Home / collecting societies / norway / retransmission rights / SatCab Directive / transmission / Norwegian Supreme Court: no "retransmission" without "transmission"
Norwegian Supreme Court: no "retransmission" without "transmission"
The Supreme Court of Norway has ruled that a TV cable distributor was not retransmitting broadcasts when it received content via an encrypted fibre connection and proceeded to broadcast it to the public. Norwaco is an umbrella organisation for collecting societies in Norway, with membership including musical and television content producers. Get AS is a distributor of cable services, which does not produce original television content itself, but puts together packages of channels which are offered to subscribers. The subject of the dispute before the Court was the retransmission of music rights on the channel, TV Norge.
Until 2009, Get AS retransmitted encrypted but generally available satellite broadcast from TV channels, including TV Norge. Get AS also received signals for cable broadcasts from other satellite broadcasts. Between 2005-09 the rights for the channels were cleared by Norwaco. In 2009, the way in which TV Norge signals were received by Get AS changed; having been previously transmitted in satellite signals in the same broadcast that satellite viewers of the channel received directly, the signals were now sent in an encrypted fibre connection. After this technical change, Get AS stopped clearing with Norwaco for retransmission of the TV channels on the basis that they no longer retransmitted the content as per s34 of the Norwegian Copyright Act, and therefore no remuneration was due to the umbrella collecting society.
Get AS then issued a notice of proceedings in 2012,claiming that they were entitled to distribute TV Norge; Norwaco counterclaimed that Get AS must pay compensation for retransmission. The Oslo District Court and Bogarting Court of Appeal agreed with Get AS that they were entitled to distribute the channels and that no compensation was due. The Supreme Court of Norway agreed, dismissing the appeal, ordering Norwaco to pay 1,026,565 Kroner (around 92,000 GBP).
“Work that is lawfully included in the broadcast may, through simultaneous and unaltered retransmission, be made available to the public when the party who retransmits meets the conditions of the extended collective licence pursuant to section 36, subsection 1.
Also integral to the reasoning of the Supreme Court was the interpretation of Article 11bis of the Berne Convention, which sets out the exclusive rights of authors to authorise broadcasting and communications to the public, but which leaves it to the Member States to provide in their local legislation the conditions under which the rights may be exercised.
Norwaco argued that an author has the exclusive right to dispose of their own works, including authorisation of retransmission, which must be cleared with collecting societies. They argued that the decisive factor when applying §34 is not whether there has been a retransmission of the same physical signal broadcast via cable, and that the Court of Appeal erred in interpreting the EU's SatCab Directive 93/83/EEC as implying that there must have been an initial broadcast in order for the signal to be retransmitted.
Get AS argued that retransmission assumes that there has been a prior broadcast; §34 is a relevant limitation of author’s exclusive rights. The transmission of the copyright-protected content must be cleared, but under the agreement between Get AS and the TV-producing companies it is the producers that must ensure the necessary clearances are in place. This, argued Get AS, removes the need for an extended collective license agreement if the broadcaster is willing and able to clear the rights directly with the rightholders. A terrestial network, satellite, cable and internet distribution of content can all be primary channels; as such, the transmission by Get AS is not properly construed as a retransmission of a broadcast, which originally happens on a different primary platform.
“[T]he term “broadcasting transmission” herein implies that the work must have been transmitted by TV or radio signals that have been intended for the public”.
The signals received by Get AS were sent encrypted over fibre optic cable, that is, not in a medium of transmission intended or accessible for the public, and were therefore not retransmitted.
If there had been a retransmission, then §34 provides that the author must exercise his exclusive rights through an approved collective arrangement, such as Norwaco. The effect of Article 11bis of Berne is to give a legal basis to handing over copyright protection to collecting societies, as a limitation on the rights of individual authors – but, as §34 provides, this has been limited to retransmission.
