding transmission of noise beyond 75 feet and ordinance creating an eight-foot “bubble zone” around individuals located within a 100-foot radius of an abortion clinic did not operate to violate the First Amendment free speech and free exercise rights of an anti-abortion protestor, or his rights under Pennsylvania’s Religious Freedom Protection Act.
Plaintiff’s action to enjoin enforcement of the federal and State of Iowa controlled substances acts against his religious use of marijuana dismissed.
Court dismisses plaintiff’s claims against pastor for breach of fiduciary duty and intentional infliction of emotional distress arising out of defendant’s alleged revelation to congregation of plaintiff’s criminal record.
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Periodically review the terms of the plan regarding hardship withdrawals, any explanation of hardship withdrawals in the plan’s summary plan description, and the hardship withdrawal forms used by your TPA to ensure that the rules for hardship withdrawals are described accurately.
What is your TPA’s documentation process?
Confirm with the plan’s TPA that a process is in place to request proper documentation from participants to substantiate a hardship distribution, and also that a process is in place to retain this documentation (in paper or electronic format).
Note that proper documentation is required even if the plan follows the safe harbor standards for hardship withdrawals as set out in the regulations under Code §401(k) (“Safe Harbor Hardship Withdrawals”). The IRS recently updated its Internal Revenue Manual (IRM) to include substantiation guidelines issued in 2017 for auditors examining whether a Safe Harbor Hardship Withdrawal is “deemed to be on account of an immediate and heavy financial need.” While the IRM is not formal guidance, it reiterates the importance of requesting and retaining participants’ substantiation of the need for a hardship withdrawal, because the IRS is likely to ask for this information on audit.
Require participants to provide either source documents to support the hardship withdrawal request (e.g., estimates, contracts, bills and statements from third parties) or a summary of the source documentation.
Certification by the participant that the information provided is true and accurate.
The participant is required to preserve source documents and to make them available at any time, upon request, to the plan sponsor or TPA.
Plan sponsors may want to consider that, while summary documentation might be convenient, plan sponsors will then be relying on participants to retain source documentation which might be requested by the IRS on audit.
How will your TPA change its hardship withdrawal review procedures in light of recent legal changes?
Both the Tax Cuts and Jobs Act and the Bipartisan Budget Act include changes that impact hardship withdrawals. Plan sponsors should discuss with their plans’ TPAs what changes will be made to hardship withdrawal administration in light of these changes in the law.
Effective January 1, 2018, the casualty loss deduction available to taxpayers is restricted to those losses attributable to a federally declared disaster. This means that Safe Harbor Hardship Withdrawals to pay expenses to repair a participant’s principal residence for deductible casualty loss damage are limited to circumstances in which the property damage results from a federally declared disaster.
Note: This change impacts hardship withdrawals from any plan that uses the casualty loss deduction as a determination of hardship (i.e., plans that fully incorporate the Safe Harbor Hardship Withdrawal rules). These plans should be reviewed to confirm whether an amendment is needed (e.g., an amendment might be needed if the decision is made to depart from the Safe Harbor Hardship Withdrawal rules for casualty loss hardship, in order to have more flexibility to approve hardship withdrawals due to casualty losses other than those attributable to federally declared disasters).
Participants will no longer be required to exhaust the opportunity to take loans under the plan (or presumably other plans of the same employer) before receiving a hardship withdrawal.
Participants will be permitted to take hardship withdrawals from the participant’s elective deferral contributions, QNECs, QMACs and earnings (including post-1988 earnings on elective deferrals).
Note: It is unclear whether this change will apply to Code §403(b) plans, since the §403(b) regulations incorporate the §401(k) regulations by reference but (i) specifically limit hardship distributions to elective deferrals, and (ii) prohibit hardship withdrawals of income attributable to elective deferrals from a §403(b) plan annuity contract. Sponsors of §403(b) plans may want to wait for additional IRS guidance before implementing this change.
