text:
The Education of the Handicapped Act (EHA) - which enacts a comprehensive scheme to assure that handicapped children may achieve a free public education appropriate for their needs - provides, inter alia, that parents may challenge the appropriateness of their child's "individualized education program" (IEP) in an administrative hearing with subsequent judicial review. Respondent Muth (hereinafter respondent) requested a hearing to contest the local school district's IEP for his son Alex, who is handicapped within the meaning of the EHA. Before the hearing was convened, respondent enrolled Alex in a private school. Alex's IEP then was revised and declared appropriate by the hearing examiner, and that decision was affirmed by Pennsylvania's secretary of education more than one year after the original hearing. While the administrative proceedings were under way, respondent brought suit in the Federal District Court against the school district and the secretary challenging the appropriateness of the IEP and the validity of the administrative proceedings and seeking, among other things, reimbursement for Alex's private-school tuition and attorney's fees. The court found that, while the revised IEP was appropriate, procedural flaws had delayed the administrative process and that, since the EHA had abrogated the Commonwealth's Eleventh Amendment immunity from suit, the school district and the Commonwealth were jointly and severally liable for reimbursement of Alex's tuition and attorney's fees. The Court of Appeals affirmed.
The EHA does not abrogate the States' Eleventh Amendment immunity from suit, and, thus, the Amendment bars respondent's attempt to collect tuition reimbursement from Pennsylvania. Pp. 227-232.
(a) Congress may abrogate the States' immunity only by making its intention "unmistakably clear in the language of the statute." Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 . Pp. 227-228.
(b) Respondent's nontextual arguments - that abrogation is necessary to meet the EHA's goals and that amendments to the Rehabilitation Act, though not retroactively applicable to respondent's suit, evince a previous intention to abrogate immunity from EHA suits - have no bearing on the abrogation analysis since congressional intent must be unmistakably [491 U.S. 223, 224] clear in the statute's language. Although nontextual evidence might have some weight under a normal exercise in statutory construction, it is generally irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment. The argument that application of the Atascadero standard is unfair in this case because Congress could not have foreseen that application is premised on an unrealistic view of the legislative process. It is unlikely that the 94th Congress, taking careful stock of the state of Eleventh Amendment law, would drop coy hints but stop short of making its intention manifest. Pp. 228-230.
(c) The EHA provisions relied on by the Court of Appeals - the preamble's statement of purpose, the 1986 amendments dealing with attorney's fees, and the authorization for judicial review - do not address abrogation even in oblique terms. The statutory structure - which, unlike the Atascadero statute, makes frequent references to States - lends force only to a permissible inference that States are logical defendants and is not an unequivocal declaration of congressional intent to abrogate. Pp. 231-232.
839 F.2d 113, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, O'CONNOR, and SCALIA, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. 233. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post, p. 233. BLACKMUN, J., post, p. 243, and STEVENS, J., post, p. 243, filed dissenting opinions.
Maria Parisi Vickers, Chief Deputy Attorney General of Pennsylvania, argued the cause for petitioner. With her on the briefs were LeRoy S. Zimmerman, former Attorney General, Ernest D. Preate, Jr., Attorney General, John G. Knorr III, Chief Deputy Attorney General, and Gregory R. Neuhauser, Senior Deputy Attorney General.
[ Footnote * ] Lacy H. Thornburg, Attorney General, and Edwin M. Speas, Jr., Special Deputy Attorney General, filed a brief for the State of North Carolina as amicus curiae urging reversal.
The Education of the Handicapped Act (EHA), 84 Stat. 175, as amended, 20 U.S.C. 1400 et seq. (1982 ed. and Supp. V.), enacts a comprehensive scheme to assure that handicapped children may receive a free public education appropriate to their needs. To achieve these ends, the Act mandates certain procedural requirements for participating state and local educational agencies. In particular, the Act guarantees to parents the right to participate in the development of an "individualized education program" (IEP) for their handicapped child, and to challenge the appropriateness of their child's IEP in an administrative hearing with subsequent judicial review. See 20 U.S.C. 1415 (1982 ed. and Supp. V); School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359, 361 (1985).
Alex Muth, the son of respondent Russell Muth (hereinafter respondent), is a bright child, but one handicapped within the meaning of the EHA by a language learning disability and associated emotional problems. Alex was enrolled in public school in the Central Bucks School District of Pennsylvania from 1980 to 1983. In the summer of 1983, respondent requested a statutory administrative hearing to challenge the district's IEP for Alex. In September, shortly before the hearing convened, respondent enrolled Alex in a private school for learning disabled children for the coming school year.
The hearing examiner found that Alex's original IEP was inappropriate and made a number of recommendations. Both respondent and the school district then appealed the decision to the secretary of education, as provided under Pennsylvania law, see 22 Pa. Code 13.32(24) (1988). The secretary remanded the case to the hearing examiner with instructions [491 U.S. 223, 226] to the school district to revise Alex's IEP (1988). After the district did so, the hearing examiner issued a decision declaring the revised IEP appropriate, and the secretary affirmed that decision on October 24, 1984, more than a year after the original due process hearing.
While the administrative proceedings were underway, respondent brought this suit in the Eastern District of Pennsylvania against the school district and the state secretary of education, whose successor is petitioner here. As amended, respondent's complaint alleged that the district's IEP for Alex was inappropriate and that the Commonwealth's administrative proceedings had violated the procedural requirements of the EHA in two respects: the assignment of review to the secretary, an allegedly partial officer; and the delays occasioned by the secretary's remand to the hearing examiner. Respondent requested declaratory and injunctive relief, reimbursement for Alex's private-school tuition in 1983-1984, and attorney's fees.
The District Court found various procedural infirmities in Pennsylvania's administrative scheme and entered summary judgment on respondent's procedural claims. The court held a hearing to resolve the remaining issues in the case and to determine the proper remedy for the procedural violations. The court concluded that, while the district's proposed IEP for 1983-1984 had been appropriate within the meaning of the EHA, respondent was entitled to reimbursement for Alex's tuition that year because the procedural flaws had delayed the administrative process. The District Court further determined that the school district and the Commonwealth of Pennsylvania were jointly and severally liable, agreeing with respondent that the EHA abrogated Pennsylvania's Eleventh Amendment immunity from suit. The court also awarded attorney's fees, assessed jointly and severally against the school district and the Commonwealth.
The United States Court of Appeals for the Third Circuit affirmed. Muth v. Central Bucks School Dist., 839 F.2d 113 [491 U.S. 223, 227] (1988). Most pertinent for this case, the Court of Appeals agreed with the District Court that the Eleventh Amendment did not bar the reimbursement award against the Commonwealth. The court concluded that "the text of EHA and its legislative history leave no doubt that Congress intended to abrogate the 11th amendment immunity of the states." Id., at 128.
To resolve a conflict among the Circuits, we granted certiorari sub nom. Gilhool v. Muth, 488 U.S. 815 (1988), on the question whether the EHA abrogates the States' sovereign immunity under the Eleventh Amendment. Compare David D. v. Dartmouth School Committee, 775 F.2d 411 (CA1 1985) (finding abrogation), with Gary A. v. New Trier High School Dist. No. 203, 796 F.2d 940 (CA7 1986); Doe v. Maher, 793 F.2d 1470 (CA9 1986); and Miener v. Missouri, 673 F.2d 969 (CA8 1982) (finding no abrogation). We now reverse.
We have recognized that Congress, acting in the exercise of its enforcement authority under 5 of the Fourteenth Amendment, 1 may abrogate the States' Eleventh Amendment immunity. Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). We have stressed, however, that abrogation of sovereign immunity upsets "the fundamental constitutional balance between the Federal Government and the States," Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238 (1985), placing a considerable strain on "`[t]he principles of federalism that inform Eleventh Amendment doctrine,'" Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984), quoting Hutto v. Finney, 437 U.S. 678, 691 (1978). To temper Congress' acknowledged powers of [491 U.S. 223, 228] abrogation with due concern for the Eleventh Amendment's role as an essential component of our constitutional structure, we have applied a simple but stringent test: "Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute." Atascadero, supra, at 242.
In concluding that the EHA contains the requisite clear statement of congressional intent, the Court of Appeals rested principally on three textual provisions. The court first cited the Act's preamble, which states Congress' finding that "it is in the national interest that the Federal government assist State and local efforts to provide programs to meet the education needs of handicapped children in order to assure equal protection of the law." 20 U.S.C. 1400(b)(9). Second, and most important for the Court of Appeals, was the Act's judicial review provision, which permits parties aggrieved by the administrative process to "bring a civil action . . . in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy." 20 U.S.C. 1415(e)(2). Finally, the Court of Appeals pointed to a 1986 amendment to the EHA, which states that the Act's provision for a reduction of attorney's fees shall not apply "if the court finds that the State or local educational agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of this section." 20 U.S.C. 1415(e)(4)(G) (1982 ed., Supp. V). In the view of the Court of Appeals, this amendment represented an express statement of Congress' understanding that States can be parties in civil actions brought under the EHA.
"A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of [several enumerated provisions] or the provisions of any other Federal statute prohibiting discrimination by recipients of [491 U.S. 223, 230] Federal financial assistance." 42 U.S.C. 2000d-7(a) (1) (1982 ed., Supp. IV).
More importantly, however, respondent's contentions are beside the point. Our opinion in Atascadero should have left no doubt that we will conclude Congress intended to abrogate sovereign immunity only if its intention is "unmistakably clear in the language of the statute." Atascadero, 473 U.S., at 242 . Lest Atascadero be thought to contain any ambiguity, we reaffirm today that in this area of the law, evidence of congressional intent must be both unequivocal and textual. Respondent's evidence is neither. In particular, we reject the approach of the Court of Appeals, according to which, "[w]hile the text of the federal legislation must bear evidence of such an intention, the legislative history may still be used as a resource in determining whether Congress' intention to lift the bar has been made sufficiently manifest." 839 F.2d, at 128. Legislative history generally will be irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment. If Congress' intention is "unmistakably clear in the language of the statute," recourse to legislative history will be unnecessary; if Congress' intention is not unmistakably clear, recourse to legislative history will be futile, because by definition the rule of Atascadero will not be met.