As Justice Webster makes clear, the typical case envisaged by §34 is where broadcasts are transmitted “over-the-air” and picked up in a neighbouring country, and this is indeed an issue which has been faced by Norway, Sweden, and the Nordic Countries in the past. Signals transmitted from communication satellities between the states as a solution were not broadcast to the general public and therefore their transmission onward to audiences was not treated as retransmission within Article 11bis of Berne. Similarly the SatCab Directive, part of the EEA Agreement, does imply that for retransmission to take place, there needs to be an original transmission.
This is not to say that Get AS are relieved of any obligation to clear copyright authorisation, but it is the responsibility of SBS broadcasting, and, as expressd above, is negotiated with original rightholders rather than through the collection society. Get AS is independently responsible if SBS fails to do so.
In a dissenting judgment, Justice Arntzen argued that copyright should be technologically neutral. He considered that retransmission should be understood broadly to relate to the copyrighted content without emphasis being placed on the actual signals broadcast. Since the ultimate copyrighted content of the broadcast is the same, there would be a retransmission of signals when they are broadcast by Get AS, notwithstanding that they were received by Get via an encrypted communication. For Justice Arntzen, that the signals were received in closed transmissions and not available to the public was not a significant factor for which reason to ‘discriminate’ when determining whether a retransmission had taken place.
This judgment has the apparent potential to undermine the position of collecting societies and umbrella groups such as Norwaco. If transmissions of the same intellectual content sent to distributors via fibre optic encryption and then broadcast publicly on usual cable connections are not characterised as retransmissions, revenue could be channelled away from collecting societies, with a shift towards the rightholders negotiating content distribution for themselves.
There are additional possible considerations of compliance with international obligations including Berne and TRIPS which may arise in a future dispute which speaks to the fundamental aspects of the author's exclusive rights, but were not examined in detail in this case. What do Kat readers think - will transmission/retransmission disputes rear up in the era of simultaneous internet television transmission?
Not only does this judgment seem absolutely correct (Berne, WCT TRIPS CJEU etc)-the intervention of encryption must mean there can be no simultaneous unaltered transmission and therefore it follows no "retransmission".The role of the collecting societies must be limited under this model to unaltered retransmission.
Plus, anything that undermines the increasing role of collecting societies (who seem immune to the fact that unless they cease this relentless acquisition of authors' rights under dubious presumption, extension theories blessed by national law they will end up in situation where an abuse of a dominant position will be an obvious finding) must by definition be good.Just wait for all the other Nordic MS to start moralising about how this judgement is wrong as their collecting societies are so noble and that the EU should act to overturn it for the EEA. It seems that even a Nordic court is not prepared to accept that. Very well done Norwegian Supreme Court. Fed up with hearing how extended collective licensing models are good for all -it seems that not all agree.
I thought about the word 'retransmission' quite a while.
It seems that the word 'retransmission' is a significant limitation in comparison a 'further/subsequent communication'. I would avoid the word 'retransmission' as much as I could since it can unnecessary limit application of the law in future situations.
'Retransmission' is more or less a technically defined event. While a 'further/subsequent communication' does not dependent on particular communication techniques and is linked only to the effect/result achieved with such a subsequent communication.


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matches: EWCA EWCA UKSC UKSC UKSC EWCA EWCA


Petitioner, a corporate promoter of boxing matches, sued Don King, the president and sole shareholder of a rival corporation, alleging that King had conducted his corporation's affairs in violation of the Racketeer Influenced and Corrupt Organizations Act, which makes it "unlawful for any person employed by or associated with any enterprise ... to conduct or participate ... in the conduct of such enterprise's affairs through a pattern of racketeering activity," 18 U. S. C. §1962(c). The District Court, citing Circuit precedent, dismissed the complaint. In affirming, the Second Circuit expressed its view that §1962(c) applies only where a plaintiff shows the existence of two separate entities, a "person" and a distinct "enterprise," the affairs of which that "person" improperly conducts. In this instance, the court noted, it was undisputed that King was an employee of his corporation and also acting within the scope of his authority. Under the court's analysis, King, in a legal sense, was part of the corporation, not a "person," distinct from the "enterprise," who allegedly improperly conducted the "enterprise's affairs."