The Treasury Secretary is directed to remove from the Safe Harbor Hardship Withdrawal rules the requirement that the participant’s deferral contributions to all plans maintained by the employer must be suspended for six months following the withdrawal.
Note: More guidance is needed on these changes – including whether a plan sponsor can continue to rely on the Safe Harbor Hardship Withdrawal rules without amending its plan to provide for the above changes, and how the elimination of the six-month suspension requirement will apply to a participant who is in the middle of a suspension period when the changes become effective.
To the extent plan amendments are needed, sponsors of individually designed plans will have until the end of the plan’s remedial amendment period (two years after the changes are listed on the IRS Required Amendment List) to adopt such amendments.
Has your plan implemented any of the relief provisions granted with respect to hardship withdrawals for participants affected by natural disasters in 2017?
Applies to “qualified individuals” – participants who sustained an economic loss due to Hurricanes Harvey, Irma or Maria, or due to the California wildfires, whose principal place of abode was located in the disaster area on the applicable date(s) specified in the Bipartisan Budget Act, and who request plan distributions during the applicable time period(s) covered by the relief. The relief permits a qualified individual to take a distribution of up to $100,000 (in total from all the participant’s 401(k), 403(b) and 457(b) plan accounts and IRAs), regardless of the reason for the distribution. In addition, the participant is not required to have taken all plan loans or other available distributions, and special taxation and recontribution rules apply. Additional relief applies to participants who took plan withdrawals to purchase or construct a principal residence in one of the disaster areas during the applicable time period(s) covered by the relief.
Plans are not required to offer this special disaster relief, but if the relief is provided, plans must be amended by the last day of the first plan year beginning on or after January 1, 2019 (January 1, 2021 for governmental plans).
Applies to qualified individuals, as well as participants whose place of employment was in the disaster area or whose child, parent, grandparent or other dependent lived or worked in the disaster area on the applicable date(s) specified in the IRS relief guidance, and who take hardship withdrawals during the applicable time period(s) covered by the relief. The relief allowed plans to permit withdrawals for reasons beyond the Safe Harbor Hardship Withdrawal reasons, but did not relax the requirement for a participant to take all plan loans and other available distributions before receiving a hardship withdrawal.
If the plan did not include a hardship withdrawal provision but provided for these withdrawals in accordance with the relief, the plan must be amended by the last day of the plan year that begins after December 31, 2017. Otherwise, plans do not have to be amended to provide this relief.


text:
The Complainant is WhatsApp Inc. and Instagram, LLC of Menlo Park, California, United States of America (“United States”), represented by Hogan Lovells (Paris) LLP, France.
The Respondent is Naim Wekking of Ambala, Haryana, India / Jack Worli of Mahim (West), Maharashtra, India.
The disputed domain names <whatappvideoonline.com> and <ɪnstagram.com> [xn--nstagram-9ud.com] are registered with Name.com, Inc. (Name.com LLC) and GoDaddy.com, LLC (the “Registrars”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 18, 2019. On January 21, 2019, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On January 21 and 22, 2019, the Registrars transmitted by email to the Center their verification response confirming that the Respondents are listed as the registrant and providing the contact details.
The Center appointed Ada L. Redondo Aguilera as the sole panelist in this matter on February 20, 2019. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainants in this administrative proceeding are two companies: WhatsApp Inc., an American corporation with its principal place of business in California, United States, and Instagram, LLC, which also has its principal business place in California, United States.
Both of the Complainants are companies that are wholly-owned subsidiaries of Facebook, Inc. and argue that as one of the reasons why they have jointly filed the Complaint and submitted in these proceedings a request for consolidation of their dispute.
The Complainants also requested for consolidation of the Respondents and claim that both identified individuals whom appear as holders of the disputed domain names, act as the same person or with the same interests. In order to obtain that consolidation, the Complainants presented WhoIs information demonstrating that the Respondent for the domain name <whatappvideoonline.com.com> is Jack Worli, an individual based in India (the First Respondent), and the Respondent for the disputed domain name <ɪnstagram.com> [xn--nstagram9ud.com] is Naim Wekking, also an individual based in India (the Second Respondent).
