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An Ounce of Prevention - Legally Speaking; Will your employment policies hold up in court?
Too many times defense counsel is trying to organize his thoughts, notes, or just relax while the prosecutor is making closing arguments. Some of the comments by the prosecutor could be improper and could cause the jury to convict our clients. We've all read transcripts or heard arguments where defense counsel sat silently while the prosecutor made improper arguments. This article is an attempt to review some of the major areas of improper closing argument by prosecutors.
All of us expect a prosecutor to fight hard and the caselaw is clear that a prosecutor "may prosecute with earnestness and vigor...But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one..."quoting from Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L. Ed. 1314 (1935).
Generally, counsel is generally given wide latitude during closing argument, and trial courts are granted wide discretion in controlling closing arguments. See State v. Carruthers, 35 S.W.3d 516, 577-78 (Tenn. 2000) "Notwithstanding such, arguments must be temperate, based upon the evidence introduced at trial, relevant to the issues being tried, and not otherwise improper under the facts or law." State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003). However, courts have a responsibility to police argument and must restrict any improper commentary." See 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995) (citing Sparks v. State, 563 S.W.2d 564 (Tenn. Crim. App. 1978)).
Prosecutor's statement that there were no diapers found in the victim's house, when in fact, there was no evidence to indicate whether or not diapers were found, was a misstatement of the evidence and was an important point and an intentional statement. State v. Hall, 2004 Tenn. Crim. App. Lexis 232, 22-25 (Tenn. Crim. App. 2004).
Prosecutor's closing argument that the "defense seeks to do three things: to obscure the truth, to mock the truth, and to call the child a whore. That's their defense." This argument was held not temperate or predicated on evidence introduced during trial. State v. Charles Sanders, 2002 Tenn. Crim. App. Lexis 756 (Tenn. Crim. App. 2002).
Improper argument to say of defense counsel: "They are going to stand up here in a few minutes and they are going to ask you to violate your oath as a juror and disregard the law. That's what they are hired to do." State v.Taniese Wilson, 1999 Tenn. Crim. App. LEXIS 835 (Tenn. Crim. App. 1999).
A prosecutor should not express his or her personal opinion about the credibility of the witnesses, unless the comments are ground upon evidence in the record. State v. West, 767 S.W. 2d 387, 394 (Tenn. 1989).
It was improper for district attorney to tell the jury that defense counsel was "trying to throw sand in the eyes of the jury" and "blowing smoke in the face of the jury." State v.West, 767 S.W. 2d 387 (Tenn. 1989).
Improper for the prosecutor to state: "I don't believe that" in reference to certain testimony. State v. Beamon, 1996 Tenn. Crim. App. Lexis 753, 5-9 (Tenn. Crim. App. 1996). Also, improper to state "the Defendant is about as guilty as anyone I ever prosecuted." State v. Michael Dean, 1999 Tenn. Crim. App. Lexis 1217 (Tenn. Crim. App. 1999).
Prosecutor's statement that an officer told the truth amounted to improper vouching. Expressions of personal opinion by the prosecutor are generally prohibited as a form of unsworn, unchecked testimony which tends to exploit the influence of the prosecutor's office and undermine the objective detachment that should separate a lawyer from the advocated cause. State v. Tarter, 2006 Tenn. Crim. App. LEXIS 238, 18-20 (Tenn. Crim. App. 2006).
Improper to refer to the defendant as a "rabid dog" State v. Bates, 804 S.W. 2d 868, 881 (Tenn. 1991).
Prosecutor should refrain from engaging in any sort of personal name-calling or calling the Defendant derogatory names. State v. Bane, 57 S.W. 3d 411 (Tenn 2001); State v. Cauthern, 967 S.W. 2d 726, 737 (Tenn. 1998).
Improper to call the Defendant a liar. State v. Carruthers & Montgomery, 35 S.W. 516, (Tenn. 2000).
Improper for a prosecutor to comment unfavorably upon a defendant's pro se representation of himself or the presentation of his case. Coker v. State, 911 S.W. 2d 357 (Tenn. Crim App. 1995). Improper to reflect unfavorably upon defense counsel or the trial tactics employed during the course of a trial. See State v. Padgett, 2004 Tenn. Crim. App. Lexis 938, 30-36 (Tenn. Crim. App. 2004).
A prosecutor is strictly prohibited from commenting on the Defendant's decision not to testify. Coker, 911 S.W. 2d at 368. Including the decision not to present any proof.
A prosecutor may not comment upon the Defendant's failure to make a statement to the police because this would punish the defendant for exercising his or her constitutional right to remain silent. Braden v. State, 534 S.W. 2d 657, 659-60 (Tenn. 1976).
It is improper to make biblical and scriptural references during the prosecutor's closing argument. See State v. Middlebrooks, 995 S.W. 2d 550,559 (Tenn. 1999). It is also improper to refer to the ten commandments in the Bible. State v. Carruthers & Montgomery, 35 S.W. 516,(Tenn. 2000).
Improper to refer to the Lord's Prayer and to refer to the Defendant as "the evil one." And to "combat and destroy" the "evil one" State v. Stephenson, 878 S.W. 2d 530, 541 (Tenn. 1994).
A prosecutor cannot simply appeal to the emotions and sympathies of the jury while invoking victim impact argument. State v. Bigbee, 885 S.W. 2d 797 (Tenn. 1994).
It was improper for a prosecutor to comment that the victim's families "trust in you [the jury]." State v. Carruthers & Montgomery, 35 S.W. 516, (Tenn. 2000).
Statements to the jury that they have a responsibility to the victim's family improperly appealed to the emotions and sympathies of the jury. See State v. Bigbee, 885 S.W. 2d 797, 809 (Tenn. 1994).
Prosecutor's comment that if you don't stop the Defendant he will take someone else away was an improper attempt to sway the jury. State v. Sims 45 S.W. 3d 1 (2001).
Making the implication that a case was a stronger case than some that the district attorney had tried before, was not proper argument. State v. Walker, 910 S.W. 2d 381 (Tenn. 1995).
Improper to argue that a defendant is a bad person who should be convicted on general principles... for the good of society. State v. Likens, 1986 Tenn. Crim. App. Lexis 2260, 4-11 (Tenn. Crim. App. 1986) quoting knight v. State, 190 Tenn. 326, 332, 229 S.W. 2d 501, 503 (1950).
Statements to a sequestered jury that none of them would have been sequestered a week away from their families and with witnesses and papers except because of the defendant, was an improper comment. State v. Bond, 2006 Tenn.Crim. App. Lexis 724 (Tenn. Crim. App. 2006).
Can't make a comment on the consequences of an acquittal. State v. Padgett, 2004 Tenn. Crim. App. Lexis 938, 30-36 (Tenn. Crim. App. 2004).
Arguing that a defendant is trying to find a way out of this case though his lawyers qualified as improper argument. State v. Mathias, 2004 Tenn. Crim. App. LEXIS 68, 20-25 (Tenn. Crim. App. 2004).
It was improper argument to make reference to the fact that one of the defense attorneys was from Cincinnati, Ohio and another member of the defense team was from Nashville (out of town). State v. Pendergrass and Broad Street Video, 13 S.W. 3d 389 (Tenn. Crim. App. 1999).
5. Intentionally referring to or arguing facts not in evidence where the facts are not matters of common public knowledge.
Arguing that the state's witnesses houses were burned as a form of intimidation was improper in the absence of any evidence of the reasons that the house was burned. State v. Williams, 690 S.W. 2d 517, 525 (Tenn. Crim. App. 1985).
Argument that a witnesses' Father's store burned before the trial was improper because there was nothing to connect the defendant to the burning. State v. Frank Loftis, 1990 Tenn. Crim. App. Lexis 475 (Tenn. Crim. App. 1990).
Implying that the state's witnesses would be in danger if the defendants were not convicted was error. State v. Jakie Durhan and Gary Lee Raines, 2003 Tenn. Crim. App. LEXIS 547 (Tenn. Crim App. 2003).
See generally State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (citing Standards Relating to the Prosecution Function and the Defense Function §§ 5.8-5.9.
It is important to remember that if opposing counsel is guilty of improper argument, defense counsel must make an immediate objection or the issue will be waived. In addition, counsel may not be able to complain if, as a result of his own improper remarks, he or she was provoked or invited the prosecutor to respond in kind. See State v. Jeffery Porter, 1989 Tenn. Crim. App. Lexis 44 (Tenn. Crim. App. 1989). The failure to object contemporaneously may also constitute a waiver of the improper argument pursuant to Tennessee Rule of Appellate Procedure 36(a).
In summary, if the prosecutor's argument is improper, don't be afraid to rise and object immediately. Don't waive any of your client's rights or objections. The trial court might give a curative instruction and say that cured the comment but if there is a conviction, the Court of Criminal Appeals will note your didn't waive the issue and it might make the difference in a close case. Don't go down easy. Perhaps it will make a difference for the jury or the Appellate Court. In addition, your client will know that you are fighting even to the end of the trial for them.

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STATE OF ARIZONA ex rel.
This appeal presents the issue whether a court, in calculating a parent's child support obligation, may admit and consider evidence of an obligated parent's incarceration offered to rebut the statutory presumption that all parents are capable of earning at least the federal minimum wage. We hold that a court may do so and accordingly vacate the child support order entered by the trial court and remand to that court for further proceedings consistent with this opinion.
¶ Roberta and Warren McEvoy married in November 1981 and divorced approximately five years later. The decree of dissolution ordered Warren to pay child support of $340 per month for the couple's three minor children.
¶ In July 1995, Warren was convicted on charges of conspiracy to transport marijuana and offer to transport marijuana, and was sentenced to eight and one-half years' imprisonment. Thereafter, Warren filed a Request to Modify Child Support, asking that his support obligation be reduced to five dollars per month. The Arizona Department of Economic Security ("the state"), which had been making welfare payments to Roberta, opposed the Request.