The gist of JUSTICE BRENNAN'S dissent's argument appears to be that application of the governing law in Atascadero is unfair in this case. The dissent complains that we "resor[t] to an interpretative standard that Congress could have anticipated only with the aid of a particularly effective crystal ball." Post, at 241. This complaint appears to be premised on an unrealistic and cynical view of the legislative process. We find it difficult to believe that the 94th Congress, taking careful stock of the state of Eleventh Amendment law, decided it [491 U.S. 223, 231] would drop coy hints but stop short of making its intention manifest. Rather, the salient point in our view is that it cannot be said with perfect confidence that Congress in fact intended in 1975 to abrogate sovereign immunity, and imperfect confidence will not suffice given the special constitutional concerns in this area. Cf. Johnson v. Robison, 415 U.S. 361, 373 -374 (1974) (federal statute will not be construed to preclude judicial review of constitutional challenges absent clear and convincing evidence of congressional intent).
At its core, respondent's attempt to distinguish this case from Atascadero appears to reduce to the proposition that the EHA "is replete with references to the states," whereas in "Atascadero . . . the statutory language at issue did not include mention of states." Brief for Respondent Muth 32-33. We recognize that the EHA's frequent reference to the States, and its delineation of the States' important role in securing an appropriate education for handicapped children, make the States, along with local agencies, logical defendants in suits alleging violations of the EHA. This statutory structure lends force to the inference that the States were intended to be subject to damages actions for violations of the EHA. But such a permissible inference, whatever its logical force, would remain just that: a permissible inference. It would not be the unequivocal declaration which, we affirm today, is necessary before we will determine that Congress intended to exercise its powers of abrogation.
We hold that the statutory language of the EHA does not evince an unmistakably clear intention to abrogate the States' constitutionally secured immunity from suit. 3 The Eleventh Amendment bars respondent's attempt to collect tuition reimbursement from the Commonwealth of Pennsylvania. The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.
[ Footnote 1 ] Petitioner concedes that the EHA was enacted pursuant to Congress' authority under 5 of the Fourteenth Amendment, and that Congress has the power to abrogate the Eleventh Amendment with respect to the Act. Tr. of Oral Arg. 14-15; see Atascadero State Hospital v. Scanlon, 473 U.S. 234, 244 -245, n. 4 (1985). We decide the case on these assumptions.
[ Footnote 2 ] Respondent also offers us another avenue to affirm the result below, which is to overrule the longstanding holding of Hans v. Louisiana, 134 U.S. 1 (1890), that an unconsenting State is immune from liability for damages in a suit brought in federal court by one of its own citizens. We decline this most recent invitation to overrule our opinion in Hans.
[ Footnote 3 ] Our grant of certiorari also embraced the question whether the EHA precluded petitioner from hearing administrative appeals. Since we conclude that the Commonwealth is not subject to suit under the EHA, and since the school district did not petition for review of the Court of Appeals decision, we have no occasion to reach this question.
I respectfully dissent from the Court's holding that the Commonwealth of Pennsylvania is immune from suit in the federal courts for violations of the Education of the Handicapped Act (EHA), 20 U.S.C. 1400 et seq. (1982 ed. and Supp. V). For reasons I have set out elsewhere, see Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 509 -511 (1987) (BRENNAN, J., dissenting); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 258 -302 (1985) (BRENNAN, J., dissenting), I would accept respondent Muth's invitation to overrule Hans v. Louisiana, 134 U.S. 1 (1890), as that case has been interpreted in this Court's recent decisions. Even if I did not hold that view, I would nevertheless affirm the decision of the Court of Appeals on the ground that Congress in the EHA abrogated state immunity.
The EHA imposes substantial obligations on the States, as well as on local education authorities, as might be expected in an Act authorizing federal financial aid "to assist States and localities to provide for the education of all handicapped children." [491 U.S. 223, 234] 20 U.S.C. 1400(c). To be eligible for federal assistance, a State must develop a plan for the education of all handicapped children and establish the procedural safeguards mandated in 1415. 1412(2), (5). It is the state educational agency that is "responsible for assuring that the requirements of [EHA Subchapter II, dealing with federal assistance for education of handicapped children] are carried out and that all educational programs for handicapped children within the State, including all such programs administered by any other State or local agency, [are] under the general supervision of the persons responsible for educational programs for handicapped children in the State educational agency." 1412(6). See Smith v. Robinson, 468 U.S. 992, 1010 (1984) ("The responsibility for providing the required education remains on the States"); Board of Education of Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 182 -183 (1982).
In accord with this overarching responsibility placed upon the States, the EHA contemplates that in a number of situations where a local education authority cannot or will not provide appropriate educational services to the handicapped, the State will do so directly. See 20 U.S.C. 1411(c)(4)(A)(ii) (State to assure provision of services where local authority barred from receiving federal funds because it has failed to submit a proper application); 1414(d) (State "to provide special education and related services directly to handicapped children residing in the area served by [a] local educational agency" that is unable or unwilling to establish or maintain programs, or to be merged with other local agencies to enable it to do so, or that has "handicapped children who can best be served by a regional or State center"). And in any event, where a local education authority would be entitled to less than $7,500 in EHA funding for a fiscal year, the State may not distribute the funds, but must use the funds itself to ensure provision of appropriate services. 1411(c)(4)(A)(i), [491 U.S. 223, 235] (c)(4)(B). Moreover, a State may choose to administer up to 25 percent of its federal funding itself, rather than distributing these funds to local education authorities, and use such funds to provide direct services to the handicapped. 1411(c)(1), (c)(2).
"it should be clear that a parent or guardian may present a complaint alleging that a State or local educational agency has refused to provide services to which a child may be entitled or alleging that a State or local educational agency has erroneously classified a child as a handicapped child." 121 Cong. Rec. 37415 (1975) (emphasis added).
In addition, he emphasized that "any party aggrieved by the findings and decision rendered in the due process hearing o[r] the State educational agency review of such hearing shall have the right to bring a civil action with respect to the original complaint," id., at 37416 (emphasis added), that is, with respect to the administrative complaint, which of course may allege EHA violations by the State. 2 The text and legislative [491 U.S. 223, 237] history of the EHA thus make it unmistakably clear that Congress there intended to abrogate state immunity from suit.
I dispute the Court's conclusion that the text of the EHA is equivocal. To my mind, immunity is "unequivocally" textually abrogated when state amenability to suit is the logical inference from the language and structure of the text. Cf. Edelman v. Jordan, 415 U.S. 651, 673 (1974) (a clear declaration of a State's consent to suit in federal court does not require "`express language,'" but may be found in "`overwhelming implications from the text [that] leave no room for any other reasonable construction,'" quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909)). The Court reaches the conclusion it does only because it requires more than an unequivocal text. In doing so, the Court is far removed from any real concern to discern a "clear and manifest" statement of congressional intent, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), which is all that the Court has otherwise looked for when inquiring into the meaning of congressional action, even "[i]n traditionally sensitive areas, such as legislation affecting the federal balance," United States v. Bass, 404 U.S. 336, 349 (1971).
Were the Court in fact concerned with Congress' intent it could not have adopted the strict drafting regulations it devises today, ruling out resort to legislative history and apparently also barring inferential reasoning from text and structure. The Court's justification for such a rule is that abrogation of immunity "upsets `the fundamental constitutional balance between the Federal Government and the States,' . . . placing considerable strain on `[t]he principles of federalism that inform Eleventh Amendment doctrine,'" and that a "stringent test" is necessary "[t]o temper Congress' acknowledged powers of abrogation with due concern for the Eleventh Amendment's role as an essential component of our constitutional structure." Ante, at 227-228. I maintain that the Court makes one very basic error here, for "[t]here simply is no constitutional principle of state sovereign immunity." Atascadero, 473 U.S., at 259 (BRENNAN, J., dissenting). But quite apart from that, the Court has never explained [491 U.S. 223, 239] why it is that the constitutional principle it has created should require a novel approach to ascertaining congressional intent. As I said in Atascadero, "special rules of statutory drafting are not justified (nor are they justifiable) as efforts to determine the genuine intent of Congress; no reason has been advanced why ordinary canons of statutory construction would be inadequate to ascertain the intent of Congress." Id., at 254. I entirely fail to see, for example, why the "clear and manifest purpose of Congress" to pre-empt under Article VI "the historic police powers of the States," Rice, supra, at 230, may be found in so many and various ways, while the Court in the Eleventh Amendment context insists on setting up ever-tighter drafting regulations that Congress must have followed (though Congress could not have been aware of such requirements when it acted) in order to abrogate immunity. A genuine concern to identify Congress' purpose would lead the Court to consider both the logical inferences to be drawn from the text and structure of the EHA, cf. Edelman v. Jordan, supra, at 673, and the statute's legislative history, see Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 283 -285 (1973) (examining legislative history in order to determine whether Congress abrogated Eleventh Amendment immunity), in deciding whether Congress intended to subject States to suit in federal court.
Though the special and strict drafting regulations the Court has now foisted on Congress are unjustifiable, still worse is the Court's retroactive application of these new rules. It would be one thing to tell Congress how in the future the Court will measure Congress' intent. That at least would ensure that Congress and this Court were operating under the same rules at the same time. But it makes no sense whatsoever to test congressional intent using a set of interpretative rules that Congress could not conceivably have foreseen at the time it acted - rules altogether different from, and much more stringent than, those with which Congress, reasonably relying upon this Court's opinions, believed itself [491 U.S. 223, 240] to be working. See Atascadero, supra, at 255, n. 7 (BRENNAN, J., dissenting). The effect of retroactively applying the Court's peculiar rule will be to override congressional intent to abrogate immunity, though such intent was absolutely clear under principles of statutory interpretation established at the time of enactment. Retroactive application of new drafting regulations in such circumstances is simply unprincipled. Cf. Welch, 483 U.S., at 496 (SCALIA, J., concurring in part and concurring in judgment) (where Congress has enacted statutes based on an assumption reasonably derived from our cases, "[e]ven if we were now to find that assumption to have been wrong, we could not, in reason, interpret the statutes as though the assumption never existed").