Held: In the circumstances of this case, §1962(c) requires no more than the formal legal distinction between "person" and "enterprise" (namely, incorporation); hence, the provision applies when a corporate employee unlawfully conducts the affairs of the corporation of which he is the sole owner--whether he conducts those affairs within the scope, or beyond the scope, of corporate authority. This Court does not quarrel with the basic principle that to establish liability under §1962(c) one must allege and prove the existence of two distinct entities: (1) a "person"; and (2) an "enterprise" that is not simply the same "person" referred to by a different name. Nonetheless, the Court disagrees with the appellate court's application of that "distinctness" principle to the present circumstances, in which a corporate employee, acting within the scope of his authority, allegedly conducts the corporation's affairs in a RICO-forbidden way. The corporate owner/employee, a natural person, is distinct from the corporation itself, a legally different entity with different rights and responsibilities due to its different legal status. The Court can find nothing in RICO that requires more "separateness" than that. Linguistically speaking, an employee who conducts his corporation's affairs through illegal acts comes within §1962(c)'s terms forbidding any "person" unlawfully to conduct an "enterprise," particularly when RICO explicitly defines "person" to include "any individual ... capable of holding a legal or beneficial interest in property," and defines "enterprise" to include a "corporation," §§1961(3), (4). And, linguistically speaking, the employee and the corporation are different "persons," even where the employee is the corporation's sole owner. Incorporation's basic purpose is to create a legal entity distinct from those natural individuals who created the corporation, who own it, or whom it employs. See, e.g., United States v. Bestfoods, 524 U. S. 51, 61-62. The precedent on which the Second Circuit relied involved significantly different circumstances from those here at issue. Further, to apply RICO in these circumstances is consistent with the statute's basic purposes of protecting both a legitimate "enterprise" from those who would use unlawful acts to victimize it, United States v. Turkette, 452 U. S. 576, 591, and the public from those who would unlawfully use an "enterprise" (whether legitimate or illegitimate) as a "vehicle" through which unlawful activity is committed, National Organization for Women, Inc. v. Scheidler, 510 U. S. 249, 259. Conversely, the appellate court's critical legal distinction--between employees acting within and without the scope of corporate authority--would immunize from RICO liability many of those at whom this Court has said RICO directly aims, e.g., high-ranking individuals in an illegitimate criminal enterprise, who, seeking to further the enterprise's purposes, act within the scope of their authority, cf. Turkette, supra, at 581. Finally, nothing in the statute's history significantly favors an alternative interpretation. This Court's rule is no less consistent than is the lower court's rule with the following principles cited by King: (1) the principle that a corporation acts only through its directors, officers, and agents; (2) the principle that a corporation should not be liable for its employees' criminal acts where Congress so intends; and (3) antitrust law's intracorporate conspiracy doctrine. Pp. 2-8.
219 F. 3d 115, reversed and remanded.
PETITIONER v. DON KING et al.
This case focuses upon a person who is the president and sole shareholder of a closely held corporation. The plaintiff claims that the president has conducted the corporation's affairs through the forbidden "pattern," though for present purposes it is conceded that, in doing so, he acted within the scope of his authority as the corporation's employee. In these circumstances, are there two entities, a "person" and a separate "enterprise"? Assuming, as we must given the posture of this case, that the allegations in the complaint are true, we conclude that the "person" and "enterprise" here are distinct and that the RICO provision applies.
Petitioner, Cedric Kushner Promotions, Ltd., is a corporation that promotes boxing matches. Petitioner sued Don King, the president and sole shareholder of Don King Productions, a corporation, claiming that King had conducted the boxing-related affairs of Don King Productions in part through a RICO "pattern," i.e., through the alleged commission of at least two instances of fraud and other RICO predicate crimes. The District Court, citing Court of Appeals precedent, dismissed the complaint. Civ. No. 98-6859, 1999 WL 771366, *3-4 (SDNY, Sept. 28, 1999). And the Court of Appeals affirmed that dismissal. 219 F. 3d 115 (CA2 2000) (per curiam). In the appellate court's view, §1962(c) applies only where a plaintiff shows the existence of two separate entities, a "person" and a distinct "enterprise," the affairs of which that "person" improperly conducts. Id., at 116. In this instance, "it is undisputed that King was an employee" of the corporation Don King Productions and also "acting within the scope of his authority." Id., at 117. Under the Court of Appeals' analysis, King, in a legal sense, was part of, not separate from, the corporation. There was no "person," distinct from the "enterprise," who improperly conducted the "enterprise's affairs." And thus §1962(c) did not apply. Ibid.