¶ At the hearing on his Request, Warren asserted that the court should modify his obligation because incarceration had reduced his earning capacity. Specifically, Warren testified that he was earning twenty cents per hour, at a maximum of thirty hours per week, and had no other source of income. The state argued that any modification based on Warren's incarceration was inappropriate because he voluntarily reduced his earnings by being arrested and imprisoned.
¶ The trial judge found that Warren's reduction in income due to incarceration constituted a substantial and continuing changed circumstance justifying modification under Arizona Revised Statutes Annotated ("A.R.S.") section 25-327(A) (Supp. 1997). In attempting to determine each parent's gross income, the trial judge noted that Arizona had not addressed how courts should determine an incarcerated obligor's gross income. Based upon her reading of A.R.S. section 25-320(I) (Supp. 1997) and State ex rel. Department of Economic Sec. v. Ayala, 185 Ariz. 314, 916 P.2d 504 (App. 1996), the trial judge concluded that regardless of Warren's actual earnings while incarcerated, she was required to attribute to him a gross income of at least the federal minimum wage. Consequently, she calculated the minimum wage at $737 per month, attributed this amount to Warren as gross income rather than the five dollars per month he assertedly was making, and reduced his child support obligation from $340 to $276 per month. Warren timely appealed.
¶ The principal issue Warren raises on appeal is whether an obligor's reduction in income due to incarceration may, under section 25-320(I), be admitted to show that he is incapable of earning the federal minimum wage. Warren raises several other issues relating to the modification of his child support obligation, which we address in turn. Finally, the state raises an issue regarding the effect our determination of the principal issue might have on A.R.S. section 25-511 (Supp. 1997), the statute which criminalizes non-payment of child support.
¶ A court may modify the child support provisions of a dissolution decree upon a showing of changed circumstances that are substantial and continuing. A.R.S. § 25-327(A). In considering a request for modification, courts are required to apply the Arizona Child Support Guidelines adopted by the Arizona Supreme Court ("guidelines"),See footnote 1 unless their application would be "inappropriate or unjust." A.R.S. § 25-320(A) (Supp. 1997); Ayala, 185 Ariz. at 316, 916 P.2d at 506. We will not disturb a trial court's decision regarding modification of a child support award absent an abuse of discretion. Ayala, 185 Ariz. at 316, 916 P.2d at 506.
¶ Warren argues that the trial court was wrong in calculating his child support obligation based on a fictional income rather than his actual prison earnings. He asserts that Arizona law does not require that a minimum wage earning capacity be attributed to him in the face of clear evidence that his earning power while incarcerated is significantly below minimum wage. The state responds that Warren's incarceration must be viewed as a voluntary choice to reduce his pre-incarceration earning capacity, thereby precluding any modification of his existing support obligation. Alternatively, the state proposes that the relevant statute and guideline must be construed to require attribution of an earning capacity of at least the federal minimum wage to an incarcerated child support obligor.
If a parent is unemployed or working below full earning capacity, the court may consider the reasons. If earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute income to a parent up to his or her earning capacity. Pursuant to Arizona Revised Statutes Section 25-320.G,See footnote 2 income of at least minimum wage shall be attributed to a parent ordered to pay child support.
The court shall presume, in absence of contrary testimony, that a noncustodial parent is capable of full-time employment at least at the federal adult minimum wage. This presumption does not apply to non-custodial parents under the age of eighteen who are attending high school.
¶ For its first proposition that no modification at all should be permitted, the state focuses on the first portion of guideline 5(e), which requires an "earning capacity" attribution if earnings are reduced as a matter of choice and not for reasonable cause. Citing cases from other jurisdictions which have so held,See footnote 3 the state argues that the commission of a criminal act is a voluntary choice, which choice necessarily encompasses the possibility of incarceration. Therefore, the state reasons, when incarceration does result, the obligor should be considered as having chosen incarceration and therefore treated no differently than if he had simply quit his job without reasonable cause. Under this interpretation, the incarcerated obligor's income would be set at the level it was prior to incarceration, and if that is the amount on which the prior support order was based, no modification would be appropriate.
¶ The problem with this proposition is that it was essentially rejected by Ayala. There we noted that "[t]he growing trend appears to be that incarceration neither suspends a support obligation nor prohibits a reduction in the amount of support." 185 Ariz. at 317, 916 P.2d at 507 (emphasis added). Consequently, in considering whether a deviation from the guidelines was appropriate, Ayala held "that it is properly within the trial court's discretion to consider a parent's incarceration as a factor in making [support] determinations." Id. at 318, 916 P.2d at 508. We see no reason to depart from Ayala, and we therefore reject the state's first proposition.
¶ The state's alternative proposition is that both guideline 5(e) and section 25-320(I) are silent on whether incarceration can be considered in determining minimum wage earning capacity, and consequently this omission renders them both ambiguous. Thus, the state argues, a judicial construction of legislative intent regarding the extent of the presumption is required. In aid of such construction, the state proposes that compelling policy reasons require that the statute and guideline be interpreted to preclude incarceration from consideration.
¶ It is the "in absence of contrary testimony" provision of section 25-320(I) that the state asserts needs interpretation. The state characterizes this language as "silence" on the question whether evidence of incarceration is competent to rebut the presumption of minimum wage earning capacity. The state uses this asserted ambiguity to urge that we should read into the statute, as a matter of policy, a prohibition against the consideration of incarceration in determining earning capacity.
¶ In arguing policy, the state begins by pointing out that even though a parent is incarcerated, not only is that parent's duty to support not extinguished, but the child also remains in need of support. Consequently, someone has to step in and assume that burden and that someone is often the state welfare system. As a practical matter, the incarcerated obligor will probably not be able to earn the federal minimum wage and an arrearage will result. However, when the period of incarceration ends, the obligor can become employed and begin paying on the arrearage. This provides a mechanism whereby the taxpayers who have assumed the obligor's duty of support can recoup at least some of what was expended on behalf of the child. See Douglas v. Department of Revenue, 880 P.2d 113, 114 (Alaska 1994) (stating that a "parent's duty of support encompasses a duty to reimburse other persons who provide the support the parent owes" (quoting Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska 1987))).
¶ While the state's policy rationale is persuasive, we are not permitted to arbitrarily read good policy into legislative enactments. Rather, we are constrained by the language actually used by the legislature and it is from that language that we must ascertain what that body intended. See Lewis v. Department of Economic Sec., 186 Ariz. 610, 614, 925 P.2d 751, 755 (App. 1996).
¶ We disagree with the state that the phrase "in absence of contrary testimony" in section 25-320(I) is at all ambiguous. To the contrary, it is quite clear and leaves no room for inserting a policy-driven restriction under the guise of statutory construction. The statutory language places no substantive restriction on the type of testimony which can be received, and testimony that an obligor is incarcerated is prima facie contrary to the presumption that he is able to earn minimum wage. If the legislature had wished to restrict the nature of acceptable testimony, it would have done so. In fact, it did restrict the application of the presumption in the second sentence of 25-320(I) by providing it should not apply to a minor still attending high school. A restriction on "contrary testimony" could just have easily been included had the legislature thought it appropriate. Cf. Estate of Tovrea v. Nolan, 173 Ariz. 568, 573, 845 P.2d 494, 499 (App. 1992) (finding that "the statement of one exception implicitly denies the existence of other unstated exceptions").
¶ When the language of a statute is clear and unambiguous, we follow the text as written. Lewis, 186 Ariz. at 614, 925 P.2d at 755. We find nothing in the text of section 25-320(I) that indicates the legislature intended anything other than the plain meaning of the terms used therein. Therefore, we hold that in a child support modification proceeding, evidence of incarceration can be admitted to rebut the presumption in section 25-320(I) that a child support obligor is capable of earning the federal minimum wage.
¶ In this case, the trial judge concluded that she was bound to attribute the minimum wage to Warren. Consequently, she did not determine whether the testimony Warren presented rebutted the statutory presumption. Moreover, she did not determine Warren's actual earning capacity while imprisoned nor whether he had other assets or income on which to base an award of support. See Ayala, 185 Ariz. at 317-18, 916 P.2d at 507-08 (stating that a court must first assess an incarcerated obligor's available assets and income, including the opportunity for prison income, before deciding how to modify a child support award). We therefore vacate the order entered by the trial judge and remand for a further hearing on this issue.
¶ Warren asserts that the trial judge abused her discretion in refusing to suspend his support obligation because Roberta denied him visitation. However, a custodial parent's denial of visitation rights does not necessarily relieve the noncustodial parent of his child support obligation. See Campbell v. Campbell, 126 Ariz. 558, 559, 617 P.2d 66, 67 (App. 1980) (holding that father still owed duty of support despite mother's interference with father's right to custody); Baures v. Baures, 13 Ariz. App. 515, 517, 478 P.2d 130, 132 (1970) ( holding that parent's removal of child from jurisdiction, thereby depriving obligor of opportunity for visitation, did not work forfeiture of child support payments). Rather, it is within the trial court's discretion to determine whether denial of visitation rights justifies suspension of the child support payment. State ex rel. Arvayo v. Guerrero, 21 Ariz. App. 173, 176, 517 P.2d 526, 529 (1973).
¶ When Warren raised the visitation issue below, the trial judge advised him to file a petition to enforce visitation. Warren indicated he had already done so. The trial judge then declined to consider Warren's visitation argument on the basis that there was a pending petition on the matter before another judge. On this record, we find that the trial judge did not abuse her discretion in refusing to consider Warren's visitation argument.