"A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of [enumerated provisions of the Rehabilitation Act] or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance." 42 U.S.C. 2000d-7(a) (1) (1982 ed., Supp. IV).
Congress enacted this provision, the Senate Conference Report tells us, because "[t]he Supreme Court's decision [in Atascadero] misinterpreted congressional intent. Such a gap in Section 504 coverage was never intended. It would be inequitable for Section 504 to mandate state compliance with its provisions and yet deny litigants the right to enforce their rights in Federal courts when State or State agency actions are in issue." S. Conf. Rep. No. 99-388, pp. 27-28 (1986). See also 132 Cong. Rec. 28623 (1986) (amendment [491 U.S. 223, 241] "eliminate[s] the court-made barrier to effectuating congressional intent that the holding in the Atascadero case so unwisely has raised") (Sen. Cranston, a principal author of 504 of the 1973 Act). Had the Court followed the usual rules for determining legislative intent, as Congress in 1973 had every reason to expect it would, the Court could not have fallen into this error. See Atascadero, 473 U.S., at 248 -252 (BRENNAN, J., dissenting) (examining the text, structure, and legislative history of 504 to conclude that Congress intended that the States be amenable to suit in federal court).
Though I would hold that Pennsylvania is not immune from suit in federal court for breaches of its obligations under the EHA, I find it unnecessary to go on to consider the second question upon which certiorari was granted: whether the Court of Appeals erred in ruling that Pennsylvania's secretary of education is precluded from deciding special education administrative appeals under 1415(c) because he is an employee of the Commonwealth. There was an alternative ground for the Court of Appeals' judgment against Pennsylvania - that because of the secretary's remand to a hearing officer following respondent's administrative appeal, respondent was deprived of the timely "final" judgment to which he was entitled under 20 U.S.C. 1415(e) and 34 CFR 300.512 (1988). 839 F.2d, at 124-125. Petitioner's predecessor did not seek review of the Court of Appeals' decision on this alternative ground, which appears adequate to support the judgment below, and no purpose would be served by our considering whether the secretary's participation in the appeal was a violation of the EHA's procedural requirements. I would thus affirm the judgment below.
[ Footnote 1 ] Moreover, it is not even clear that in those situations where the State is the only proper defendant, an action could always be brought against the State even in state court; for in Will v. Michigan Dept. of State Police, ante, at 66, the Court seems to suggest that the very same rule of interpretation it applies here to decide whether Eleventh Amendment immunity is abrogated is also to be used to determine whether a federal statute requires a State to allow itself to be sued in state court. See ante, at 76 (BRENNAN, J., dissenting). If the EHA does not guarantee that the State can be sued somewhere, then our previous statements that the statute provides enforceable rights are a mockery.
[ Footnote 2 ] The view that Congress believed it had abrogated state immunity in the EHA is confirmed by the legislative history of the Handicapped Children's Protection Act of 1985. Congress complained that "[c]ongressional intent was ignored by the U.S. Supreme Court when . . . it handed down its decision in Smith v. Robinson, 468 U.S. 992 (1984)," where the Court held that "`the EHA repealed the availability of sections 504 [of the Rehabilitation Act of 1973] and 1983 [of Title 42] to individuals seeking a free appropriate public education,'" so that such litigants could no longer obtain [491 U.S. 223, 237] attorney's fees. H. R. Rep. No. 99-296, p. 4 (1985) (quoting Smith, supra, at 1030 (BRENNAN, J., dissenting). To correct this error, Congress enacted an amendment, codified at 20 U.S.C. 1415(e)(4) (1982 ed., Supp. V), providing for the award of attorney's fees under the EHA. The statement in the House Report on this amendment that "[i]n some actions or proceedings in which the parents or guardian prevail, more than one local or State agency may be named as a respondent," and that in such cases, "it is expected that the court will apportion the award of attorneys' fees and other expense based on the relative culpability of the agencies," H. R. Rep. No. 99-296, at 6, clearly demonstrates a belief that Congress had abrogated Eleventh Amendment immunity in the EHA.
I join JUSTICE BRENNAN'S opinion because he correctly ascertains the unmistakable intent of Congress to subject state agencies to liability for tuition-reimbursement awards under the Education of the Handicapped Act, 20 U.S.C. 1415(e) (2). See also School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985). Indeed, as JUSTICE BRENNAN convincingly demonstrates, this statute passes even the stringent test set forth in Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985). It is only by resorting to a stricter standard yet that the Court is able to reach the result that it does here. Because the Court never should have started down this road, it certainly should not take today's additional step.

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Argued: April 24 and 25, 1929.
Mr. Forney Johnston, of Birmingham, Ala., for appellant.
Section 9713 of the Code of Alabama (1923) prohibits a railroad from abandoning 'any portion of its service to the public * * * unless and until there shall first have been obtained from the (Public Service) Commission a permit allowing such abandonment.' Very severe penalties, including punishment of officers, agents and employees, are prescribed in case the abandonment is willful. Sections 9730, 9731, 5350, 5399. Without obtaining such permission or applying therefor, the St. Louis-San Francisco Railway discontinued two interstate trains by means of which it had long furnished intrastate service between several cities and towns in Alabama. Then it brought, in the federal court for the middle district of that state, this suit against the commission, the Attorney General and other officials, to enjoin the commencement of proceedings to enforce the penalties prescribed. An application for an interlocutory injunction, heard before three judges under section 266, Judicial Code (28 USCA § 380), was denied (D. C.) 27 F.(2d) 893. A restraining order, issued upon the filing of the bill, was continued in force pending the determination of this appeal.
The bill alleges that the operation of the interstate trains by which the intrastate service had long been furnished had involved the carrier in losses; that the service still furnished by other trains is adequate to supply the reasonable needs of the communities; that, upon learning of the discontinuance of the service, the commission demanded that it be restored, without first hearing the carrier; that, if section 9713, Code Ala. 1923, is construed as requiring the carrier to obtain the commission's permission before discontinuing intrastate service rendered by means of an interstate train, or as prohibiting such discontinuance although an unreasonable burden is thereby imposed upon the carrier, the statute violates the Commerce Clause of the Federal Constitution (article 1, § 8, cl. 3); that, if construed as requiring, without a prior hearing, reinstatement of the service so discontinued, it violates also the due process clause; and that the matter in controversy exceeds the jurisdictional amount. The prayers are for an injunction against enforcing any penalty for discontinuance of the service or for failure to reinstate the same; and for a declaration that the statute, if construed as stated, is void under the Federal Constitution. The answer denies many of the allegations of the bill.
The railway contends that it had no way of testing the constitutionality of the statute, otherwise than by this suit. It urges that, if it had applied to the commission for permission to discontinue the service, it would have thereby recognized its jurisdiction; and that, since the commission did not before directing reinstatement of the service issue any order to the carrier to appear, there was no action by the commission which could form the basis for a review in courts of the state. We have no occasion to consider the issues of fact or to determine whether the Alabama statute if construed as suggested is obnoxious to the Federal Constitution. Upon facts admitted it is clear that the carrier should not have discontinued the intrastate service without first applying to the commission for permission. No constitutional right could have been prejudiced by so doing. No emergency existed requiring immediate action. And no serious financial loss would have been incurred by the slight delay involved. Western & Atlantic R. R. v. Georgia Public Service Commission, 267 U. S. 493, 496, 45 S. Ct. 409, 69 L. Ed. 753; Lawrence v. St. Louis-San Francisco Ry. Co., 274 U. S. 588, 595, 47 S. Ct. 720, 71 L. Ed. 1219.
The past failure of the railway to apply for leave to discontinue the service does not, however, justify exposing it, and its officers and employe s, to the severe penalties prescribed by the statute. It may be that, upon full presentation of the facts, the commission would find that to continue the service would subject the carrier to an unreasonable burden; or the carrier may suggest some satisfactory substitute for the specific service now demanded of it. The commission should give to the railway the opportunity of presenting the facts; and, if an application is made promptly, the matter should be determined by the commission without subjecting the railway to any prejudice because of its failure to ask leave before discontinuing the service. Compare Lawrence v. St. Louis-San Francisco Ry. Co., 278 U. S. 228, 49 S. Ct. 106, 73 L. Ed. . To this end the decree will be vacated; and the restraining order will be continued. Compare Ohio Oil Co. v. Conway, 279 U. S. 813, 49 S. Ct. 256, 73 L. Ed. . If after such hearing the commission insists that the service objected to be restored, further proceedings appropriate to the situation may be had in the cause in the District Court.


Continuing to watch, I then observed President Obama say that he was going to save the American people about $210 billion dollars and create jobs here by curtailing the ability of U.S. companies to “shirk their responsibilities” to pay their taxes. He also said the whole idea was to level the playing field.
• Revoke the check-the-box rules for most single-owner foreign entities.
The first two of these appear to come straight out of Ways and Means Committee Chairman Rangel's international tax reform plan from a couple of years ago, while the third caught pretty much everyone by surprise. The three taken together represent a dramatic curtailment of deferral, the system under which earnings of foreign subsidiaries of U.S. multinationals generally are not taxed in the United States until those earnings are distributed to the U.S. parent as a dividend; for many American companies, the combined effect would be virtually the same as complete repeal of deferral. Enactment of all three proposals, while acknowledging the need for American companies to be globally competitive, would be the economic equivalent of deliberately throwing the game. And any one of the proposals would be like requiring American companies to take the field a few players short. I'm still trying to figure out which playing field it is that is supposed to be leveled with these proposals.