According to the Complainant, there is a connection between the First and Second Respondents. The Complaint argues that they are either one and the same person or acting jointly, and for reasons of fairness and equity, the Complainant submits that it is justified in bringing a single Complaint against the two Respondents and that they should be treated as one and the same.
<ɪnstagram.com> [xn--nstagram-9ud.com] registered on July 21, 2018.
At the time of the filing of the Complaint, the disputed domain names were being used for phishing schemes and to spread malware. Currently, the disputed domain name <whatappvideoonline.com.com> resolves to a pay-per-click (“PPC”) website and the disputed domain name <ɪnstagram.com> [xn--nstagram-9ud.com], does not resolve to an active website.
The registrar with which the disputed domain name <whatappvideoonline.com.com> is registered is GoDaddy.com, LLC, and the registrar with which the disputed domain name <ɪnstagram.com> [xn--nstagram-9ud.com] is registered is Name.com, Inc.
The Complainants have provided evidence that they are the owners of their trademarks, including the trademarks WHATSAPP and INSTAGRAM (e.g. United States reg. no. 3939463 for WHATSAPP, registered on April 5, 2011; and, United States reg. no. 4146057 for INSTAGRAM, registered on May 22, 2012).
The Respondents were notified by the Center of this UDRP proceeding and did not answer.
The Complainants have asserted that the three elements required under paragraph 4(a) of the Policy for a transfer of the two disputed domain names are present in this case.
The Rules, paragraph 3(c), contemplate that a complaint may relate to more than one domain name, provided that the domain names are arguably registered by the same domain name holder, while paragraph 10(e) also gives panels the authority to consolidate multiple domain name disputes. In assessing whether a complaint may be filed by multiple complainants, as in this proceeding, panels consider whether (i) the complainants have a specific common grievance against the respondent, or the respondent has engaged in a common conduct that has affected the complainants in a similar fashion, and (ii) it would be equitable and procedurally efficient to permit the consolidation.
Where a complaint is filed against multiple respondents, panels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties. Procedural efficiency would also underpin panel consideration of such a consolidation scenario.
Panels have considered a range of factors, typically present in some combination, as useful to determining whether such consolidation is appropriate, such as similarities in or relevant aspects of (i) the registrants’ identity(ies) including pseudonyms; (ii) the registrants’ contact information including email address(es), postal address(es), or phone number(s), including any pattern of irregularities; (iii) relevant IP addresses, name servers, or webhost(s); (iv) the content or layout of websites corresponding to the disputed domain names; (v) the nature of the marks at issue (e.g., where a registrant targets a specific sector); (vi) any naming patterns in the disputed domain names (e.g., <mark-country> or <mark-goods>); (vii) the relevant language/scripts of the disputed domain names particularly where they are the same as the mark(s) at issue; (viii) any changes by the respondent relating to any of the above items following communications regarding the disputed domain name(s); (ix) any evidence of respondent affiliation with respect to the ability to control the disputed domain name(s); (x) any (prior) pattern of similar respondent behavior; or, (xi) other arguments made by the complainant and/or disclosures by the respondent(s).
In this case, the Complainants presented evidence that proves the connection among the individuals that appear to be the Respondents in the WhoIs information. Also, the fact that the contact information, such as email, was the same, is relevant in this case to determinate that the Respondents are the same and that, even if they were not the same person, one or two or more of the Respondents act as one and have control of both of the disputed domain names.
a. There is evidence that the two persons who appear as administrators and responsible of the disputed domain names, although they have different names, share the same email. It may be two persons or one, the Respondent or Respondents did not respond to clarify this point.
b. The Complainants believe (based on the research conducted and evidence gathered) that it is one person who has control of the two disputed domain names.