¶ Next, Warren claims the trial judge erred in failing to consider all of the factors for modification of support enumerated under A.R.S. section 25-320(A) (1991). We have recently addressed this issue in Pearson v. Pearson, 190 Ariz. 231, 946 P.2d 1291 (App. 1997). The father in Pearson similarly asserted that courts modifying child support awards are required both to address the guidelines as well as all the specific factors set forth in section 25-320(A). We disagreed, holding that the statute merely sets forth factors the supreme court should use to establish guidelines, and that the court must consider these factors "only if it intends to deviate from the Guidelines." Id. at 234, 946 P.2d at 1294. On remand, the trial judge may consider the statutory factors in connection with any deviation she may find appropriate.
¶ Warren next alleges numerous constitutional violations in connection with his modification argument, including violation of the right to a fair trial, due process, double jeopardy, and cruel and unusual punishment. However, our disposition of the modification issue on statutory grounds obviates the need to address these alleged violations. See R.L. Augustine Constr. Co. v. Peoria Unified Sch. Dist., 188 Ariz. 368, 370, 936 P.2d 544, 546 (1997) (stating that reviewing court need not "reach a constitutional question if a case can be fairly decided on nonconstitutional grounds").
¶ A.R.S. section 25-511 imposes criminal liability on a parent who knowingly fails to support his child. The statute also provides that a voluntary reduction in income is not a defense to criminal liability. The state has candidly pointed out that if we accept its argument that incarceration must always be construed as a voluntary reduction of income, this would expand the scope of liability under section 25-511 beyond what the legislature might have intended.See footnote 5 However, since we did not accept the state's argument, no issue arises regarding this statute.
¶ The trial judge erred in finding that she lacked discretion to modify Warren's child support award below the federal minimum wage. We therefore vacate the child support order entered by the trial judge and remand with directions to determine whether Warren did in fact rebut the presumption that he was capable of earning minimum wage. If the court finds that the circumstances of Warren's incarceration rebut this presumption, the court shall then consider all other appropriate factors and modify the award accordingly.
Footnote: 1 Warren's Request, filed on March 7, 1996, was governed by the 1994 version of the guidelines, not the October 1, 1996 version that the state cites. The differences between the two versions are that in the 1996 version, the provision at issue here is numbered paragraph 4(e), rather than 5(e), and states that a court may decline to attribute income to a parent in certain specified circumstances. The description of those circumstances does not include incarceration. We construe the 1994 version in this opinion.
Footnote: 2 Now section 25-320(I).
Footnote: 3 See, e.g., Oberg v. Oberg, 869 S.W.2d 235 (Mo. App. 1993); Davis v. Vance, 574 N.E.2d 330 (Ind. App. 1991).
Footnote: 4 This same rebuttable presumption must be read into guide-line 5(e) by virtue of its incorporation by reference of section 25-320(I). City of Scottsdale v. McDowell Mountain Irrigation and Drainage Dist., 107 Ariz. 117, 121, 483 P.2d 532, 536 (1971) (statutes that relate to the same subject matter are to be read together and harmonized so as to give effect to all provisions); see also State v. Baca, 187 Ariz. 61, 63, 926 P.2d 528, 530 (App. 1996) (in construing rules of court, we apply the same rules of construction as are used in interpreting statutes). We consider child support guidelines to be in the category of rules of court.
Footnote: 5 For example, if an obligor is sent to prison for burglary, and his incarceration renders him unable to pay support, hypothetically, he could then be charged under section 25-511 for failure to pay child support. If we accepted the state's assertion that incarceration for any reason constituted a "voluntary" reduction of income, the incarcerated burglar could not defend against the non-support charge on the basis that his nonpayment was involuntary. The state concedes that the legislature may not have intended to so narrowly restrict the defense provided in section 25-511.


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Yesterday’ Note on precedent in deciding UDRP cases touched on dictionary words and descriptive terms. Theories of bad faith under subdivisions of paragraph 4(b) of the Policy have similarly been construed. Thus, the respondent violates paragraph 4(b)(i) if it is found to have registered or acquired the domain name “primarily for the purpose” of holding it for ransom. The paragraph prohibits “selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name.” Registration or acquisition of a domain name for some purpose other than selling, renting etc. may be actionable under a different theory, but commerce in domain names is not prohibited as a matter of law. “[I]f the drafters … had intended to broadly cover offers to any and all potential purchasers as evidence of bad faith, it would have been a simple matter to refer to all offers to sell the domain name, and not offers to specific parties or classes of parties,” Educational Testing Service v. TOEFL, D2000-0044 (WIPO March 16, 2000).
Offering to sell the domain name to “the owner of a trademark or service mark trademark or service mark or to a competitor of that Complainant” is not as limited as it may appear from the literal reading of the phrase. It includes “general offers to sell the domain name, even if no certain price is demanded,” Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum November 6, 2000); offers to sell the domain name to the complainant’s licensee, Mattel, Inc. v. Unknown c/o Dora Marks, FA0506000490083 (Nat. Arb. Forum July 11, 2005) (Respondent alleged that it purchased the domain name as an “investment”); offers to sell to the general public, Systea GmbH v. Marketpoints.com New Media Branding Services/DNS Administrator, D2006-0324 (WIPO May 13, 2006) (Domain name “offered for sale on a publicly accessible website”); Parfums Christian Dior S.A. v. QTR Corp. D2000-0023 (WIPO March 9, 2000) (holding bad faith where WHOIS information included the phrase “this domain name is for sale”); offers to the “Internet universe,” Cargill, Incorporated v. RN WebReg c/o Rare Names, Inc., FA0904001260307 (Nat. Arb. Forum June 12, 2009), “which necessarily includes both Complainant and its competitors.” Demand for business concessions to relinquish the domain name also falls within the prohibition as do threats to sell to other trademark holders of the mark, Cello Holding, LLC v. Lawrence A. Storey, d.b.a. Lawrence – Dahl Co., AF-506 (eResolution December 21, 2000).
“Primarily for the purpose” also includes extortion for business concessions, Takaso Rubber Products Sdn Bhd v. Selim Tasci and Tasci Dis Tic. Ltd. STI, D2006-1263 (WIPO December 16, 2006). The demand by Respondent for such a business concession in exchange for transfer of the disputed domain name constitutes an offer to transfer the disputed domain name for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name. Moreover, the “consideration demanded in exchange for a domain name registration does not have to be monetary in nature to run afoul of UDRP paragraph 4(b)(i), but can be anything of value that exceeds the amount spent in registering and maintaining the domain name,” Gutterbolt, Inc. v. NYI Bldg. Prods. Inc., FA 96076 (Nat. Arb. Forum Dec. 29, 2000). Demands for concessions in pre-arbitration communications veiled as opportunities fall within the proscription. “[I]t is very often an opening gambit in an exercise of inducing the trademark owner to offer to buy the domain name without providing direct evidence to support a complaint under the Policy,” Google Inc. v. Jeltes Consulting/N. Tea Pty Ltd, D2008-0994 (WIPO August 20, 2008).

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FindACase | Vanair Manufacturing, Inc. v. Vmac Global Technology Inc.
Vanair Manufacturing, Inc. v. Vmac Global Technology Inc.
VMAC GLOBAL TECHNOLOGY INC., Defendant.
This matter is before the Court on Defendant VMAC's Motion to Stay Litigation Pending the PTAB's Decision on Whether to Institute an Inter Partes Review of the Patent-in-Suit[ DE 37], filed by Defendant on February 21, 2018. Defendant requests that the Court stay this case until the Patent Trial and Appeal Board (“PTAB”) issues its institution decisions in Defendant's inter partes review (“IPR”) proceedings. Plaintiff filed a response on March 7, 2018, and on March 14, 2018, Defendant filed a reply.
Plaintiff filed this patent infringement action on May 26, 2017, alleging that Defendant infringed its U.S. Patent No. 7, 753, 148. On September 25, 2017, Defendant filed a partial motion to dismiss the direct infringement allegations, which is still pending. On or before November 14, 2017, Plaintiff served its preliminary infringement disclosures, and on or before December 14, 2017, Defendant served its preliminary invalidity contentions. No. other pretrial deadlines, such as deadlines for claim construction, discovery, or dispositive motions, have been set, and neither party has served any written discovery or performed any discovery other than initial disclosures and preliminary contentions. On February 20, 2018, Defendant filed a petition for IPR with the PTAB asking it to review the validity of all claims of the patent.
“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants, ” and a court considering whether to stay a case “must weigh competing interests and maintain an even balance.” Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936) (citations omitted); see also Procter & Gamble Co. v. Kraft Foods Global, Inc., 549 F.3d 842, 849 (Fed. Cir. 2008) (“this court [Federal Circuit Court of Appeals] ha[s] consistently recognized the inherent power of the district courts to grant a stay pending reexamination of a patent”). Accordingly, when considering whether a stay is appropriate, “courts consider the following factors: (i) whether a stay will unduly prejudice or tactically disadvantage the non-moving party, (ii) whether a stay will simplify the issues in question and streamline the trial, and (iii) whether a stay will reduce the burden of litigation on the parties and on the court.” Tap Pharm. Prods., Inc. v. Atrix Lab., Inc., No. 03 C 7822, 2004 WL 422697, at *1 (N.D.Ill. Mar. 3, 2004). “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Nken v. Holder, 556 U.S. 418, 433-34 (2009). The Court will consider each factor in turn.
Plaintiff argues that it will be unduly prejudiced and tactically disadvantaged by a stay. Plaintiff argues that the PTAB is unlikely to grant Defendant's IPR petitions and that a decision denying institution of the IPR petition will not benefit the Court but will increase the complexity of construing the claims in this litigation. It argues that the Court should wait to see if IPR is instituted before deciding whether to stay this case. Defendant argues that Vanair waiting for almost three years after contacting VMAC regarding the '148 patent before filing suit, so any prejudice from a delay now is offset by the long initial delay. It also argues that any minimal prejudice suffered by Plaintiff can be allayed by seeking damages that accrued during the stay. As to the tactical disadvantage, as Defendant argues, no answer has been field in this case, and no substantial discovery is being undertaken.