Okay, so it's true, I did observe a lot just by watching. But I've also got some additional observations.
For one thing, deferral is not a four-letter word, contrary to the Administration's efforts to make it so. And territorial is not merely a term used to describe your dog's behavior. The latter term, in fact, is used to describe the tax systems of virtually all of the world's major economies, now that Japan and the United Kingdom have adopted such systems. This will leave the United States as the last one standing: the world's last major economy with a worldwide taxation/foreign tax credit system and a high corporate tax rate. The other countries with a worldwide taxation/foreign tax credit system -- China being the only true “major” among them -- all have corporate tax rates lower than 30%; 25% in the case of China.
For “deferral” to be considered sinful or a corporate giveaway implies that it is appropriate for shareholders to be including their share of income of corporations they own on a current basis. I certainly don't think that's appropriate on the stock of companies I own (of course, most of my investments are in money-losers anyhow). Rather, I think any corporate investor would expect a corporation to reinvest part of its profit to grow its business and at most pay a portion of its profit as a dividend return to shareholders. Why would our expectations of reasonable behavior in the case of foreign subsidiaries be any different from this?
Let's consider some typical fact patterns. Say a U.S. company in the retail industry is trying to grow its business in China. It seems reasonable to expect that to grow its local business, its China subsidiary may reinvest profits from store #1 to open store #2, etc. Likewise a consumer products company reinvesting profits to further establish its brands to Chinese consumers. Likewise a mining company reinvesting profits from mine #1 to develop mine #2. Apparently the “deferral as a sin” camp would think it more appropriate that the profit from store #1, brand #1, and mine #1 be taxed in the United States before the funds can be reinvested. So for China, given its 25% tax rate, that would mean a 10% U.S. residual tax under current law before the U.S. company can reinvest. The idea espoused by proponents is that the playing field should be leveled so that U.S. companies should instead equally consider opening the next store in the United States, spending more in promoting their brands in the United States, or developing the next mine in the United States. But, it seems to me that in my simple examples the target customers and the natural resource prospects are located in China, so it's hard to see why it's good policy to impose a 10% U.S. tax penalty on the U.S. company's ability to grow in that market. Certainly I can't see how anyone could say deferral is an unreasonable corporate giveaway.
The White House press release of May 4 says, “yet today, our tax code actually provides a competitive advantage to companies that invest and create jobs overseas compared to those that invest and create those same jobs in the U.S.” Seems to me the competitive opportunity in my example above is the billion-plus potential consumers in China and the overseas natural resource prospects not yet exploited. A U.S. tax penalty in accessing them would be a competitive disadvantage that unlevels the playing field.
I remain hopeful that this uncompetitive result will stimulate conversation among a good number of Members of Congress and that real debate over deferral will ensue. However, I remain concerned about the labels of “abuse” and “corporate loopholes” that are being thrown around.
Both the foreign tax credit and check-the-box proposals are being styled as anti-abuse proposals. Interestingly, both would result in enormous new complexity for the international tax system. For the remainder of this commentary, I'd like to focus on the technical implications of the foreign tax credit approach being proposed. For now, I'll defer comment on the check-the-box proposal.
Aficionados might recall a commentary I wrote in the wake of the unveiling of the Rangel international tax proposals. (“Chairman Rangel Consolidates His Thoughts on International Tax Reform,” 37 Tax Mgmt. Int'l J. 49 (1/11/08).) There, in connection with Mr. Rangel's foreign tax credit proposal -- in a section headed “Some Scary FTC Stuff” -- I noted that the Rangel approach would essentially consolidate all a group's CFCs for credit purposes with the result most commonly being fewer credits coming along with a CFC dividend.
So, while I've already noted previously that the Rangel plan would take complexities to a new level, I've taken a fresh look in light of the Obama proposal. And my current view is that the proposed foreign tax credit approach is actually too complex for anyone to get it right. And I'm referring to implementing the approach through regulations, not even the compliance aspects of applying it. The proposal would require the addition of huge new mechanics to the U.S. tax rules while maintaining most of the existing complexity of the current system, as well.
Let's consider a “simple” fact pattern to illustrate.
Let's say you receive a distribution from Japan sub of 60 and a distribution from Brazil JV of 40, 35 of which is a dividend for U.S. tax purposes.
Of course, this ignores any possible currency movements in the Japanese Yen or Brazilian Real.
So, in this example, the effect of the proposed rule is presumably as intended -- i.e., the U.S. tax cost of repatriating profits from subsidiaries in higher-taxed locations will go up -- perhaps considerably.
But, of course, a change of this magnitude would not be so simple. What additional questions are inherent in the simple fact pattern laid out above?
• Will E&P balances continue to be maintained for each company individually or will all E&P be considered part of a consolidated pool? If the latter, then the additional 5 of distribution from Brazil JV (40 distributed − 35 out of E&P) above would also be currently taxable in the United States even though Brazil JV did not have sufficient E&P to source any additional dividend.
• If separate E&P pools will still be maintained, how will the reallocation of taxes be handled? In the above example, Japan sub had pre-tax income of 100 and paid Japanese tax of 40. However, under the consolidated pooling approach, its foreign tax paid will be considered reduced to 27. Does this mean Japan sub has additional E&P of 13? Does it also mean that Ireland sub has a reduction of its E&P? On the other hand, it could just be a change in the algorithm for §902 so that there is no longer a connection between the credits associated with a dividend and the underlying income tax expense of a particular subsidiary.
• How to do the worldwide consolidated income calculation? Will U.S. consolidated tax return concepts apply? (What fun that would be!) How to combine the earnings and profits in different currencies?
• How to deal with currency movements with respect to foreign tax paid? Should all forex rates be locked in at the time each “layer” of deemed-paid credits is computed? Will each country's taxes be considered to come out of the combined pool on a proportionate basis?
• How to deal with dividends from lower-tier CFCs up the chain? In the example, what if in year two UK sub pays a dividend to NL holdco and let's say NL holdco has some of its own income and expense in year two. Presumably, because the pooling concept is a virtual consolidation, all intercompany dividends would be eliminated. Query how dividends for pre-acquisition profits on pre-effective date earnings should be treated. Do any pre-effective date §902 credits get blended into the new FTC pool?
• Will Subpart F inclusions be subject to the same pooling provisions? Presumably yes; the maintenance of CFC-by-CFC computations for Subpart F inclusion purposes along with consolidated computations for dividend purposes would seem an impossible task.
• How to deal with §986 forex gain or loss on Subpart F inclusions when a consolidated E&P concept implies a blending of currencies for certain purposes?
• How to deal with §960 tax adjustments with respect to Subpart F inclusions as they are distributed up the chain?
• How to deal with E&P deficits? Will they be included in consolidated E&P? Could a net deficit result in a denial of any FTCs for a given year? How to deal with upper-tier deficits as profits are distributed up the chain of CFCs?
• How to deal with M&A transactions?
• What if USP sells Japan sub? Is its §1248 amount recomputed based on its proportion of consolidated foreign tax? Will the consolidated E&P pool be reduced by that amount of E&P and tax? What if the “sale” is a tax-free exchange or the actual gain is less than the recomputed §1248 amount?
• What if NL holdco sells UK sub? Will the §964(e) calculation be similarly computed as described above, and only any excess gain added to the new E&P pool?
• What if a U.S. buyer purchases the 50% ownership of Brazil JV from the unrelated foreign shareholder? How to compute its §902 pool? For any joint venture company, will there be shareholder-level E&P account pools that will track the blended §902 pool for each shareholder?
• Are the new rules intended to apply to 10-50 companies, as this example assumes?
• How will these rules be viewed with respect to our tax treaty obligations? In the above example, has the United States really given foreign tax credit relief for Japanese tax with respect to the dividend received from Japan sub? Will our treaty partners think this was the intended result of their negotiations?
The space constraints imposed on this commentary prevent me from going on and on. But one can easily imagine adding to the list of unanswered questions and inherent complexities when thinking about aspects of §367, §905, §904 separate FTC baskets, etc., etc.
As you might be able to tell, I don't think the proposal is a particularly good idea. If it is brought into law without all the technical details worked out and collateral effects considered, there will be chaos in the system. Even if these issues are all fully addressed with detailed implementation rules, we will move from what today is already an overly complicated FTC regime, with which companies struggle to comply, to one of unprecedented complexity, which few if any will be able to get right. With complexity of this magnitude, there is a risk that some may not even try very hard to get it right anymore. And it will be beyond the IRS's ability to enforce.
Setting aside technical issues such as complexity, the policy result will be to render any repatriation from overseas more costly -- even high-taxed earnings that are currently brought home will be deferred where possible, which is not presumably an intended result. I believe our foreign tax credit system puts U.S. multinationals at a big competitive disadvantage today for investments in lower-tax countries (which is most of the world!). Now with this “leveling” of the playing field that big competitive disadvantage for American companies will apply to investments in higher-tax and lower-tax countries equally.
Other than that, I'm completely in favor.
Then again, as Yogi also said, if you don’t know where you are going, you will wind up somewhere else. Hopefully that will be the case with this proposal.
This commentary also will appear in the July 2009 issue of the Tax Management International Journal. For more information, in the Tax Management Portfolios, see Carr and Moetell, 902 T.M., Indirect Foreign Tax Credits, and Yoder and Kemm, 930 T.M., CFCs -- Sections 959-965 and 1248, and in Tax Practice Series, see ¶7130, U.S. Persons' Foreign Activities.


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IN THE ESTATE OF: WARREN K. MILLER, Deceased. JESSE C. HAMMOCK, II, Appellant, v. PATRICE MILLER, in her capacity as Personal Representative, Respondent.