By virtue of the foregoing, the Complainants requested the consolidation of the Respondents and based on the procedural economy and as the consolidation is fair and equitable, the Panel believes that it is proper to implement the consolidation. Accordingly, hereafter the Respondents will be collectively referred to as “Respondent”.
− United States Trademark No. 4146057, for INSTAGRAM, registered on May 22, 2012, first use in commerce on October 6, 2010.
The Panel finds that both disputed domain names are confusingly similar to the Complainant’s WHATSAPP and INSTAGRAM trademarks. With regards to the disputed domain name <whatappvideoonline.com>, the Panel finds that it consists of a common misspelling of the Complainant’s WHATSAPP trademark, with the omission of the letter “s”. This has also been recognized before by other Panel, who have already said that typo-squatting of a trademark will be found to be confusingly similar to that specific trademark, where the misspelled trademark remains the dominant or principal component of the domain name. For example, Facebook, Inc. and WhatsApp, Inc. v. Domain Manager, NA, WIPO Case No. D2016-0394, “[a]lthough the letter ‘a’ between the letters ‘h’ and ‘t’ have been omitted and it is the same with the letter ‘s’ after the letter ‘t’ as well as the second ‘p’ at the end of that word, the trademark WHATSAPP can still be easily recognized since the misspelled trademark remains the dominant or principal component of the domain name”. Moreover, the Panel finds that since the Complainant’s WHATSAPP trademark constitutes the dominant part of the disputed domain name <whatappvideoonline.com>, the addition of the non-distinctive terms, such as “video” and “online”, should not prevent a finding of confusing similarity under the first element. For example, in Wikimedia Foundation, Inc. v. Charan Naidu, micro seas, WIPO Case No. D2018-0707, the opinion of the Panel was the following: “The addition of the descriptive word ‘video’ does not eliminate the confusing similarity between the disputed domain name and the Complainant’s WIKIPEDIA mark”.
The Panel also finds that the disputed domain name <ɪnstagram.com> [xn--nstagram-9ud.com] contains part of the Complainant’s INSTAGRAM trademark. As other Panels have decided before under the Policy, internationalized domain names and their Punycode translations are equivalent, for example in Württembergische Versicherung AG v. Emir Ulu, WIPO Case No. D2006-0278, the opinion was: "finding that the <xn--wrttembergische-versicherung16c.com> should be considered as equivalent to the <württembergischeversicherung.com> domain name”.
It has been generally accepted by many other UDRP Panels that the generic Top-Level Domain (“gTLD”), such as “.com”, is irrelevant when considering whether a domain name is identical or confusingly similar to a trademark, as it is a functional element, this Panel opinion is the same.
For all the foregoing reasons, the Panel finds that the first element of paragraph 4(a) of the Policy has therefore been satisfied by the Complainant.
Paragraph 4(a)(ii) of the Policy requires the complainant to establish that the respondent has no rights or legitimate interests in the domain name. The consensus view among UDRP panels is that where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. See section 2.1 of the WIPO Overview 3.0. In this case the Respondent did not answer, therefore did not rebut the Complainants’ prima facie case regarding the lack of rights or legitimate interests.
The Complainant declared that it is not affiliated or associated with the Respondent in any way. The Complainant argued that it has not authorized or given any license to the Respondent in order to register, use or include their own trademarks in a domain name. Also, the Complainant established that the Respondents are not commonly known by the disputed domain name or the trademarks: WHATSAPP nor INSTAGRAM.
The Complainant has argued that the Respondent is not a licensee of the Complainant, nor has it been otherwise allowed by the Complainant to make any use of the Complainant's trademarks. Previous panels deciding under the Policy have already held that the lack of such prior authorization would be sufficient to establish a prima facie case regarding the respondent's lack of rights or legitimate interests in the disputed domain names.
According to the Complainant and the evidence presented that there is a strong indication that the disputed domain name <ɪnstagram.com> [xn--nstagram9ud.com] was being used for phishing. The disputed domain name used to point to a website requiring users to provide personal information.