The Court need not make a determination as to the likelihood that the IPRs will be instituted. See, e.g., Rensselaer Polytechnic Inst. v. Apple Inc., No. 1:13-CV-0633 DEP, 2014 WL 201965, at *8 (N.D.N.Y. Jan. 15, 2014) (“I have found no authority, however, to suggest that a court, lacking the expertise of the PTO, should examine the strength of a petitioner's claims of invalidity asserted in an IPR petition when addressing a motion to stay.”). Although any delay can cause some prejudice, the delay in this case is limited to the amount of time it will take for PTAB to decide whether to institute IPR proceedings, a delay of only until approximately September 12, 2018. Plaintiff will not be unduly prejudiced or tactically disadvantaged by this relatively brief stay.
Defendant argues that if the PTAB cancels all of the claims of the patent-in-suit, the entire case would be resolved, and if even a few of the claims are cancelled, the issues in this case would be simplified. Plaintiff argues that the fact that the IPR may not be instituted also means that the stay may delay rather than streamline the proceedings, and that if the IPR is not instituted the proceedings would add another dimension to the claim construction process rather than simplifying it. Defendant argues that the IPR process provides more information, much like the discovery process, and that it is better to have the information from the IPR before the claim construction process begins.
Defendant also argues that even if the PTAB does nott institute an IPR, the decision will address issues relevant to this litigation, and the claim construction used by the PTAB may help inform claim construction in this litigation.
The Court recognizes that there may not be complete overlap between the IPR and the questions before the Court. However, resolution or guidance on some of the issues, and even knowing whether or not the PTAB will institute IPR proceedings regarding patent validity, will simplify this case and are likely to streamline the litigation. If some or all of the claims are cancelled, then the case could be significantly simplified.

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


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Stein, Volinsky & Callaghan, P.A., of Concord (Andru H. Volinsky and Scott F. Johnson on the motions and orally), and John E. Tobin, Jr., of Concord, on the motions and orally, for the plaintiffs.
Philip T. McLaughlin, attorney general (Mr. McLaughlin on the motion and orally, and Martin P. Honigberg, senior assistant attorney general, orally), for the State.
Frank V. Sapareto, State Representative, on the pleadings, as amicus curiae.
Alf E. Jacobson, State Representative, on the pleadings, as amicus curiae.
Flygare, Schwarz & Closson, of Exeter (Thomas J. Flygare on the pleadings), for An Unnamed, Unincorporated Association of New Hampshire Citizens, as amicus curiae.
Timothy Clark, member of SAU #51 Board, on the pleadings, as amicus curiae.
Joseph S. Haas, Jr., of Ashland, on the pleadings, as amicus curiae.
The State has requested that this court "extend the validity of the current education funding system through the 2000 property tax year." In turn, the plaintiffs have asked that we (1) lift the stay entered in this matter on December 17, 1997; (2) develop a contingent plan for temporary receivership to ensure that State funding of New Hampshire's public schools will continue; (3) order the parties to participate in supervised mediation; (4) declare the State's definition of adequacy unconstitutional; and (5) award plaintiffs attorney's fees and costs. For the reasons explained below, we deny all motions except the plaintiffs' request for attorney's fees and costs. We award costs and take the motion for attorney's fees under advisement.
On December 17, 1997, this court held that "the present system of financing elementary and secondary public education in New Hampshire is unconstitutional." Claremont School Dist. v. Governor, 142 N.H. 462, 465, 703 A.2d 1353, 1354 (1997) (Claremont II). We determined that the school tax as currently structured is both disproportionate and unreasonable in violation of the State Constitution. See N.H. CONST. pt. II, art. 5. We noted that "[d]ecisions concerning the raising and disposition of public revenues are particularly a legislative function and the legislature has wide latitude in choosing the means by which public education is to be supported." Claremont II, 142 N.H. at 476, 703 A.2d at 1360. As the State acknowledged at oral argument in September 1997, "several financing models could be fashioned to fund public education." Id. Therefore, rather than remand the case for consideration of remedies, the court chose to "stay all further proceedings until the end of the upcoming legislative session and further order of this court to permit the legislature to address the issues involved." Id. In addition, we stated that "[b]ecause the legislature must be given a reasonable time to effect an orderly transition to a new system, the present funding mechanism may remain in effect through the 1998 tax year." Id. at 476-77, 703 A.2d at 1360. We expressed our "confiden[ce] that the legislature and the Governor will act expeditiously to fulfill the State's duty to provide for a constitutionally adequate public education and to guarantee adequate funding in a manner that does not violate the State Constitution." Id. at 477, 703 A.2d at 1360-61.
Our decision in Claremont II was not the beginning of the debate on this topic. In 1971, the Laconia Board of Education challenged the constitutionality of New Hampshire's education funding system, contending that the mechanism of financing the Laconia school system by a property tax was a violation of the Equal Protection Clause of the United States Constitution. See Laconia Bd. of Educ. v. Laconia, 111 N.H. 389, 393, 285 A.2d 793, 796 (1971). The court, however, declined to decide the constitutional question in part because its resolution "would require . . . a financial and statistical background which is not available in this case or in this record." Id. at 394, 285 A.2d at 796. In 1982, the issue of inequality of education and school financing in New Hampshire was raised again in the case of Jesseman v. State, No. 83-371 (N.H. February 13, 1984). The case was settled with the passage of the current foundation aid formula known as the Augenblick Formula. See RSA 198:27 et seq. (1989 & Supp. 1997). As the attorney general acknowledged at oral argument in the matter now before us, however, the funds anticipated to be distributed under the Augenblick Formula were never appropriated.
Almost five years ago, we held that the New Hampshire Constitution "imposes a duty on the State to provide a constitutionally adequate education to every educable child in the public schools in [this State] and to guarantee adequate funding." Claremont School Dist. v. Governor, 138 N.H. 183, 184, 635 A.2d 1375, 1376 (1993) (Claremont I). At that time, the court also expressed its "confiden[ce] that the legislature and the Governor w[ould] fulfill their responsibility with respect to defining the specifics of, and the appropriate means to provide through public education, the knowledge and learning essential to the preservation of a free government." Id. at 193, 635 A.2d at 1381. No changes to the current system were made, however, and the State proceeded to defend at trial the adequacy of public education and the constitutionality of school funding in New Hampshire.
On appeal from that trial, this court reversed the trial court's ruling that the system of school financing does not violate Part II, Article 5 of the State Constitution, and ordered our co-equal branches of government to devise a constitutional solution. See Claremont II, 142 N.H. 462, 703 A.2d 1353. Our decision was issued nearly one year ago. Since then, the legislature has primarily put its efforts into the consideration of legislation (the ABC plan) that was determined to contain an unconstitutional funding mechanism, see Opinion of the Justices (School Financing), ___ N.H. ___, 712 A.2d 1080 (1998), and proposed constitutional amendments designed to nullify in whole or in part this court's decisions in Claremont I and Claremont II. Although certainly a legitimate political response, see N.H. CONST. pt. II, art. 100, the efforts to place a constitutional amendment before the voters for consideration at the general election on November 3, 1998, were not successful. There is no indication in the materials before us that the legislature pursued with equal vigor any alternative solutions to remedy the unconstitutional funding system in the event that these avenues failed. Further, the State indicates that all Claremont-related bills except the ABC plan have been tabled, sent to study committees, or voted inexpedient to legislate.
In the motion now before us, the State contends that "despite diligent efforts by the executive and legislative branches of government to comply with the extremely tight time frame set in Claremont II, [it] has not yet been able to develop and implement an education funding system in response to the Claremont II decision." The State suggests that it is in part because of this court's decision in Opinion of the Justices (School Financing), that it has become "practically impossible to meet" the deadlines established in Claremont II. Thus, the State seeks a two-year period in which to "create an education funding system to meet the Claremont II mandates" and to prevent disruption to the operations of school districts.
The New Hampshire Constitution is the supreme law of this State. See Merrill v. Sherburne, 1 N.H. 199, 217 (1818). Every person chosen governor, councilor, senator, or representative in this State is solemnly committed by oath taken pursuant to Part II, Article 84 to "support the constitutions" of the United States and New Hampshire. Responsibility to act to remedy the constitutional defects articulated by this court in Claremont II lies with the Governor and the legislature. That we fulfilled our duty to interpret the constitution and say what the law is, see State v. LaFrance, 124 N.H. 171, 177, 471 A.2d 340, 343 (1983), declaring unconstitutional the abatement provision contained in the ABC plan, does not present a convincing reason why the other co-equal branches of government have been unable to remedy the continuing constitutional defect. The executive and legislative branches are "duty bound to devote every effort" to resolution of this matter. Cooper v. Aaron, 358 U.S. 1, 7 (1958).
Absent extraordinary circumstances, delay in achieving a constitutional system is inexcusable. The legality of the education funding system in this State has been questioned for at least the past twenty-seven years, and the parties involved in the present action have been engaged in litigation for over seven years. The controlling legal principles are plain. The command of Part II, Article 83 is that the State bears the duty to provide a constitutionally adequate education to every educable child in the State and to guarantee adequate funding. See Claremont I, 138 N.H. at 184, 635 A.2d at 1376. The command of Part II, Article 5 is that taxes be proportional and reasonable, thereby forbidding varying property tax rates across the State to support the public duty to provide education. See Claremont II, 142 N.H. at 471, 703 A.2d at 1357. "[I]t should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them." Brown v. Board of Education, 349 U.S. 294, 300 (1955). The constitutional rights of the children in this State to an adequate State-funded education and of all taxpaying citizens in New Hampshire to reasonable and proportional taxation are not to be denied any longer. Based on the record and pleadings before us, the motion for extension of deadlines is denied.