Jesse C. Hammock, II (“Hammock”) appeals from the probate court's order denying his claim against the estate of Warren K. Miller (“the Estate”). Hammock filed a claim against the Estate for $9000, seeking remuneration for his performance of four concerts. In his sole point on appeal, Hammock contends that the probate court misapplied the law because the undisputed facts establish his right to recover on his account-stated claim. Because Hammock's claim is not based upon a prior debtor-creditor relationship between him and Warren Miller, we reject Hammock's claim and affirm the probate court's ruling.
In early 2016, Warren K, Miller (“Decedent”) hired Hammock, a musician, to perform four shows scheduled for May 21, June 26, September 17, and October 8.1 Hammock and Decedent were friends, and Hammock had previously put on shows for Decedent. Hammock performed both individually and as a member of his band, Powder Mill. Decedent paid Hammock $3000 as a total cash deposit for the May 21, September 17, and October 8 shows. As a deposit for the June 26 show, Decedent issued Hammock a check for $2000.
On May 15, almost a week before the first show, Decedent sent Hammock a text message, stating that “I still owe ya $2K cash for 5/21. If ya need it before next weekend, just let me know.” Decedent sent Hammock a second text message: “Also, after deposits I still owe you the following: 6/26 Mill @ $3K, 9/17 JCH2 @ $1K, & 10/8 Mill @ $3K. Let me know if that jives with your book.”2 Hammock responded affirmatively. The text messages were consistent with previous discussions between Hammock and Decedent regarding the negotiated price for each respective show.
On May 17, two days after the text-message conversation, Decedent died unexpectedly. Hammock learned of Decedent's death shortly thereafter. Hammock performed the May 21 and June 26 shows as planned, notwithstanding Decedent's death or the efforts of Patrice Miller (“Miller”), Decedent's widow, to cancel each performance. The probate court later appointed Miller as the personal representative of the Estate. Miller obtained an ex parte order against Hammock.
Regarding the September 17 show, Hammock allegedly arrived at the venue and learned that a different musician had replaced him. Hammock did not perform on September 17. The ex parte order obtained by Miller prevented Hammock from putting on the October 8 show at the planned venue, which was located on Decedent's property. Hammock instead played at a nearby venue. Hammock purportedly paid, inter alia, his band, travel costs, and a production company for all four scheduled engagements. Hammock could not recall if he ever received any of the deposits.
Hammock later filed a claim against the Estate seeking $9000 in compensation for the four concerts. Miller, in her capacity as personal representative of the Estate, objected. After a hearing, the probate court denied Hammock's claim. This appeal follows.
We affirm the court's decision, as in any court-tried probate case, unless there is no substantial evidence to support the decision, it is against the weight of the evidence, the court erroneously declares the law, or the court erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); In re Barnard, 484 S.W.3d 833, 837 (Mo. App. E.D. 2016); Miller v. Swearingen On the Estate of Spray), 77 S.W.3d 25, 26 (Mo. App. E.D. 2002).
In his sole point on appeal, Hammock contends that the probate court misapplied the law because the undisputed facts establish his right to recover on his account-stated claim.
Hammock argues that the text-message conversation between him and Decedent on May 15 conclusively demonstrates his right to recover $9000 on the theory of account stated. We disagree.
“An account stated is an agreement between parties, having had previous financial transactions, that a balance struck is correct and due between them, and a promise by the debtor, either express or implied, to pay the balance.” Scheck Indus. Corp. v. Tarlton Corp., 435 S.W.3d 705, 721—22 (Mo. App. E.D. 2014) (quoting Grant Selsor & Sons Lumber Co. v. Wood, 872 S.W.2d 150, 153 (Mo. App. S.D. 1994)). To establish a claim for account stated, the claimant must prove that “(1) the parties had prior financial dealings, an open account; (2) the parties reached an agreement as to the amount due and owing on that account; and (3) the debtor acknowledged this obligation and made an unconditional promise to pay.” Id. at 722 (quoting Grant Selsor & Sons Lumber Co., 872 S.W.2d at 153).
Importantly, a claim premised on the theory of account stated must be predicated on some prior transaction that created a debt due from one party to the other. Whelan's, Inc. v. Bob Eldridge Constr. Co., 668 S.W.2d 244, 247 (Mo. App. W.D. 1984); Gerstner v. Lithocraft Studios, Inc., 258 S.W.2d 250, 253 (Mo. App, St. Louis 1953); see PJ's Concrete Constr., Inc. v. Gust, 983 S.W.2d 640, 642 (Mo. App. S.D. 1999). To that end, the claimant must establish the existence of an antecedent debtor-creditor relationship between the parties at issue, arising before the purported statement of account. See Crist Sod Co. v. Bruce, 599 S.W.2d 43, 45 (Mo. App. E.D. 1980); Barr v. Lake, 126 S.W. 755, 757 (Mo. App. St. Louis 1910). More specifically, an account-stated claim requires that a debt exists and is due and owing at the time the debtor acknowledges the debt and unconditionally promises to pay it. See Jose v. Aufderheide, 293 S.W. 476, 479 (Mo. App. Kansas City 1926) (describing that “[a]n account stated must be founded on previous transactions[;] ․ the admission of indebtedness must refer to a past transaction or subsisting debt. An account stated cannot be made the instrument to create an original liability; it merely determines the amount of the debt where liability previously existed.”); Fisse v. Blanke, 105 S.W. 689, 692 (Mo. App. St Louis 1907).
In acknowledging the preexisting debt, the debtor must additionally recognize a fixed and certain sum to be due. McKenzie v. Hall, 239 S.W. 154, 157 (Mo. App. Kansas City 1922); see also Brader v. Rehm, 323 S.W.2d 392, 394 (Mo. App. St. Louis 1959) (stating that an action for account stated is not available where there are certain matters remaining open for future adjustment); Concrete, Inc. v. Curry, 278 S.W.2d 6, 9 (Mo. App. St. Louis 1955) (same). Therefore, the debtor's acknowledgment of liability and agreement to pay a debt then owed may not be contingent on future events. See Scheck Indus. Corp., 435 S.W.3d at 722-23; Grant Selsor & Sons Lumber Co., 872 S.W.2d at 154; Spartan Carpet Distribs., Inc. v. Bailey, 728 S.W.2d 236, 237 (Mo. App. E.D. 1987).
Hammock's proffered evidence fails to satisfy the necessary components of an account-stated cause of action. The record does not reveal facts allowing the probate court to find the required prior transactions creating a debtor-creditor relationship between Hammock and Decedent. See Crist Sod Co., 599 S.W.2d at 45; Barr, 126 S.W. at 757. And the existence of such prior transactions is critical to proving a claim for an account-stated. Here, the record shows that Decedent's text messages merely restated an agreement to be performed in the future with Hammock; Decedent agreed to pay $9000, after a deposit of $5000, for Hammock to perform four specific concerts scheduled for later in the year. The text-message conversation clarified the parties' agreement to exchange future services for money paid at a later date. Critically, no payment was due, owing, or contested at the time of Decedent's text messages. As of May 15, the parties had not exchanged any goods or services besides the deposit, and the parties were not yet required to perform any obligations under the agreement. Indeed, Hammock presented no evidence that the $9000 referenced in the text messages related to any shows performed before May 15. As a result, Decedent's text messages could not constitute a settlement or an account on any existing debt.
Clearly, not all written statements describing the payments planned between parties will create an account-stated cause of action. See Fisse, 105 S.W. at 692. The record reveals that the parties entered into an agreement for the performance of future services in exchange for future payment. While the agreement between the parties may give rise to an action against Decedent for not performing the promise when the obligation was later due, Decedent's text messages were not in the nature of settling any existing debt that was then due from one party to the other. See id. Hammock's arguments otherwise impermissibly attempt to broaden account stated as a cause of action.
The judgment of the probate court is affirmed.
1. All dates referenced here occurred in 2016, so we will omit the year in the remainder of the opinion.
2. Hammock testified that “Mill” referred to performances planned for Hammock's entire band, Powder Mill, while “JCH2” signified performances designated for Hammock individually or as a part of a smaller ensemble.
3. We emphasize that the only issue on appeal is whether the probate court misapplied the law regarding Hammock's contention that the undisputed facts establish his right to recover on his account-stated claim. We need not, and do not, address whether the record entitles Hammock to recover on any other theory or basis.
Robert G. Dowd, Jr., P.J., concurs. Sherri S. Sullivan, J., concurs.

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Posted On July 5, 1901 by &filed under Calcutta High Court, High Court.
1. This appeal arises cut of a suit brought by the plaintiffs respondents to set aside a side under the Public Demands Recovery Act (VII of 1880 B. C.) and to recover possession of a, certain share of the property sold, upon establishment of the plaintiffs’ right to the same. The main allegations upon which the suit is based are, that mourn Bagh Kalapahar bearing No. 1381 on the tonji or register of the Burdwan Collectorate belonged to the plaintiffs and the defendants Nos. 2 to 9, the share of the plaintiffs being 8 annas 3 gnadas kara 1 kranti; that the Collector of the District filed a certificate naming Uie plaintiffs and some of their co-sharers as debtors, and stating, that a certain sum of money was duo from’ them as road cess on account of wehal No. 1381 which was erroneously named as mouza Kothalgachi; that the sale proclamation which contained the same erroneous statement was published in mouza Kathalgachi and not in mouza, Bagh Kalupahar, and owing to this want of due publication, Bagh Kalapahar, which was worth Rs. 25,000, was sold only for Rs. 165 and that the sale was fraudulently brought about by defendants 3 and 4 who bought the property in the name of defendant No. 1 and thou made him execute a release in the name of their relative defendant No. 2.
2. The defendant No. 2 in his written statement claimed to be the real purchaser at the sale in question, denied the plaintiffs’ allegations about the non-service of the sale proclamation and the value of the property sold; and urged that the sale was valid. Defendants No. 3 and 4 denied the allegation of fraud and disclaimed all connection with the sale and purchase. Defendant No. 8, who was one of the debtors named in the certificate, supported the plaintiffs. And the Secretary of Slate for India, who was made a defendant, admitted that the sale was bad for want of due publication of the Bale proclamation.