The Panel finds that the use to obtain personal information with doubtful or malicious intent, cannot possibly be considered a bona fide offering of goods or services. Other Panels have expressed their opinion of this subject before, for example: Apple Computer, Inc. v. PrivacyProtect.org / Private Registrations Aktien Gesellschaft, WIPO Case No. D2012-0879, where the panel said: “the Complainant provided evidence in an annex to the Complaint that by typing the disputed domain name <applestor.com>, the Internet traffic has been redirected to web pages that harvest valuable personal information about users including names and email addresses. The infringing website connected with <applestor.com> is an example of a phishing website and cannot constitute a bona fide use of the disputed domain name pursuant to paragraph 4(c)(i) of the Policy)”.
The Panel recognizes the evidence presented by the Complainant that proves that Respondent was not using, or had made demonstrable preparations to use, the disputed domain name <whatappvideoonline.com> in connection with a bona fide offering of goods or services, because this disputed domain name is currently redirecting to a website containing PPC links. Such use of the disputed domain name cannot possibly be considered a bona fide offering of goods or services, as the Respondent was and is unduly taking advantage of the goodwill and renown attached to the Complainant's WHATSAPP trademark to attract traffic to its website for its own financial gain. See, for example, Facebook, Inc. v. Seung Hee Lee, Sang Hoon Lee, Master, Inc., Jung Hyun Shin, WIPO Case No. D2013-2030, “[s]ome of the disputed domain names are currently used for advertisements or as links to offer products or services mostly unrelated to the Complainant i.e. <facebook-pages.com> and <facebooklogs.com>) which is not bona fide”. Also see, for example, Wikimedia Foundation, Inc. v. Walter Gerbert, WIPO Case No. D2016-1346, “[u]se of a well-known mark to deceive Internet users and maliciously infect their computer system is not a bona fide use of the mark”.
For all the above-mentioned reasons, the Panel finds that the Complainant has made a prima facie case that has not been rebutted by the Respondent and therefore the second element of the Policy is fulfilled.
The disputed domain names were registered and are being used in bad faith (Policy, paragraph 4(a)(iii), 4(b); Rules, paragraph 3(b)(ix)(3)).
The Panel finds that the Complainant’s WHATSAPP and INSTAGRAM trademarks are highly distinctive and well-known throughout the world. They have been continuously and extensively used since 2009 (for WHATSAPP) and 2010 (for INSTAGRAM), and have rapidly acquired considerable goodwill and renown worldwide, including in India where the Respondent is based. Other Panels have found that the WHATSAPP trademark has acquired “worldwide renown... amongst mobile applications” and an “impressive number of users... since the launch of the WhatsApp services in 2009” (see WhatsApp Inc. v. Francisco Costa, WIPO Case No. D2015-0909); and, in the case of the INSTAGRAM trademark, the Panel in Instagram, LLC v. Sedat Das, Arda Arda, Domain Admin, whoisprotection biz, Domain Admin Domain Admin, whoisprotection biz WIPO Case No. D2016-2382, had the following opinion: “[a]t the date of registration of the disputed domain names, the Respondent was obviously well aware of the Complainant’s well-known INSTAGRAM and INSTA trademarks”.
In this case and for this Panel, the trademarks are well known, and the Respondent must have known or was aware of the Complainant's INSTAGRAM and WHATSAPP trademarks at the time of registration of the disputed domain names in November 2016 and July 2018.
In the case of the disputed domain name <whatappvideoonline.com>, the website to which the disputed domain name resolves attracts Internet users to pay-per-click (“PPC”) links to websites unrelated to the Complaint. The Panel finds that such use of the disputed domain name, from which the Respondent is obtaining financial gain by virtue of some type of revenue generating scheme, is in bad faith given that the Respondent is deliberately seeking to profit from the Complainant's renowned trademark for its own financial gain. For example: Ustream.TV, Inc. v. Vertical Axis, Inc., WIPO Case No. D2008-0598, “The Respondent’s use of the disputed domain name for a PPC parking page constitutes bad faith use because the Respondent is attracting Internet users to its website by causing confusion as to whether its website is, or is associated with, the Complainant or its services”.