As explained above, we ordered in Claremont II that all further proceedings be stayed "until the end of the upcoming legislative session and further order of this court . . . ." Claremont II, 142 N.H. at 476, 703 A.2d at 1360. The plaintiffs request that we lift that stay. The current legislative session automatically expires a few days from the date of this opinion. See N.H. CONST. pt. II, art. 3. There is no need, therefore, to lift that portion of the stay that is for all practical purposes over. Further, because the legislative and executive branches must fulfill their constitutional responsibilities, see N.H. CONST. pt. II, art. 84, we do not schedule further proceedings at this time. The motion is denied.
The plaintiffs request that this court "establish a schedule by which the parties will be required to submit briefs to the Court that define the authorities and powers of a receiver to be appointed by the Court to ensure state funding of New Hampshire's public schools will continue in the event that the Governor and Legislature fail to adopt and implement a constitutional method of funding the public schools prior to April 1, 1999." The plaintiffs contend that "in light of the State's failure to act over the last ten months, . . . it is prudent to plan now for the possibility that the State will fail to act by April 1st." According to the plaintiffs, "the Court must be prepared to act to save the State's schools."
The issues related to this request have been briefed and argued before this court. There are no present or anticipated circumstances that would lead us to conclude that a constitutional funding mechanism will not be in effect at the start of the 1999 tax year. See Claremont II, 142 N.H. at 476-77, 703 A.2d at 1360. The motion is denied.
The plaintiffs request that this court order the parties to participate in supervised mediation. Without deciding whether this court has the authority to order mediation, the oral arguments before us in this matter made it clear that mediation is an impractical solution. Therefore, the motion is denied.
The plaintiffs request that this court declare the State's definition of adequacy unconstitutional. While the adequacy legislation, Laws 1998, ch. 389, adopts a statutory definition of an adequate education, the State specifically acknowledges that the legislature has yet to achieve "a system to ensure delivery of a constitutionally adequate education." Because the State concedes that it has not completed its efforts to define and implement a constitutionally adequate education as required by Claremont II, we decline the present invitation to determine whether the definition adopted is facially unconstitutional. The motion is denied without prejudice.
The plaintiffs request that this court award them attorney's fees and costs "for prevailing in the liability phase of the Claremont litigation." Because the plaintiffs' motion raises significant issues not fully briefed, we defer consideration of this issue at this time. We take this matter under advisement subject to further order of this court. Pursuant to Supreme Court Rule 23, we grant the plaintiffs' motion for taxation of costs dated December 31, 1997, in the amount of $18,646.82, to which the State did not object.
Absent corrective legislation establishing an educational funding system that is equal in valuation and uniform in rate or a constitutional amendment, you would have no lawful authority to establish school-related tax rates for towns or to certify school appropriations for the period after March 31, 1999, that is, after the end of the 1998 tax year.
See Letter from Philip T. McLaughlin, Attorney General, to Stanley R. Arnold, Commissioner, New Hampshire Department of Revenue Administration (September 2, 1998) (attached to the plaintiffs' Memorandum of Law in Support of Motion for Development of Contingent Plan for Temporary Receivership).
We observe that the only way for an orderly solution to occur is for legislation implementing such a solution to be enacted. For this to occur our co-equal branches of government must act. The Separation of Powers Clause of the State Constitution, Part I, Article 37, prevents one branch of government from encroaching on the power of another. See Opinion of the Justices, 129 N.H. 714, 717, 532 A.2d 195, 197 (1987). Here, however, we emphasize the final part of that provision, which speaks of "that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity." N.H. CONST. pt. I, art. 37. We have acted in accordance with our duty to interpret the State Constitution to declare the system of financing public elementary and secondary education in this State unconstitutional. The legislature during the past eleven months has engaged in rigorous and spirited debate, which is essential to a healthy democracy. Now we look to the Governor and the legislature to put into effect a constitutional financing system so that together, in a bond of unity and amity, THE STATE OF NEW HAMPSHIRE, see pt. II, art. I, may move forward to constitutionally educate our children in the next millennium.
THAYER, J. did not sit; BATCHELDER, J., retired, sat by special assignment under RSA 490:3.

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v.
art. 5
v.
v.
v.
art. 100
v.
v.
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art. 3
art. 84
art. 37


text:
n. - A water newt.
v. t. - To request; to seek to obtain by words; to petition; to solicit; -- often with of, in the sense of from, before the person addressed.
v. t. - To require, demand, claim, or expect, whether by way of remuneration or return, or as a matter of necessity; as, what price do you ask?
v. t. - To interrogate or inquire of or concerning; to put a question to or about; to question.
v. t. - To invite; as, to ask one to an entertainment.
v. t. - To publish in church for marriage; -- said of both the banns and the persons.
v. i. - To request or petition; -- usually followed by for; as, to ask for bread.
v. i. - To make inquiry, or seek by request; -- sometimes followed by after.


text:
B. Berry advanced to second on a wild pitch.
J. Canepa doubled, RBI; B. Berry scored.
J. Bynum singled; J. Canepa advanced to third.
J. Bynum advanced to second on a passed ball; J. Canepa scored on a passed ball.
J. Bynum advanced to third on a wild pitch.
D. Teasley singled, RBI; J. Bynum scored.
B. Sanderson singled; D. Teasley advanced to second.
J. Canepa singled; H. Smith advanced to third.
C. Brodnansk homered, 3 RBI; J. Canepa scored; H. Smith scored.
G. McCarthy reached on a fielder's choice; M. Tsai advanced to second; B. Diggle out at third 3b unassisted.
J. Lopez-Rio singled, RBI; B. Sanderson scored.
H. Smith walked; J. Lopez-Rio advanced to second.
H. Smith advanced to second on a wild pitch; J. Lopez-Rio advanced to third on a wild pitch.
J. Canepa homered, 3 RBI; H. Smith scored; J. Lopez-Rio scored.
C. Brodnansk advanced to second on a wild pitch.
B. Munoz to p for M. Denis.
D. Teasley advanced to second on an error by c.
B. Sanderson singled; D. Teasley advanced to third.
B. Sanderson advanced to second on a wild pitch; D. Teasley scored on a wild pitch, unearned.
J. Bynum walked; C. Brodnansk advanced to second.
B. Sanderson singled, RBI; J. Bynum advanced to third; C. Brodnansk scored.
V. Riggio singled, RBI; B. Sanderson advanced to second; J. Bynum scored.
J. Lopez-Rio singled, RBI; V. Riggio advanced to second; B. Sanderson scored.
H. Smith hit by pitch; J. Lopez-Rio advanced to second; V. Riggio advanced to third.
R. Gault singled; G. McCarthy advanced to second.
C. Castaneda to 3b for C. Stevenson.
S. Fernald to c for J. Fernandez.
S. Ullmann to p for B. Munoz.
B. Sanderson advanced to second on a wild pitch.
V. Riggio singled; B. Sanderson advanced to third.
J. Lopez-Rio hit by pitch; V. Riggio advanced to second.
H. Smith grounded into double play 2b to ss to 1b; J. Lopez-Rio out on the play; V. Riggio advanced to third; B. Sanderson scored.
B. Berry singled, RBI; V. Riggio scored.
S. Fernald struck out swinging, reached first on a wild pitch.
J. Murrieta to cf for G. McCarthy.
J. Bynum advanced to second on a wild pitch.
D. Teasley doubled, RBI; J. Bynum scored.
E. Parnow pinch ran for B. Sanderson.
V. Riggio singled; E. Parnow advanced to second; D. Teasley advanced to third.
J. Lopez-Rio flied out to cf, sacrifice fly, RBI; E. Parnow advanced to third; D. Teasley scored.
C. Prince pinch hit for H. Smith.
C. Johnson to p for S. Ullmann.
H. Estabrook to lf for B. Berry.
P. Torres to c for C. Brodnansk.
J. Pearson to p for R. Calderon.
B. Diggle doubled, 2 RBI; J. Lauck scored; D. Neubauer scored.
P. Torres hit by pitch.
P. Torres advanced to second on a passed ball.
R. Villegas to p for J. Pearson.

matches: V. V. V. V. V. V. V. V.


Two years ago, I blogged about the anti-SLAPP special motion to dismiss filed by the Competitive Enterprise Institute in response to a non-party subpoena served by the Virgin Islands Attorney General. CEI maintained the subpoena, which sought documents relating to climate change and ExxonMobil, was aimed at silencing debate on a matter of public interest. So it filed an anti-SLAPP special motion to dismiss the subpoena.
The DC anti-SLAPP statute requires a party to first show the “claim” arises from an act in furtherance of the right of advocacy on issues of public interest. The statute defines “claim” as “any civil lawsuit, claim, complaint, cause of action, cross-claim, counterclaim, or other civil judicial pleading or filing requesting relief.” CEI argued the subpoena fell comfortably within this definition.
In an opinion issued last Friday, the Virgin Islands court reached the same conclusion. Like the VanderSloot court, the Virgin Islands court concluded that, by addressing subpoenas in DC Code §16-5503 (the special motion to quash section), without including subpoenas in the definition of “claim,” the DC Council must not have intended “claim” to include subpoenas. Like the VanderSloot court, the Virgin Islands court held the first five examples of “claim” in the statutory definition (“any civil lawsuit, complaint, cause of action, cross-claim or counter-claim”) all differ from a subpoena because they involve a request for relief from the court, and not a request for information from a party or other person.
Next, the Virgin Islands court held the term “other judicial pleading” in the statutory definition of “claim” did not include subpoenas because Superior Court Rule 7(a) limits pleading to “complaints and answers, replies to counterclaims, answers to cross-claims, and third party complaints and answers.” Finally, like the VanderSloot court, the Virgin Islands court held that, because subpoenas are not a “judicial” filing or a “filing requesting relief,” as those terms are commonly used in judicial proceedings, the subpoena did not qualify under the catch-all provision of the “claim” definition. The court thus denied CEI’s motion to dismiss. It also denied CEI’s motion for fees under the anti-SLAPP statute, holding that, because the statute did not apply to the subpoena, CEI was not a prevailing party.