Other Circuits, applying §1962(c) in roughly similar circumstances, have reached a contrary conclusion. See, e.g., Brannon v. Boatmen's First Nat. Bank of Okla., 153 F. 3d 1144, 1148, n. 4 (CA10 1998); Richmond v. Nationwide Cassel L. P., 52 F. 3d 640, 647 (CA7 1995); Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F. 3d 258, 265, 269 (CA3 1995); Sever v. Alaska Pulp Corp., 978 F. 2d 1529, 1534 (CA9 1992). We granted certiorari to resolve the conflict. We now agree with these Circuits and hold that the Second Circuit's interpretation of §1962(c) is erroneous.
We do not quarrel with the basic principle that to establish liability under §1962(c) one must allege and prove the existence of two distinct entities: (1) a "person"; and (2) an "enterprise" that is not simply the same "person" referred to by a different name. The statute's language, read as ordinary English, suggests that principle. The Act says that it applies to "person[s]" who are "employed by or associated with" the "enterprise." §1962(c). In ordinary English one speaks of employing, being employed by, or associating with others, not oneself. See Webster's Third New International Dictionary 132 (1993) (defining "associate"); id., at 743 (defining "employ"). In addition, the Act's purposes are consistent with that principle. Whether the Act seeks to prevent a person from victimizing, say, a small business, S. Rep. No. 91-617, p. 77 (1969), or to prevent a person from using a corporation for criminal purposes, National Organization for Women, Inc. v. Scheidler, 510 U. S. 249, 259 (1994), the person and the victim, or the person and the tool, are different entities, not the same.
The Acting Solicitor General reads §1962(c) "to require some distinctness between the RICO defendant and the RICO enterprise." Brief for United States as Amicus Curiae 11. And she says that this requirement is "legally sound and workable." Ibid. We agree with her assessment, particularly in light of the fact that 12 Courts of Appeals have interpreted the statute as embodying some such distinctness requirement without creating discernible mischief in the administration of RICO. See St. Paul Mercury Ins. Co. v. Williamson, 224 F. 3d 425, 445 (CA5 2000); United States v. Goldin Industries, Inc., 219 F. 3d 1268, 1270 (CA11) (en banc), cert. denied, 531 U. S. 1102 (2000); Begala v. PNC Bank, 214 F. 3d 776, 781 (CA6 2000), cert. denied, 531 U. S. __ (2001); Doyle v. Hasbro, Inc., 103 F. 3d 186, 190 (CA1 1996); Richmond, supra, at 646-647; Gasoline Sales, Inc. v. Aero Oil Co., 39 F. 3d 70, 72-73 (CA3 1994); Confederate Memorial Assn., Inc. v. Hines, 995 F. 2d 295, 299-300 (CADC 1993); Board of Cty. Comm'rs, San Juan Cty. v. Liberty Group, 965 F. 2d 879, 885 (CA10), cert. denied, 506 U. S. 918 (1992); River City Markets, Inc. v. Fleming Foods West, Inc., 960 F. 2d 1458, 1461 (CA9 1992); Busby v. Crown Supply, Inc., 896 F. 2d 833, 840 (CA4 1990); Atlas Pile Driving Co. v. DiCon Financial Co., 886 F. 2d 986, 995 (CA8 1989); Bennett v. United States Trust Co. of New York, 770 F. 2d 308, 315, and n. 2 (CA2 1985), cert. denied, 474 U. S. 1058 (1986); see also Semiconductor Energy Laboratory Co., Ltd. v. Samsung Electronics Co., Ltd., 204 F. 3d 1368, 1383, n. 7 (CA Fed. 2000) (approving of distinctness requirement in dicta), cert. denied, 531 U. S. __ (2001). Indeed, this Court previously has said that liability "depends on showing that the defendants conducted or participated in the conduct of the `enterprise's affairs,' not just their own affairs." Reves v. Ernst & Young, 507 U. S. 170, 185 (1993).