3. The first Court found that the allegation of fraud was not proved, that defendant No. 2 was the real purchaser at the auction sale, that the sale proclamation was published in Kathalgachi and not in Bagh Kalupahar, and that the property was sold in consequence at an inadequate price; and following the case of Ramlogan Ojha v. Bhawani Ojha (1388) I. L. R. 14 Calc. 9, it set aside the sale and gave the plaintiffs a decree for possession of the share claimed. Against that decree defendant No. 2 has preferred this appeal. The appeal was heard by Mr. Justice Rampini and Mr. Justice Pratt, and as those learned Judges differed in opinion upon the question whether the suit was maintainable, the case has been referred to us under Section 575 of the Code of Civil Procedure. At the first hearing before us, it appearing that there was a conflict of decisions in this Court upon one of the questions that arose in the case, namely, the question whether a civil suit lies for setting aside a sale held in enforcement of a certificate under Act VII of 1880, B. C., on the ground of the sale being vitiated by material irregularity leading to injury or whether the only remedy of the debtor lay in an appeal to the Commissioner under Section 2 of Act VII of 1868, B. C., we referred that question to a Full Bench for determination. A majority of the Full Bench having answered the question in the manner following, namely, that Section 2 of Act VII of 1868 B. C., is no bar to a civil suit, the case now courts back to us for determination.
4. The learned vakil for the appellant very properly says that he is not prepared to question the correctness of the finding of the first Court, which has been upheld by the two learned Judges of this Court, who heard this appeal in the first instance, that there was no publication of the sale proclamation in Bagh Kalapahar, the property sold; nor does he dispute the correctness of the view taken by Mr. Justice Pkatt, as to the value of the property, that at the lowest estimate it must be worth Rs. 10,000 to Rs. 12,000. The only contentions now raised before us on behalf of the appellant are, first, that upon the facts, this case does not come within the principle laid down in Ramlogan Ojha v. Bhawani Ojha and second, that this suit is not one of a civil nature within the meaning of Section 11 of the Code of Civil Procedure, and even if it is, it is barred by Section 244 and 312 of the Code.
5. In support of the first contention, it is argued that the principle upon which the case of Ramlogan Ojha v. Bhawani Ojha (1886) I. L. R. 14 Calc. 9, is based is that when one property is advertised for sale by public auction, and a different property is sold, the sale is an absolute nullity; but that principle is not applicable to this case, ns here the property advertized for sale was Estate No. 1381 of the Burdwan Collector’s Touji, and that was the property sold, the fact of the sale proclamation giving the property a wrong name, mouza Kathalgachi, instead of its correct name, mouza Bagh Kalapahar being altogether immaterial. That no doubt is the view taken by Mr. Justice Rampini, hut with all respect for the opinion of that learned Judge, we are unable to assent to it in this case. We think, in concurrence with the Court below and with Mr. Justice Pratt, that the misdescription in the sale proclamation in this case brings it quite within the rule laid down in the case of Ramlogan Ojha v. Bhawani Ojha. Section 19 of Act VII of 1880 (B. C.) under which the sale in question ^was held, makes the practice and procedure provided by the Code of Civil Procedure applicable to such sales and 8. 287 of the Code of Civil Procedure requires that the sale proclamation should specify “the property as fairly and accurately as possible; and” Pargana Haveli, Tuuzi No. 1381, mehal Kathalgachi,” the description in the sale proclamation in this case, was neither an accurate nor a fair description of mehal Bagh Kalapahar, Tauzi No. 1381, Pargana Haveli, the property sold. An estate is generally known and recognized by its name and not by its Tauzi number, which even the owner of it may not always carry in his recollection; and the description given in the sale proclamation must have led most people to think that mehal Kathalgachi was the property that was going be sold; the fact of the tauzi number given not corresponding to the mehal, being either not adverted to, or not considered material. The first contention of the appellant must therefore fail.
6. The second contention has three branches.
7. As to the first branch of this contention, namely, that this suit is not a suit of a civil nature within the meaning of Section 11 of the Code of Civil Procedure and not cognizable by the Civil Court, it is enough to say that no authority has been cited in its support, and we see no reason for holding that a suit to set aside an irregular sale of the plaintiffs! property in satisfaction of a debt is not a suit of a civil nature.
8. The second branch of the second contention, namely, that the suit is barred by Section 244 of the Civil Procedure Code, is equally untenable. Section 19 of Act VII of 1880 (B. C), which is relied upon in its support, makes the practice and procedure provided by the Code of Civil Procedure in respect of sales in execution of decrees and certain other matters applicable to execution issued under the Public Demands Recovery Act of 1880. But the scope of Section 244 does not concern any of those matters.
9. The third branch of the second contention, namely, that the suit is barred by Section 312 of the Code of Civil Procedure, deserves a little more consideration. It might seem at first sight that the procedure provided by the Code which is made applicable to sales under the Public Demands Recovery Act by Section 19 of the Act, includes Section 312 of the Code. But the contention is opposed to the case of Ramlogan Ojha v. Bhawani Ojha (1886) I. L. R. 14 Calc. 9, which we are bound to follow so long as it is not overruled by a Full Bench of this Court or by the Privy Council. Moreover, as pointed out in the case just referred to, what Section 19 of Act VII of 1880 (B. C.) makes applicable to sales under that Act is the Procedure provided by the Code of Civil Procedure in carrying out execution sales to their completion, and not the supplementary procedure provided for enquiring into applications for setting aside sales, nor the further provision in Section 312 prohibiting suits.
10. It is argued that the decision of the Full Bench in Bishambhur Haldar v. Bonomali Haldar (1899) I. L. R. 26 Calc. 414, by holding that Section 316 of the Code of Civil Procedure applies to sales tinder the Public Demands Recovery Act of 1880, has in effect overruled Ramlogan Ojha v. Bhawani Ojha. (1886) I. L. R. 14 Calc. 9, and made Section 312 applicable to such sales. We do not consider this argument sound.
12. But, if any doubt remains upon the language of the law, it will be-removed when we look to the reason of the thing, Act VII of 1880 (B. C.) was intended to provide a summary mode for the realisation of certain public demands by authorising revenue officers to file certificates of those demands being due, which are to have the force and effect of decrees, and by providing that those officers may enforce their certificates by the procedure provided by the Code of Civil Procedure for execution of decrees for money. But it by no means follows that the Legislature intended that the rule in Section 312 of the Code, prohibiting a civil suit for setting aside an execution sale, should apply to sales held to enforce such certificates.
13. The Code of Civil Procedure, white prohibiting a civil suit to set aside an execution sale, provides, against an order setting aside or refusing to set aside such a sale, (See Section 588, Clause 16) an appeal which may sometimes Ho to the High Court, and a further appeal (See Section 595) to the Privy Council, where the value of the subject matter in dispute comes up to the appealable amount. In the absence of any such provision in the Public Demands Recovery Act of 1880, would it be reasonable to suppose that the Legislature intended to bar a civil suit for setting aside a sale under that Act, when such a suit is allowed in the case of a sale for arrears of Government revenue under Act XI of 1859? We think not.
14. It is argued that Section 20 of Act I of 1895, B. C., the Public Demands Recovery Act now in force (as amended by Act I of 1897 B. C.), makes Section 311 of the Code of Civil Procedure expressly applicable to sales under the certificate procedure, and that this shows that the Legislature intended Section 312 to be applicable to sales under the Act of 1880. But this argument is, in our opinion, not sound. Section 20 of the new Act by referring only to Section 311 of the Code shews by implication that the provision in Section 312 prohibiting a civil suit is not intended to apply to sales under the Act, Nor does the language of Section 19 of the present Act go further than that of the Act of 1880. The inference deducible from the change in the law, so far as it has been changed, is in our opinion rather adverse to the appellant’s contention than in its favour.
15. Judgment of Banerjee J.
16. We cannot hold that the jurisdiction of the Civil Court to entertain a suit has been taken away by implication in the case.
17. For all these reasons we think the third brand) of lire second contention of the appellant must also fail.
18. On the merits we have already held that the sale in question was grossly irregular, one property having been advertized for sale and a different property Bold. Indeed, we may go further and hold that the officer of the Court had no authority to sell the property that has been sold. And there can be no question that the petitioner has sustained substantial injury, property worth at least Rs. 10,000 having been sold for Rs. 165. That being so, the sale has been rightly set aside by the Court below.
20. In the result then we concur in the view taken by Mr. Justice Pratt, and this appeal must therefore under Section 575 of the Code of Civil Procedure be dismissed, and the decree of the Court below affirmed with costs. We assess the hearing fee in this Court at Rs. 850.
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Anti-Counterfeiting Trade Agreement educational video above.
EFF's take on ACTA here.
The European Commission is apparently pushing the European Parliament to drop its skepticism, Techdirt story here.
More on why ACTA's secretive nature is problematic here.
Last week the Senate Judiciary Committee voted the Protect-IP Act out of committee. Sen. Ron Wyden put a hold on it on Thursday. I read it and my comment focus on the aspects of interest to the civil litigator.
Section 4 "Eliminating the Financial Incentive to Steal Intellectual Property Online" of the Protect-IP Act would let a private attorney, on behalf of a copyright or trademark owner, commence an in personam action against a registrant or owner of an "Internet site dedicated to infringing activities". If these folks cannot be found or don't have addresses within the U.S., the private plaintiff could bring an in rem action against the domain name itself. As part of the remedies authorized, you would be able to get a court to order any company processing financial transactions with the domain to stop, as well as any company advertising on the domain name.