The DC anti-SLAPP statute allows the court to award fees and costs to the non-moving party if the motion “is frivolous or is solely intended to cause unnecessary delay.” The Virgin Islands Attorney General argued that standard was satisfied here because it had already agreed to withdraw the subpoena before CEI filed its anti-SLAPP special motion to dismiss. The court accepted CEI’s argument that the threat of future litigation (if the Virgin Islands re-served the subpoena) did not render the motion moot/frivolous, so it denied the Virgin Islands’ request for fees.
The D.C. anti-SLAPP statute has most often been used in cases involving claims of defamation. See Boley v. Atlantic Monthly Group; Moore v. Costa. It has also been successfully invoked in cases involving defamation-related claims. See, e.g., Farah v. Esquire Magazine, Inc. (false light invasion of privacy, Lanham Act, misappropriation invasion of privacy); Forras v. Rauf (false light, assault, intentional infliction of emotional distress). We can now add intentional interference with existing contracts and tortious interference with business expectancies to the list of claims against which a successful anti-SLAPP special motion to dismiss has been made.
In February, I wrote about Fridman v. Bean LLC, where “three international businessmen” claim they were defamed by certain statements in one of the reports comprising the “Trump Dossier.” The defendants (Fusion GPS and Glenn Simpson, who allegedly retained Christopher Steele to research any Russian connections to Trump) filed an anti-SLAPP special motion to dismiss the suit.
The plaintiffs have filed their opposition to the anti-SLAPP special motion to dismiss, and the defendants have filed their reply brief. Beyond the usual sparring over whether Mann means the statute can again apply in a federal court case, both briefs raise interesting arguments worth exploring in more detail.
In its Abbas decision, the DC Circuit held that, because it believed the standard contemplated by the DC anti-SLAPP statute conflicted with the standards required under Federal Rules of Civil Procedure 12 and 56, the statute could not apply in a federal court diversity case. Although the DC Court of Appeals in Mann then stated that “the standard to be employed by the court in deciding whether to grant the motion” “is substantively the same” as that under the Federal Rules, two DC federal district judges have nevertheless held the DC anti-SLAPP statute still cannot apply in a federal court diversity case (discussed here and here).
A reader recently brought another opinion to my attention: issued in January in Democracy Partners v. Project Veritas Action Fund. There, Democracy Partners sued various defendants for allegedly infiltrating its offices through misrepresentations, stealing confidential documents, and secretly recording hours of conversations.
The Democracy Partners opinion finds this distinction to be without a difference. The court explained that, in its Abbas decision, the DC Circuit applied the Supreme Court’s Shady Grove opinion, which has not been limited to diversity jurisdiction cases. Thus, the court concludes that Shady Grove and, by extension, Abbas, apply to a case based on federal question jurisdiction in the same way they apply to a case based on diversity jurisdiction.
The Democracy Partners opinion explains that “any other conclusion would create an irrational distinction in the treatment of identical state law claims.” Of course, one could argue that, by refusing to apply the DC anti-SLAPP statute in federal court, although it applies to the same claims in Superior Court, the DC Circuit has “create[d] an irrational distinction in the treatment of identical state law claims”! Anyway, the DC federal district court, for the first time I believe, holds the DC anti-SLAPP statute does not apply to those DC claims brought in a federal court case grounded in federal question jurisdiction.
For those hoping that, after the DC Court of Appeals’ Mann decision, DC federal district judges would again apply the DC anti-SLAPP statute in a diversity suit, as multiple judges had done before the DC Circuit’s Abbas decision, they are going to have to wait longer. A second DC federal district judge has now concluded that – despite Mann – the DC anti-SLAPP statute cannot apply in a DC federal court diversity case.


My spouse gave me a life estate in our home. Am I responsible for paying insurance premiums and taxes on the property? Am I responsible for paying the mortgage? – West Virginia Senior Legal Aid, Inc.
West Virginia Senior Legal Aid, Inc.
My spouse gave me a life estate in our home. Am I responsible for paying insurance premiums and taxes on the property? Am I responsible for paying the mortgage?
In general, the life tenant is not required to keep the property insured, unless there is a specific agreement to do so. However, a life tenant does have an insurable interest in the property. An insurable interest is a substantial economic interest in the safety or preservation of the property. Because you live there, you have an insurable interest; therefore, you can insure the property if you want to. It may be a good idea to do so in order to protect both yourself and your interest in the house.
Under West Virginia law, a life tenant is responsible for paying all ordinary taxes on the property. If the life tenant fails to pay the taxes, the state can foreclose on the property. In this situation, the remainderman’s interest will be seriously affected, and the life tenant will be liable to the remainderman. The remainderman is the person who will own the home after your life estate ends. However, you are only responsible for the taxes accrued during your possession of the property. Past-due taxes must be paid by the estate.
If your spouse took out a mortgage on the property which is not paid off, you are responsible for paying the interest on the mortgage. However, you are not responsible for paying the principal of the mortgage. Furthermore, you will not even be responsible for paying the interest if it exceeds the fair rental value of the property.
For more information, see: W. Va. Code § 11-3-8 (2015); Boggess v. Scott, 48 W. Va. 316, 37 S.E. 661 (1900) (questioned by Bailey v. Baker, 137 W. Va. 85, 68 S.E.2d 74, 70 S.E.2d 645 (1951)); McDougal v. Musgrave, 46 W. Va. 509, 33 S.E. 281 (1899); Irwin v. Zane, 15 W. Va. 646 (1879); 31 C.J.S. Estates §§44-46 (2009); 7A Michie’s Jurisprudence Estates §27 (2009).
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text:
[303 U.S. 453, 455] Mr. J. Paul St. Sure, of Oakland, Cal., for appellant.
[303 U.S. 453, 457] Mr. Charles Fahy, of Washington, D.C., for respondent.
The National Labor Relations Board on April 2, 1936, after hearing, found that petitioner, Santa Cruz Fruit Packing Company, a California corporation, had been engaged in unfair labor practices affecting commerce within the meaning of section 8, subdivisions (1) and (3) and section 2, subdivisions (6) and (7), of the National Labor Relations Act, 29 U.S.C.A . 158(1, 3), 152(6, 7), and ordered petitioner to desist from such practices, to reinstate with back pay certain employees who had been discharged, and to post appropriate notices. 1 N.L.R.B. 454. Upon petition of the Board, the Circuit Court of Appeals affirmed the order so far as it related to petitioner's employees at its Oakland plant. 9 Cir., 91 F.2d 790. In view of the importance of the question with respect to the application of the National Labor Relations Act, 29 U.S.C.A. 151 et seq., this court granted certiorari. 302 U.S. 680 , 58 S.Ct. 282, 82 L.Ed. --.
Petitioner is engaged at its plant at Oakland in canning, packing, and shipping fruit and vegetables, the bulk of [303 U.S. 453, 461] which are grown in that state. During the 'peak' season, petitioner employs from 1,200 to 1,500 persons, of whom about 30 are warehousemen. The total 'pack' in the year 1935 amounted to about 1,699,270 cases. Of this amount about 37 per cent. were shipped in interstate or foreign commerce, 9.02 per cent. being sent to foreign countries and approximately 473,620 cases, or about 27.89 per cent. to various points in the United States outside California. The sales to purchasers outside the state were under either f.o.b. or c.i.f. San Francisco Bay Point contracts.
The methods of transportation are by water, rail, and truck. Export shipments go by water, and this is also the chief sort of carriage to points within the United States outside California; about 20 per cent. being shipped by rail and an undetermined amount by truck directly to the point of destination. 'There is a constant stream of loading and shipping of products' out of petitioner's plant throughout the entire year. From 3, 000 to 4,000 cases are loaded daily in the various vehicles of conveyance. That loading is a substantial and regular part of the work of the warehousemen in petitioner's employ. When the shipments are by rail or overland trucks, these employees load directly into the equipment of the principal carriers. When shipments are by boat, the warehousemen load the cases into the trucks which carry the goods to the docks.
Weighers, Warehousemen and Cereal Workers Local 38-44, International Longshoremen's Association, is a labor organization affiliated with the American Federation of Labor. Its efforts to organize the Oakland plant were begun in July, 1935, and many of the permanent warehousemen made application for membership. When this came to the attention of petitioner early in August, the general manager announced that he would not permit a union in the plant because of competitive conditions. On their return from a union meeting at which the men [303 U.S. 453, 462] were to be initiated, members of the night shift were prevented from entering the plant, and the next morning the members of the day crew were similarly excluded. A picket line then formed, on the morning of August 8th, was maintained until September 27th with such effectiveness that eventually the movement of trucks from warehouses to wharves ceased entirely. The Board found: 'The teamsters refused to haul Santa Cruz merchandise; the warehousemen at the dock warehouses who ordinarily unload the canned goods from the cars prior to their reloading into the ships, since they were members of the same union as the Santa Cruz warehousemen, also declined to handle Santa Cruz cargo. As members of the sister union, I.L.A. 38-79, the stevedores who move the goods from dock to ship also refused to move Santa Cruz cargo both at the East Bay and San Francisco docks during the entire period that the picket line was maintained. Other unions whose members refused to move 'hot' Santa Cruz cargo were those members of the Sailors who comprised the crews of steam schooners and whose duties include the handling of cargo.' Petitioner points out that the refusal of the other unions to handle petitioner's goods was a violation of an arbitration award made in October, 1934, following the San Francisco maritime strike of that year.
The Board found that interference with the activities of employees in forming or joining labor organizations results in strikes and industrial unrest which habitually have had the effect in the canning industry of impeding the movement of canned products in interstate and foreign commerce. Reference was made to official statistics of the United States Department of Labor in relation to the canning and preserving industries from which it appeared that of the fifteen strikes and lockouts in 1934, and the first six months of 1935, eight were the outcome of difficulties in regard to union recognition and discrimi- [303 U.S. 453, 463] nation for union activities; 7,484 workers being involved in those stoppages.