This Panel finds that passive holding of the disputed domain name <ɪnstagram.com> [xn--nstagram-9ud.com] does not prevent a finding of bad faith, given the strength and renown of the Complainant’s trademark. Such was the opinion of the Panel in Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, which established the following: “finding that the passive holding of a domain name can constitute bad faith in certain circumstances, particularly where the trademark in question has a strong reputation and is widely known”.
This Panel finds that the evidence provided by the Complainant is enough to prove that the use of the disputed domain name <ɪnstagram.com> [xn--nstagram-9ud.com], that used to point to a website displaying terms in a similar font as the Complainant’s logo and inviting users to enter their personal information in order to obtain phishing scam information for commercial gain and also trying to obtain confidential account information from Instagram users as result of intentionally created confusion, constitutes use in bad faith. As other Panels have recognized before, for example Instagram, LLC v. Ellie Walker, WIPO Case No. D2018-0669, where the panel considered that a domain name which “resolved to a website with the same ‘look and feel’ as the Complainant’s official Help Centre, containing an ‘Approved Account Participation Form’ where Instagram users were asked to disclose their confidential account information”, as result of intentionally created confusion, constituted use in bad faith.
For all the foregoing reasons the Panel finds that the disputed domain names were registered and are being used in bad faith, in accordance with paragraph 4(a)(iii) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names <whatappvideoonline.com> and <ɪnstagram.com> [xn--nstagram-9ud.com] be transferred to the Complainant.

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The U.S. Food and Drug Administration (FDA) and the Centers for Medicare &Services (CMS) as part of the Department of Health and Human Services (HHS), all United States Federal Government entities and hereinafter also referred to as "agencies.” The agencies enter this agreement in order to streamline and facilitate the efficient categorization of investigational medical devices in order to support CMS's ability to make Medicare coverage determinations for those investigational devices under 42 C.F.R. 405.201, et seq..
CMS is committed to strengthening and modernizing the nation's health care system to provide access to high quality care and improved health. CMS is focused on measurably improving care and population health by transforming the U.S. health care system into an integrated and accountable delivery system that continuously improves care, reduces unnecessary costs, prevents illness and disease progression, and promotes health.
FDA is a regulatory agency responsible for protecting the public health through the regulation of food, cosmetics, tobacco, and medical products, including drugs, biological products, animal drugs, and medical devices. FDA administers the Federal Food, Drug and Cosmetic Act (see 21 U.S.C. § 321 et seq.) and applicable sections of the Public Health Service Act (see e.g. 42 U.S.C. § 262), among other statutes. Among its duties, the FDA approves pre-market applications, conducts inspections of manufacturing facilities, and monitors post-marketing adverse events.
CMS enters into this MOU in furtherance of its responsibility to make coverage determinations for items and services for Medicare beneficiaries under part B, pursuant to 42 U.S.C. § and 42 CFR 405.201, et. seq.
FDA enters into this MOU in furtherance of its responsibility to regulate the investigational use of devices by experts qualified by scientific training and experience to investigate the safety and effectiveness of devices, which falls under the umbrella of the Investigational Device Exemption (IDE). See 21 U.S.C. § 360j(g); 21 CFR Part 812.
FDA and CMS also enter into this MOU under the authority of 21U.S.C. § 393(c), which directs the Secretary of HHS to implement programs and policies that foster collaboration between FDA and other science-based Federal agencies to enhance the scientific and technical expertise available to the Secretary in the conduct of duties with respect to the development, clinical investigation, evaluation, and postmarket monitoring of emerging medical therapies.
In 1995, the CMS and FDA entered into an interagency agreement in which FDA agreed to categorize investigational devices for purposes of making Medicare coverage decisions. CMS has taken into account the FDA categorization as part of its determination of which devices meet the requirements for Medicare coverage under section 1862(a)(1)(A) of the Social Security Act (the "reasonable and necessary" clause).