Invoking these provisions would subject a plaintiff to a fairly high standard of proof. Critics have focused on other aspects of the bill giving the Attorney General sweeping powers (see links below). For a U.S. IP owner facing an offshore scofflaw who is doing business in the United States, Section 4 of the bill seems to be a fairly sensible and well-balanced remedy.
A copy of the full text of the Protect-IP Act passed by the Senate Judiciary Committee last week here.
The Electronic Frontier Foundation' criticisms of the bill here.
Last Thursday, Senator Ron Wyden of Oregon blocked this "internet censorship" bill, story here.
Larry Downes' take at Forbes here. Techdirt on Larry Downes here.
The 1709 Blog reports Google's defiance of search-engine blocking provisions here.
A nice summary of the copyright wars in the 20th century, the Guardian interviews Cory Doctorow. Direct criticism of lawmakers' willingness to criminalize popular entertainment.
Die Galerie Vömel, mehr als ein halbes Jahrhundert in Düsseldorf ansässig, wurde von Alex Vömel - Geschäftsführer der legendären Galerie Flechtheim - gegründet und wird heute von seinem Sohn Edwin Vömel weiter geführt.
Vor einigen Jahren ist die Galerie in das alte Stadtpalais gegenüber vom Stadtmuseum in die Karlstadt umgesiedelt.
Die Galerie Vömel führt Arbeiten der klassischen Moderne, weiterhin ist sie spezialisiert auf Skulpturen und Arbeiten auf Papier des 20. Jahrhunderts.
Gezeigt werden regelmäßig Ausstellungen, welche mit Katalogen dokumentiert werden.
Shunned by his former friends, those who stole his art conveniently wrote him out of art history. In a book called Boston Modern, art historian Judith Bookbinder credits Alfred Flechtheim with donating a Rudolph Belling sculpture of himself as being the foundation of Harvard's collection of modern German sculpture that turned into the Busch-Reisinger collection.
Flechtheim represented artists such as Paul Cezanne, Vincent Van Gogh, Pablo Picasso, George Braque, Andre Derain, Paul Klee, George Grosz, Wassily Kandinsky, August Macke and many others.
Flechtheim was featured on Nazi anti-semitic posters as the symbol of International Bolshevist Jewry - More on Flechtheim's nose here.
When in 1933 Nazis started attacking modern art in anti-Semitic museum exhibitions, Flechtheim and his sales to German museums were attacked. When the 1937 Entartete Kunst exhibition took place, the Nazis had a life-sized portrait of Flechtheim.
New York's Museum of Modern Art has many works from Alfred Flechtheim's 1933 inventory, but refuses to share the provenance documentation of these artworks with researchers.
A Swiss government report on MoMA's role in the Nazi looted art trade here.
Shockingly, MoMA's current exhibition catalog German Expressionism: The Graphic Impulse, writtten by Starr Figura and Peter Jelavich, completely omits any mention of Flechtheim.
Alfred Flechtheim's German-language Wikipedia page is here.
Whether from ignorance, stupidity or venality, American museums and art historians seem to be determined to write Alfred Flechtheim out of art history. It may be that the arrest and trial of this forgery ring in Germany will succeed in uncovering that which those Americans trafficking in and concealing Nazi-looted art would like to bury.
Not even one English-speaking Wikipedian will memorialize poor Flechtheim.
Browse my earlier posts on Alfred Flechtheim here.
"Flechtheim was for the Nazi government, you can say, in art, public enemy No. 1," said Ottfried Dascher of Dortmund, a retired professor of history from the University of Bochum.
Today, Flechtheim is a hot topic in Germany, a nation trying to come to terms with its past. The art museum in Dusseldorf celebrated his life in an exhibition in 1987. His hometown of Munster renamed a street for him. And just last month, art dealers and historians, including Dascher, dedicated a plaque on the Berlin building where Flechtheim once lived.
"There is no week in which I don't get letters and e-mails from all over the world on this subject," Dascher said in a telephone interview.
One reason for the interest is that Flechtheim was part of a group of pioneering art dealers of German-Jewish heritage who were the first to champion the work of Picasso and other modern artists. Flechtheim was also part of the cultural renaissance of Weimar Germany, which brought forth the films of Fritz Lang, the music of Kurt Weill and the drama of Bertolt Brecht.
Location: U.S. District Court for the Southern District of New York 500 Pearl Street, Ceremonial Courtroom (Reception Room 85).
Second Circuit: June 23 Admissions Ceremony - Sign Up Now!
On June 23, 2011, the Second Circuit will be in session to entertain a motion sponsored by the Federal Bar Association, and co-sponsored by the Network of Bar Leaders, New York City Bar Association, New York County Lawyers’ Association, the New York State Bar Association and the Connecticut Bar Association to admit new members. A reception will follow in Room 850.
Pursuant to Local Rule 46.1 and the requirements set forth in the Attorney Admissions Application Form (available at www.ca2.uscourts.gov ), any attorney duly admitted to the practice of law and in good standing is eligible for admission to the bar of the United States Court of Appeals for the Second Circuit upon paying the filing fee of $190, reading Federal Rules of Appellate Procedure, the local rules of the Second Circuit, and completing the application. No prior admission to a federal district court is necessary.
The admission application is quick and simple. Space is limited, so applicants are urged to apply promptly to participate in this historic event.
TO RSVP or for more information, call: Aleksandra Kaplun at (212) 682-8811 or email akaplun@dunnington.com. If you would like the Federal Bar Association to act as your sponsor, please call Ms. Kaplun to make the arrangements.
Caution: accessing copyrighted files may constitute copyright infringement.
Plaintiffs are now pursuing BitTorrent swarms and may discover your IP address and personal information if you download or make your computer available to upload copyrighted works through BitTorrent.
If you submit a script to a Hollywood producer who doesn't buy it, but uses the concept, do you have a claim?
On May 4, 2010, a panel of the Ninth Circuit Court of Appeals killed Hollywood by holding that implied contracts for the sale of ideas that were previously protected under California state law (pitch meetings for films) were preempted by the Copyright Act. My post here.
The Ninth Circuit granted rehearing en banc (before every judge on the court). My post linking to the video of the hearing en banc here.
Yesterday, in Montz v. Pilgrim (9th Cir. May 4, 2011) one year after the original Ninth Circuit three-year panel killed the Hollywood pitch claim, the full Ninth Circuit reversed the panel and held that implied contracts for the sale of ideas under California state law are not preempted by the Copyright Act. Decision below, with two dissents, required reading.
If you care about this area of law, watch the video of oral argument before the Ninth Circuit, it is excellent.
If you want to learn about how Hollywood really works, read one of the great American novels: What Makes Sammy Run? by Budd Schulberg. They say that the novel is so true to life that Hollywood will never make the film. It of course involves theft of ideas, exploitation of writers, unbridled ambition and chicanery.
Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996); Fed.R.Civ.P. 56(c). The moving party bears the burden of presenting authenticated evidence to demonstrate the absence of any genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see Orr v. Bank of America, 285 F.3d 764 (9th Cir.2002) (articulating the standard for authentication of evidence on a motion for summary judgment).
The court may “[a]fter giving notice and a reasonable time to respond ... (1) grant summary judgment for a nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider summary judgment on its own after identifying for the parties material facts that may not genuinely be in dispute.” Fed.R.Civ.P. 56(f). Here, the court has invoked subdivision (f) and given the parties a reasonable time to respond to the order to show cause. Although the plaintiff has requested discovery, noting that the party against whom summary judgment is granted must be “on notice that she had to come forward with all of her evidence,” Celotex Corp., 477 U.S. at 326, the court finds that further discovery is unnecessary, as the court already possesses enough information to rule as a matter of law on the issue of fair use.
A plaintiff must satisfy two requirements to present a prima facie case of copyright infringement: (1) ownership of the allegedly infringed material, and (2) that the alleged infringers violated at least one exclusive right granted to copyright holders. 17 U.S.C. §§ 106, 501(a). However, even where a plaintiff has alleged a prima facie case of copyright infringement, the defendant may refute the claim if the defendant has engaged in a fair use of the material.
The fair use doctrine is an affirmative defense to a claim of infringement, which protects certain uses of a copyright. The court considers four factors to determine whether the use of a copyrighted work is fair: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107. The four factors should be considered in light of the purposes of copyright to promote the progress of science and useful arts and to serve the welfare of the public. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1163 (9th Cir.2007) (internal citations omitted).
“Fair use is a mixed question of law and fact. If there are no genuine issues of material fact, or if, even after resolving all issues in favor of the opposing party, a reasonable trier of fact can reach only one conclusion, a court may conclude as a matter of law whether the challenged use qualifies as a fair use of the copyrighted work.” Los Angeles News Serv. v. KCAL–TV Channel 9, 108 F.3d 1119, 1120 (9th Cir.1997) (citing Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1150 (9th Cir.1986) (quoting Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559 (1985))). Here, weighing each of the four use factors and resolving all issues in favor of plaintiff Righthaven, the court finds that a reasonable trier of fact could only reach one conclusion—that the alleged infringement qualifies as fair use.
In analyzing the first prong, the court compared the original use: news reporting with the allegedly infringing use: education, and found the use to be transformative based on these different purposes. The court found the use to be non-commercial.
Second, the court found the nature of the copyrighted work to be an "informational work" entitled to a lower level of copyright protection, a factor weighing heavily in favor of fair use.
Third, the work was used in its entirety, but the defendant did not delete plaintiff's copyright information. The court found this to favor neither party.
Fourth, the court found it to be a non-commercial use, and that the plaintiff thus had the burden of affirmatively showing a likelihood of market harm. Plaintiff failed to allege that a market exists.
Coloring the court's analysis is Righthaven's position as a licensee hired just for the purposes of suing. Although this decision does not spell it out, Righthaven is not a traditional newspaper. Thus the court drew a distinction in the fourth prong that might have turned out differently had the newspaper brought the suit.
Righthaven has attracted a lot of attention as a copyright troll. An informational site on Righthaven here.
A site for Righthaven victims here.