While accepting the "distinctness" principle, we nonetheless disagree with the appellate court's application of that principle to the present circumstances--circumstances in which a corporate employee, "acting within the scope of his authority," 219 F. 3d, at 117, allegedly conducts the corporation's affairs in a RICO-forbidden way. The corporate owner/employee, a natural person, is distinct from the corporation itself, a legally different entity with different rights and responsibilities due to its different legal status. And we can find nothing in the statute that requires more "separateness" than that. Cf. McCullough v. Suter, 757 F. 2d 142, 144 (CA7 1985) (finding either formal or practical separateness sufficient to be distinct under §1962(c)).
Linguistically speaking, an employee who conducts the affairs of a corporation through illegal acts comes within the terms of a statute that forbids any "person" unlawfully to conduct an "enterprise," particularly when the statute explicitly defines "person" to include "any individual ... capable of holding a legal or beneficial interest in property," and defines "enterprise" to include a "corporation." 18 U. S. C. §§1961(3), (4). And, linguistically speaking, the employee and the corporation are different "persons," even where the employee is the corporation's sole owner. After all, incorporation's basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs. See United States v. Bestfoods, 524 U. S. 51, 61-62 (1998); Burnet v. Clark, 287 U. S. 410, 415 (1932); 1 W. Fletcher, Cyclopedia of the Law of Private Corporations §§7, 14 (rev. ed. 1999).
We note that the Second Circuit relied on earlier Circuit precedent for its decision. But that precedent involved quite different circumstances which are not presented here. This case concerns a claim that a corporate employee is the "person" and the corporation is the "enterprise." It is natural to speak of a corporate employee as a "person employed by" the corporation. §1962(c). The earlier Second Circuit precedent concerned a claim that a corporation was the "person" and the corporation, together with all its employees and agents, were the "enterprise." See Riverwoods Chappaqua Corp. v. Marine Midland Bank, N. A., 30 F. 3d 339, 344 (1994) (affirming dismissal of complaint). It is less natural to speak of a corporation as "employed by" or "associated with" this latter oddly constructed entity. And the Second Circuit's other precedent also involved significantly different allegations compared with the instant case. See Anatian v. Coutts Bank (Switzerland) Ltd., 193 F. 3d 85, 89 (1999) (affirming dismissal where plaintiff alleged that same bank was both "person" and "enterprise"), cert. denied, 528 U. S. 1188 (2000); Discon, Inc. v. NYNEX Corp., 93 F. 3d 1055, 1064 (1996) (involving complaint alleging that corporate subsidiaries were "persons" and subsidiaries, taken together as parent, were "enterprise"), vacated on other grounds, 525 U. S. 128 (1998); Bennett, supra, at 315, and n. 2 (same as Anatian). We do not here consider the merits of these cases, and note only their distinction from the instant case.
Further, to apply the RICO statute in present circumstances is consistent with the statute's basic purposes as this Court has defined them. The Court has held that RICO both protects a legitimate "enterprise" from those who would use unlawful acts to victimize it, United States v. Turkette, 452 U. S. 576, 591 (1981), and also protects the public from those who would unlawfully use an "enterprise" (whether legitimate or illegitimate) as a "vehicle" through which "unlawful ... activity is committed," National Organization for Women, Inc., 510 U. S., at 259. A corporate employee who conducts the corporation's affairs through an unlawful RICO "pattern . . . of activity," §1962(c), uses that corporation as a "vehicle" whether he is, or is not, its sole owner.