First. There is no question that petitioner was directly and largely engaged in interstate and foreign commerce. We have often decided that sales to purchasers in another state are not withdrawn from federal control because the goods are delivered f.o.b. at stated points within the state of origin for transportation. See Savage v. Jones, 225 U.S. 501, 520 , 32 S.Ct. 715; Texas & N.O.R. Co. v. Sabine Tram Co., 227 U.S. 111, 114 , 122 S., 33 S.Ct. 229; Pennsylvania R. Co. v. Clark Bros. Coal Mining Co., 238 U.S. 456 , 465-468, 35 S.Ct. 896. A large part of the interstate commerce of the country is conducted upon the basis and the arrangements that are made between seller and purchaser with respect to the place of taking title to the commodity, or as to the payment of freight, where the actual movement is interstate, does not affect either the power of Congress or the jurisdiction of the agencies which Congress has established. Pennsylvania R. Co. v. Clark Bros. Coal Mining Co., supra.
Petitioner urges that the principle is inapplicable here as the fruits and vegetables which petitioner prepares for shipment are grown in California and petitioner's operations are confined to that state. It is not a case where the raw materials of production are brought into the state of manufacture and the manufactured product is handled by the manufacturer in other states. In view of the interstate commerce actually carried on by petitioner, the conclusion sought to be drawn from this distinction is without merit. The existence of a continuous flow of interstate commerce through the state may indeed readily show the intimate relation of particular transactions to that commerce. Stafford v. Wallace, 258 U.S. 495, 516 , 42 S.Ct. 397, 402, 23 A.L.R. 229; Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 33 , 43 S.Ct. 470, 476. But, as we said in the Jones & Laughlin Case, the instances in which the metaphor of a 'stream of commerce' has been used are but particular, and not exclusive, illustrations of the protective power which Congress may exercise. 'The congressional authority to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of a 'flow' of interstate or foreign commerce. Burdens and obstructions may be due to injurious actions springing from other sources.' Id., 301 U.S. 1 , at page 36, 57 S.Ct. 615, 624, 108 A.L.R. 1352. [303 U.S. 453, 465] Such injurious action burdening and obstructing interstate trade in manufactured articles may spring from labor disputes irrespective of the origin of the materials used in the manufacturing process. And the place where the manufacturer makes his sales is not controlling if the sales in fact are in interstate commerce. A few illustrations, from our many decisions, will suffice. In Loewe v. Lawlor, 1908, 208 U.S. 274, 302 , 28 S. Ct. 301, 13 Ann.Cas. 815, the conspiracy of the 'United Hatters,' to compel the plaintiffs to unionize their factory, was held to fall within the Federal Anti-Trust Act, 15 U.S.C.A. 1 et seq., because it was aimed at the destruction of the interstate trade in the manufactured hats. In United Mine Workers v. Coronado Coal Co., 1922, 259 U.S. 344, 407 , 408 S., 42 S.Ct. 570, 582, 27 A.L.R. 762, the Court said that 'Coal mining is not interstate commerce, and the power of Congress does not extend to its regulation as such,' but that, 'if Congress deems certain recurring practices though not really part of interstate commerce, likely to obstruct, restrain or burden it, it has the power to subject them to national supervision and restraint.' And in the second Coronado Case, 1925, 268 U.S. 295, 310 , 45 S.Ct. 551, 556, the Court held that the evidence was adequate to show that the purpose was to stop the production of nonunion coal and prevent its shipment to markets of other states, and that a combination to that end would constitute a direct violation of the Anti-Trust Act, 15 U.S.C.A. 1 et seq. Another illustration is found in Bedford Cut Stone Company v. Journeyman Stone Cutters' Association, 1927, 274 U.S. 37, 48 , 47 S.Ct. 522, 525, 54 A.L.R. 791, where a conspiracy of stonecutters was held to have 'the immediate purpose and necessary effect of restraining future sales and shipments in interstate commerce' of the building stone which was quarried at petitioners' plants.
With respect to the federal power to protect interstate commerce in the commodities produced, there is obviously no difference between coal mined, or stone quarried, and fruit and vegetables grown. The same principle must apply, and has been applied, to injurious restraints of [303 U.S. 453, 466] interstate trade which are caused by the practices of manufacturers and processors. Standard Oil Company v. United States, 221 U.S. 1 , 31 S.Ct. 502, 34 L.R.A.,N.S., 834, Ann.Cas.1912D, 734; United States v. American Tobacco Company, 221 U.S. 106 , 31 S.Ct. 632. The case of Carter v. Carter Coal Company, 298 U.S. 238 , 56 S.Ct. 855, did not establish a different principle or overrule the decisions which we have cited. See National Labor Relations Board v. Jones & Laughlin Steel Corporation, supra, 301 U.S. 1 , at page 41, 57 S.Ct. 615, 626, 108 A.L.R. 1352. Nor are the cases in point which are cited by petitioner with respect to the exercise of the power of the state to tax goods, which have not begun to move in interstate commerce or have come to rest within the state, or to adopt police measures as to local matters. In that class of cases the question is not with respect to the extent of the power of Congress to protect interstate commerce, but whether a particular exercise of state power in view of its nature and operation must be deemed to be in conflict with that paramount authority. Bacon v. Illinois, 227 U.S. 504, 516 , 33 S.Ct. 299; Stafford v. Wallace, supra, 258 U.S. 495 , at page 526, 42 S.Ct. 397, 405, 23 A.L.R. 229; Minnesota v. Blasius, 290 U.S. 1, 8 , 54 S.Ct. 34, 36.
Third. It is also clear that where federal control is sought to be exercised over activities which separately considered are intrastate, it must appear that there is a close and substantial relation to interstate commerce in order to justify the federal intervention for its protection. However difficult in application, this principle is essential to the maintenance of our constitutional system. The subject of federal power is still 'commerce,' and not all commerce but commerce with foreign nations and among the several states. The expansion of enterprise has vastly increased the interests of interstate commerce, but the constitutional differentiation still obtains. Schechter Poultry Corporation v. United States, 295 U.S. 495, 546 , 55 S.Ct. 837, 850, 97 A.L.R. 947. 'Activities local in their immediacy do not become interstate and national because of distant repercussions.' Id., 295 U.S. 495 , at page 554, 55 S.Ct. 837, 853, 97 A.L.R. 947.
To express this essential distinction, 'direct' has been contrasted with 'indirect,' and what is 'remote' or 'dis- [303 U.S. 453, 467] tant' with what is 'close and substantial.' Whatever terminology is used, the criterion is necessarily one of degree and must be so defined. This does not satisfy those wo seek for mathematical or rigid formulas. But such formulas are not provided by the great concepts of the Constitution such as 'interstate commerce,' 'due process,' 'equal protection.' In maintaining the balance of the constitutional grants and limitations, it is inevitable that we should define their applications in the gradual process of inclusion and exclusion.
There is thus no point in the instant case in a demand for the drawing of a mathematical line. And what is reasonably clear in a particular application is not to be overborne by the simple and familiar dialectic of suggesting doubtful and extreme cases. The critical words of the provision of the National Labor Relations Act in dealing with the described labor practices are 'affecting commerce,' as defined. Section 2( 7), 29 U.S.C.A. 152(7). It is plain that the provision cannot be applied by a mere reference to percentages, and the fact that petiioner's sales in interstate and foreign commerce amounted to 37 per cent., and not to more than 50 per cent., of its production cannot be deemed controlling. The question that must be faced under the act upon particular facts is whether the unfair labor practices involved have such a close and substantial relation to the freedom of interstate commerce from injurious restraint that these practices may constitutionally be made the subject of federal cognizance through provisions looking to the peaceable adjustment of labor disputes.
The question of degree is constantly met in other relations. It is met whenever the Interstate Commerce Commission is required to find whether an intrastate rate or practice of an interstate carrier causes an undue and unreasonable discrimination against interstate or foreign commerce. 49 U.S.C. 13(4), 49 U.S.C.A. 13(4). The Shreveport Case, 234 U.S. 342, 351 , 34 S.Ct. 833. It is met under the Federal Employers' Liability Act, where the question is whether the [303 U.S. 453, 468] employee's occupation at the time of his injury is 'in interstate transportation, or in work so closely related to such transportation as to be practically a part of it.' Chicago & Northwestern R. Co. v. Bolle, 284 U.S. 74, 78 , 79 S., 52 S.Ct. 59, 61; New York, New Haven & Hartford R. Co. v. Bezue, 284 U.S. 415, 420 , 52 S.Ct. 205, 207, 77 A.L.R. 1370. It is met in the enforcement of the Clayton Act in determining whether the effect of the described provisions in contracts for the sale of commodities is 'to substantially lessen competition.' 15 U. S.C. 13, 14, 15 U.S.C.A. 13, 14. Standard Fashion Company v. Magrane- Houston Company, 258 U.S. 346, 356 , 357 S., 42 S.Ct. 360, 362; Federal Trade Commission v. Raladam Company, 283 U.S. 643, 647 , 648 S., 51 S. Ct. 587, 589, 79 A.L.R. 1191.
Fourth. The direct relation of the labor practices and the resulting labor dispute in the instant case to interstate commerce and the injurious effect upon that commerce are fully established. The warehousemen in question were employed by petitioner in loading its goods either into the cars of carriers or into the trucks which transported the goods to the docks for shipment abroad or to other states. The immediacy of the effect of the forbidden discrimination against these warehousemen is strikingly shown by the findings of the Board. When the men found themselves locked out because of their joining the union, they at once formed a picket line, and this was maintained with such effectiveness that eventually 'the movement of trucks from warehouse to wharves ceased entirely.' The teamsters refused to haul, the warehousemen at the dock warehouses declined to handle, and the stevedores between dock and ship refused to load, petitioner's goods. These became, in the parlance of the men, 'hot' cargo. Petitioner says that this was an unlawful conspiracy of those sympathizing with its discharged warehousemen, but it was the discrimination against them which led directly to the interference [303 U.S. 453, 469] with the movement from the plant and elicited the support so effectively given.