EFF's activities to protect troll victims here.
Mike Masnick at Techdirt has the best ongoing coverage of everything Righthaven, some links below.
In Liberty Media Holdings, LLC v. Swarm of November 16, 2010, Sharing Hash File A3E.... and John Does 1-95 2011 WL 1597495 (S.D. Cal. April 26, 2011), the court permitted suit and early discovery, together with claims for copyright infringement, civil conspiracy and negligence against a BitTorrent swarm that accessed and downloaded plaintiff's copyrighted work.
Plaintiff identified the copyrighted work that had been accessed and copied by the BitTorrent swarm. Plaintiff was able to identify to the court the Internet Protocol (IP) addresses of each of the members of the swarm, but was unable to serve any of the individuals because Plaintiff lacked their names and addresses.
The court found that the Cable Privacy Act, 47 U.S.C. 551(c)(1) applies. The Cable Privacy Act requires cable companies to inform subscribers before any of their confidential information is turned over.
Under Rule 26 of the Federal Rules of Civil Procedure, discovery may not commence until the parties have had a "meet and confer" under Rule 26(f). However, in rare cases where the plaintiff cannot learn the defendants' identities without limited discovery, courts may order such discovery.
Although discovery usually takes place only after a defendant has been served, “[s]ervice of process can pose a special dilemma for plaintiffs in cases ... in which the tortious activity occurred entirely on-line ... because the defendant may have used a fictitious name and address in the commission of the tortious acts.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D.Cal.1999). Accordingly, courts have, in rare cases, “permitt[ed] limited discovery to ensue after filing of the complaint to permit the plaintiff to learn the identifying facts necessary to permit service on the defendant.” Id. (citations omitted).
In determining whether a motion for expedited discovery should be granted to identify anonymous Internet users named as Doe defendants, courts consider whether: (1) the plaintiff can “identify the missing party with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued in federal court”; (2) the plaintiff has “identif [ied] all previous steps taken to locate the elusive defendant”; and (3) the “plaintiff's suit against defendant could withstand a motion to dismiss.” Id. at 578–80.
The court permitted subpoenas to be served pursuant to Rule 45 of the Federal Rules of Civil Procedure on the cable companies and directed that the cable companies inform individual subscribers that their personal information was being requested. The court denied further discover due to Plaintiff's failure to specify the precise discovery sought.
Interesting that the court permitted a negligence claim against individual IP address holders to proceed.


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WU AG’s company Data Privacy Officer, Mr. Ingo Baum, can be reached at the aforementioned address, attn. Mr. Baum, or under i.baum@weber-ultrasonics.com.
Website from which the access takes place (referrer URL), browser used, and possibly the operating system of your computer and the name of your access provider.
The legal basis for the data processing is Art. 6 para. 1 sentence 1 lit. f GDPR. Our legitimate interest ensues from the above-listed purposes for data collection. In no case will we use the collected data to identify you.
If you have any questions, we offer you the opportunity to contact us using the form provided on the website. When doing so, you must provide a valid email address so we will know who is asking the question and be able to answer it. You may also provide additional information voluntarily.
If data is processed to establish contact with us, the legal basis is your voluntarily granted consent in accordance with Art. 6 para. 1 sentence 1 lit. a GDPR.
Any data we process so the contact formula can be used will be erased automatically after your question has been answered.
Your personal data will not be transmitted to third parties except for the following purposes.
this is legally permitted and necessary to execute contractual relationships with you in accordance with Art. 6 para. 1 sentence 1 lit. b GDPR.
Information related to the specific end device used is brought about and stored in the cookie. But this gives us no direct knowledge of your identity.
Using cookies helps make our services more user-friendly for you. So we use session cookies to recognize that you have visited individual pages of our website. These will be erased automatically when you leave our site.
Moreover, we use temporary cookies to optimize user-friendliness. Those cookies are stored on your end device for a specified period. If you revisit our site to use our services, we will automatically recognize that you have visited us before, as well as which information you disclosed and which settings you changed, so you won’t have to do so again.
The data processed by the cookies are necessary for the purposes mentioned of protecting our legitimate interests and those of third parties, in accordance with Art. 6 para. 1 sentence 1 lit. f GDPR.
Most browsers accept cookies automatically. However, you can configure your browser so that no cookies will be stored on your computer, or that a message will always appear before a new cookie is placed. But deactivating cookies completely might render some of our website’s functions unusable.
The tracking techniques we use, which are listed in the following, will be carried out on the basis of Art. 6 para. 1 sentence 1 lit. f GDPR. We use tracking techniques to ensure our website is needs-based and continually optimized. We also use tracking techniques to record statistics about the use of our website and to evaluate the optimization of our services for you. Those interests are to be deemed legitimate for the purposes of the preceding provision.
The respective data processing purposes and data categories are revealed by the corresponding tracking techniques.
will be transmitted to a Google server in the USA and stored there. The information will be used to evaluate website use, compile reports on website activities, and render further services connected with website use and internet use for the purposes of market research and a needs-based design of these internet sites. This information might also be transmitted to third parties if this is prescribed by law or if those parties will be processing that information on a commissioned basis. In no case will your IP address be combined with other Google data. The IP addresses will be anonymized so that no allocation will be possible (IP masking).
You can prevent the cookies from being installed by adjusting your browser settings accordingly, but we must point out that if you do you might not be able to use all our website’s functions to their full extent.
You can also prevent Google from collecting and evaluating the data the cookie generates about your use of the website (including your IP address) by downloading and installing the browser add-on here.
As an alternative to the browser add-on, especially for browsers on mobile end devices, you can prevent collection by Google Analytics by clicking this link. An opt-out cookie will be placed which will prevent your data from being collected when you visit this website in the future. The opt-out cookie will apply only to this browser, and only to our website, and will be placed on your device. If you erase the cookies in this browser, you must place the opt-out cookie again.
You can find additional information about data privacy in connection with Google Analytics in the Google Analytics Help.
To statistically record the use of our website, and to optimize our website for you, we also use Google conversion tracking. As part of that use, Google Adwords will place a cookie (see item 4) on your computer if you arrived at our website through a Google ad.
Those cookies become invalid after 30 days and cannot be used to identify you. If the user visits certain pages of the Adwords customer’s website and the cookie has not expired, Google and the customer can recognize that the user has clicked the ad and been redirected to this site.
Every Adwords customer receives a different cookie. Therefore, cookies cannot be tracked over the websites of Adwords customers. The information obtained with the help of the conversion cookie serves to create conversion statistics for Adwords customers who have opted for conversion tracking. The Adwords customers learn the total number of users who have clicked on their ad and were redirected to a site provided with a conversion tracking tag. However, they do not obtain any information which can be used to identify the user personally.
If you do not wish to participate in the tracking procedure, you can reject the placement of a cookie which is required to do so – in the browser settings, for example, which will deactivate the automatic placement of cookies in general. You can also deactivate cookies for conversion tracking by changing your browser settings so that cookies from the domain “www.googleadservices.com” will be blocked. You will find Google’s data privacy information on conversion tracking here.
On our website, we use social plug-ins from the social networks Facebook, LinkedIn and YouTube, on the legal basis of Art. 6 para. 1 sentence 1 lit. f GDPR. The underlying commercial and informative purpose is to be deemed a legitimate interest for the purposes of the GDPR. The responsibility for data-privacy-compliant business operations is to be guaranteed by the provider in question. We incorporate this plug-in by way of the “two-click” method, to provide visitors to our website the best possible protection.
The company Weber Ultrasonics AG has integrated no plug-ins from the social network Facebook, 1601 South California Avenue, Palo Alto, CA 94304, USA. You’ll find an overview of Facebook plug-ins here: Facebook Plugins.
Activating a direct link to Facebook from our site will establish a connection between your browser and the Facebook server. This informs Facebook that you have visited our site with your IP address. This allows Facebook to assign the visit to our sites to your user account if you are logged in to that account when you make the visit.
We point out that, as providers of the sites, we are not informed of the content of the transmitted data or their use by Facebook. You can find additional information to that end in Facebook’s data privacy statement under Data Policy.
If you do not want Facebook to be able to assign your visit to our sites to your Facebook user account, please log out of that account.
We use the service “YouTube,” which is operated by Google LLC (“Google”), Amphitheatre Parkway, Mountain View, CA 94043, USA, to present videos and play them for you in a technically correct manner. This processing is based on Art. 6 paragraph 1 sentence 1 lit. f GDPR. Our legitimate interest is in tracking the enhancement of your user experience and the optimization of our services.
There you will obtain information about your rights and how to change the settings to ensure data privacy.
If your personal data are processed on the basis of legitimate interests in accordance with Art. 6 para. 1 sentence 1 lit. f GDPR, under Art. 21 GDPR you may lodge an objection against the processing of your personal data if there are reasons arising from your particular situation or the objection is aimed at direct advertisement. In the latter case, you have a general right of objection which we will carry out without the need for you to disclose a particular situation.
If you would like to assert your right of revocation or objection, sending an email to f.ulus@weber-ultrasonics.com will be sufficient.
Within a website visit, we use the popular SSL procedure (Secure Socket Layer) in combination with the highest encryption level supported by your browser. Normally, a 256-bit encryption is involved. If your browser does not support 256-bit encryption, we will rely on 128-bit v3 technology instead. You will be able to tell whether an individual page of our internet presence is transmitted in encrypted form by the locked presentation of the key or lock symbol in the lower status bar of your browser.
Otherwise, we use suitable technical and organizational security measures to protect your data against accidental or intentional manipulations, partial or complete loss, destruction, and unauthorized third-party access. Our security measures are continually improved to keep up with technological progress.
This data privacy statement is currently valid and was last revised in May 2018.
It can be necessary to amend this data privacy statement due to refinements of our website and the offers made on it, or due to altered statutory or official regulations. You can always access and print out the current data privacy statement on our website.

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