In December 2013, CMS published a final rule in which it modified its regulations related to Medicare coverage of routine care items and services in Category A IDE studies and trials and Medicare coverage of Category B IDE devices and routine care items and services. 42 C.F.R. §405.211; 78 Fed. Reg. 74,230, 74,809 (Dec. 10, 2013).Medicare may cover any device that FDA categorizes as B. See 42 CFR § 405.211(b). By contrast, Medicare does not pay for any device that FDA categorizes as A. 42 C.F.R. §405.211(a). CMS established these scientific and ethical standards for clinical trials consistent with its authority under section 1862(m)(2)(B) and section 1871 of the Social Security Act. CMS also informed the public that as of January I, 2015, IDE coverage decisions for IDE clinical trials would be made by CMS centrally, rather than by Medicare Administrative Contractors. 78 Fed. Reg. at 74,432.
FDA and CMS need to revise their shared understanding regarding investigational device categorization to reflect the changes in the 2013 CMS IDE regulation. See 78 Fed. Reg. at 74,809. Rather than amending the 1995 interagency agreement between the agencies, FDA and CMS have decided to enter into a Memorandum of Understanding (MOU). This MOU will cancel and replace the 1995 interagency agreement upon the effective date.
a. For the purpose of assisting CMS in determining Medicare coverage, FDA will place all devices with FDA-approved applications for IDE into either Category A (Experimental)or Category B (Nonexperimental/Investigational).
FDA will classify investigational devices under the definitions set forth at 42 C.F.R. § 405.201.
Category A (Experimental) device refers to a device for which "absolute risk" of the device type has not been established (that is, initial questions of safety and effectiveness have not been resolved) and the FDA is unsure whether the device type can be safe and effective.
Category B (Nonexperimental/lnvestigational)device refers to a device for which the incremental risk is the primary risk in question (that is, initial questions of safety and effectiveness of that device type have been resolved), or it is known that the device type can be safe and effective because, for example, other manufacturers have obtained FDA premarket approval or clearance for that device type.
b. Each Federal partner will establish a principal point of contact to facilitate the actions carried out under this MOU.
c. FDA and CMS agree to attend an initial meeting to establish the specific procedures and safeguards consistent with the regulations that are necessary to implement this MOU. The initial meeting will take place within 60 days of signing and approval of this MOU. Periodic meetings will be scheduled thereafter on an as needed basis.
FDA and CMS will take actions under this collaboration that are consistent with existing statutes and regulations, and that nothing in the MOU shall be construed as changing the current requirements under the statutes and regulations administered and enforced by FDA and CMS including but not limited to: Title 42 of the United States Code, the Public Health Service Act, and the Federal Food, Drug, and Cosmetic Act. Further, nothing contained in this MOU constitutes a mandate or a requirement imposed on FDA or CMS that is additional to the mandates or requirements imposed on FDA or CMS by Federal statutes and regulations.
Investigations covered under the IDE regulations at 21 CFR part 812 are subject to differing levels of regulatory control depending upon the level of risk. The IDE regulations distinguish between significant risk and non-significant risk device studies; non-significant risk studies are generally considered to have FDA approval as long as certain abbreviated requirements are met. See 21 CFR 812.2(b). Some types of studies are exempt from the IDE regulations. See 21 CFR 812.2(c). The following regulations pertain to device investigations: 21 CFR parts 50, 54, 56, 58, 812, and 820.30.
FDA and CMS staff involved in implementing the MOU will provide regular and consistent oversight and reevaluation of all terms and conditions contained herein.
This MOU becomes effective 6 months after the signature of both the FDA and CMS and will remain in effect for an indefinite period, unless otherwise terminated. This agreement may be modified by unanimous consent or terminated by any party upon 60 days written notice. This agreement may be modified by consent of both Federal partners or terminated by any party immediately upon written notice in the event that a Federal statute is enacted or a regulation is issued by a Federal partner that materially affects this MOU.