Carter v. Carter Coal Co., 298 U.S. 238 , 56 S.Ct. 855, decided that Congress lacks power to regulate terms and conditions of employment of those engaged in local production of commodities sold and about to be shipped in interstate commerce. The Circuit Court of Appeals found two questions for solution. One was whether upon that point the Carter Case, in 1936, has been overruled by our decision in 1937 in National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 , 57 S.Ct. 615, 108 A.L.R. 1352. The second was whether the power extends to cases where only 39 per cent. of goods locally produced are shipped in interstate commerce. The court, one judge dissenting, upheld the order. Each of the judges wrote an opinion; two held this Court has overruled the Carter Case.
But the dissent failed to elicit from the Court any statement as to whether it meant to overrule the Carter Case. The opinion does not discuss that case. It does, however, contain the following (page 41 of 301 U.S., page 626 of 57 S.Ct.): 'In the Carter Case ... the Court was of the opinion that the provisions of the statute relating to production were invalid upon several grounds,-that there was improper delegation of legislative power, and that the requirements not only what beyond any sustainable measure of protection of interstate commerce but were also inconsistent with due process. These (meaning the Schechter and Carter) cases are not controlling here.' The later decisions of this Court involving the power of Congress to deal with labor relations in local production do not refer to the Carter Case. At least until this Court definitely overrules that decision, it should be followed.

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Guest post from Ashwin Madia.
The U.S. Supreme Court will hear arguments regarding the constitutionality of The Patient Care and Affordable Care Act in March 2012. The Affordable Care Act stands as President Obama’s signature domestic achievement, promising affordable health insurance to every American. Congress narrowly passed the statute in March 2010 after a heated national debate. Opponents quickly filed suit to have key provisions declared unconstitutional.
Of the four federal appellate courts to rule thus far, three have upheld the law in its entirety while one declared the Act’s key provision—the individual mandate—unconstitutional. This post will discuss the background and important provisions of the Act, key arguments on both sides of its constitutionality, and what will likely prove to be the most important factor in the Supreme Court’s ultimate decision.
Corporations may be imaginary people, but last week, the U.S. Supreme Court held that imaginary people are entitled to free speech. Along with trolls and gnomes, presumably.
The U.S. Supreme Court likes business. So much so that it decided 22 of 30 business cases last term unanimously in favor of business, and “Ruth Bader Ginsburg, Stephen Breyer and David Souter each went out of his or her way to question the use of lawsuits to challenge corporate wrongdoing . . . .” Guess the business community’s campaign to change the Court has largely worked.
The Supreme Court handed down two anticipated FCRA decisions yesterday, Safeco v. Burr and Geico v. Edo. Consumer Law & Policy has a detailed report on the decisions, and will no doubt analyze them in greater detail in the coming days. In brief, the cases were a victory for consumers, but not quite cause for celebration.
The FCRA requires certain entities to notify consumers when they take an adverse action based on the consumer’s credit report. As you may recall, insurance companies have been using credit reports as a component of setting insurance premiums for some time. Safeco and Geico both deal with this.
In Safeco v. Burr, the Court decided that a defendant commits a “willful” violation of the FCRA if he or she recklessly disregards the law (in this case, requiring an insurance company to notify the consumer when taking an adverse action–setting a higher premium–based on their credit report). The insurance companies hoped for a looser interpretation, that would allow them to violate the law if they didn’t know (and didn’t care) they were violating it.
Overall, however, the cases are not so positive for consumers, because an insurance company that takes an adverse action against an insurance customer based on his or her credit report can apparently escape liability under the FCRA if the consumer got the same rate with or without taking the score into account (the facts in Geico). Safeco, it turns out, was not reckless because it had no guidance on FCRA notification from the FTC or courts of appeals.
In other words, you are liable if you act with reckless disregard for the law, but you aren’t liable if your reckless disregard doesn’t harm the consumer. This sort of conflates the two components of any case, liability and damages.
On balance, however, this means that consumers should see a bit more transparency when it comes to credit reports and insurance premiums. On the other hand, a number of open questions as a result of the decisions mean it may be years before the credit report/insurance premium issue reaches any real resolution.
The Office of the Comptroller of Currency is the federal administrative agency charged with overseeing nationally-chartered banking institutions such as Wells Fargo, US Bank, and in this case, Wachovia Bank. However, nobody has been able to say that line without smirking for years, because whatever the OCC does, it isn’t overseeing banks or enforcing regulatory laws.
But what about non-nationally-chartered banks? What about non-nationally-chartered banks owned by nationally-chartered banks?
Let’s find out: Watters v. Wachovia Bank, N.A.. In brief, Wachovia sued the State of Michigan because Michigan didn’t want to have to register as a mortgage lender in Michigan. Wachovia claims it was complying with Michigan laws; it just didn’t want to register there. The OCC swooped in and issued regulations preventing any state from regulating subsidiaries of nationally-chartered banks even though those subsidiaries are not also nationally-chartered banks.
The case ended up in the Supreme Court, which decided that non-nationally-chartered banks owned by nationally-chartered banks are not subject to state law, even though non-nationally chartered banks that are not owned by nationally-chartered banks are subject to state laws.
Confused? Me too, but here is the gist of it. What this really means is that if, say, Wachovia Mortgage writes you a fraudulent loan, you can’t sue them under state law. This is a big problem, because federal law currently provides little or no recourse for common scams like equity stripping and the subprime lending fiasco now making headlines, where major lenders may write dozens of loans to an equity stripper or broker that the lender knows or should know are funding consumer fraud. And the OCC isn’t likely to do anything, so consumers may be left without recourse. Ouch.
A murderer who kills his victim by throwing a bomb that injures dozens of bystanders should be punished more severely than one who harms no one other than his intended victim. Similarly, there is no reason why the measure of the appropriate punishment for engaging in a campaign of deceit in distributing a poisonous and addictive substance to thousands of cigarette smokers statewide should not include consideration of the harm to those Â“bystandersÂ” as well as the harm to the individual plaintiff.
Yesterday, the U.S. Supreme Court heard oral argument in Phillip Morris v. Williams, a tobacco case from Oregon where a jury awarded $79 million to the plaintiff. The issue on appeal is whether juries can award punitive damages for harm to third parties not involved in the lawsuit, and places the Rehnquist Court’s BMW v. Gore analysis in the crosshairs (partially, at least).
The Rehnquist Court frequently slashed punitive damages awards based on a three-pronged analysis: (1) the degree of reprehensibility of the conduct; (2) the ratio between punitive and compensatory damages; and (3) a comparison of the amount of punitive damages to any civil or criminal penalties that could be imposed for comparable misconduct.
Deepak Gupta at the Consumer Law & Policy Blog has more, along with links to the oral argument transcript and reactions from media and the blogosphere.
Law schools across the country have, in recent years, banned military recruiters from their campuses because of the military’s “don’t ask, don’t tell” policy on gays. The catch is that many law schools receive federal funding, one of the conditions to which is that the law schools must allow military recruiters on campus.
The federal law, known as the Solomon Amendment after its first congressional sponsor, mandates that universities give the military the same access as other recruiters or forfeit federal money.
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waynes world, Pat V., Davey and 1 other person like this.
That is my fav from your group, @otisblove!!
Every time I come spend some weeks at the summer cottage, I bring a different guitar. Flavour of this July is my G400 Vintage with Tyson Tone PAFs in it.
waynes world, jamminfool, Pat V. and 1 other person like this.
Going to a pool party today. All the jam guys are invited plus friends and neighbours. I play bass. Although the host has a full set of equipment in the rec. room - drums, guitars, bass and amps & PA, I don't anticipate that we'll play anything. Today, I get a text saying to bring the acoustic guitar. I'm pretty rusty, but I'll take my Tacoma dreadnaught and try to follow along with what the others are playing. They'll likely play different material than the electric soul-blues-rock that we usually do when jamming.
jamminfool, Pat V. and AllroyPA like this.
My beloved and heavily modded SQ. Got it really cheap because it had a refin, there was a snall fretboard repair at the nut and one of the original pickups had died. The guy who sold it, bought a VM70s to replace it. Ah well ... in the meantime, I installed locking tuners, brass block, brass nut, a set of Tex Mex PUs and a parchment pickguard.
waynes world, jamminfool, Pat V. and 5 others like this.
Been playing this alot since I put it together.
waynes world, jamminfool, DaveDrums and 4 others like this.
My Bullet Strat. Last March I brought it home, along with a Marshall Code 25. I went away for a while, came back and found they'd had a brand new Cry Baby wah, the first I've ever owned. Went away again, came back and found a Vox Amplug and Fender clip-on tuner as well.
If I left them alone for a whole month, maybe I'd find a Squier mini Strat? And an Affinity after six months?
jamminfool, Pat V., AllroyPA and 1 other person like this.
My Fender MIM Standard Telecaster.
waynes world, jamminfool, Loin Lover and 2 others like this.
Played around with this all week.
jamminfool, Loin Lover, Pat V. and 1 other person like this.
jamminfool, VealCutlet and Pat V. like this.
jamminfool, VealCutlet, Pat V. and 1 other person like this.
AngelDeVille, jamminfool, VealCutlet and 4 others like this.
As usual, I played a couple today. Started off with a maple neck Strat, shifted to a Sheraton, and now going to a rosewood neck Strat.
Picked up this Epi. 56 pro from guitar center a couple weeks ago. Still have trouble sitting it down.
DrBeGood, jamminfool, VealCutlet and 3 others like this.
I play the Strat in my avatar 99% of the time, which is an American Pro with rosewood board.
jamminfool, VealCutlet and DaveDrums like this.

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