Conversely, the appellate court's critical legal distinction--between employees acting within the scope of corporate authority and those acting outside that authority--is inconsistent with a basic statutory purpose. Cf. Reves, supra, at 184 (stating that an enterprise is " `operated,' " within §1962(c)'s meaning, "not just by upper management but also by lower rung participants in the enterprise who are under the direction of upper management" (emphasis added)). It would immunize from RICO liability many of those at whom this Court has said RICO directly aims--e.g., high-ranking individuals in an illegitimate criminal enterprise, who, seeking to further the purposes of that enterprise, act within the scope of their authority. Cf. Turkette, supra, at 581 (Congress "did nothing to indicate that an enterprise consisting of a group of individuals was not covered by RICO if the purpose of the enterprise was exclusively criminal").
Finally, we have found nothing in the statute's history that significantly favors an alternative interpretation. That history not only refers frequently to the importance of undermining organized crime's influence upon legitimate businesses but also refers to the need to protect the public from those who would run "organization[s] in a manner detrimental to the public interest." S. Rep. No. 91-617, at 82. This latter purpose, as we have said, invites the legal principle we endorse, namely, that in present circumstances the statute requires no more than the formal legal distinction between "person" and "enterprise" (namely, incorporation) that is present here.
In reply, King argues that the lower court's rule is consistent with (1) the principle that a corporation acts only through its directors, officers, and agents, 1 Fletcher, supra, §30, (2) the principle that a corporation should not be liable for the criminal acts of its employees where Congress so intends, Brief for Respondents 20-21, and (3) the Sherman Act principle limiting liability under 15 U. S. C. §1 by excluding "from unlawful combinations or conspiracies the activities of a single firm," Copperweld Corp. v. Independence Tube Corp., 467 U. S. 752, 769-770, n. 15 (1984). The alternative that we endorse, however, is no less consistent with these principles. It does not deny that a corporation acts through its employees; it says only that the corporation and its employees are not legally identical. It does not assert that ordinary respondeat superior principles make a corporation legally liable under RICO for the criminal acts of its employees; that is a matter of congressional intent not before us. See, e.g., Gasoline Sales, Inc., 39 F. 3d, at 73 (holding that corporation cannot be "vicariously liable" for §1962(c) violations committed by its vice president). Neither is it inconsistent with antitrust law's intracorporate conspiracy doctrine; that doctrine turns on specific antitrust objectives. See Copperweld Corp., supra, at 770-771. Rather, we hold simply that the need for two distinct entities is satisfied; hence, the RICO provision before us applies when a corporate employee unlawfully conducts the affairs of the corporation of which he is the sole owner--whether he conducts those affairs within the scope, or beyond the scope, of corporate authority.
For these reasons, the Court of Appeals' judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.


On January 15, 2010, the U.S. District Court for the Northern District of West Virginia held that a PRP’s right to contribution under CERCLA is a significantly protectable interest permitting a non-settling PRP to intervene as of right to challenge a consent decree between the federal government and a settling PRP. United States v. Exxon Mobil Corp., No. 08-124 (N.D. W. Va. Jan. 15, 2010). In Exxon, U.S. EPA identified Vertellus Specialties, Inc. (“Vertellus”) and CBS Corporation (“CBS”) as PRPs for contamination at Big John’s Salvage Site (“BJS Site”), a former industrial site in Marion County, West Virginia, the remediation of which could cost more than $24 million. Exxon, previously identified by EPA as a PRP due to its predecessor’s coke production activities nearby, had agreed to a consent decree under which it would pay the government $3 million in exchange for relief from liability for pollution at the BJS site and protection from contribution claims by other PRPs; Vertellus and CBS asserted that the decree unreasonably underestimates Exxon’s liability and sought intervention under Fed. R. Civ. P. 24(a)(2) and CERCLA § 113(i). Overruling EPA’s objections, the court granted Vertellus’s and CBS’s motions to intervene “for the limited purpose of challenging the proposed consent decree.” Exxon, No. 08-124, slip op. at 20.
Finding the test for motions to intervene to be the same under CERCLA and the Federal Rules of Civil Procedure, the court began by examining the central issue of whether the potential contribution rights of Vertellus and CBS qualified as “significantly protectable interests in the outcome of the [consent decree action].” Id. at 2. Noting that the 4th Circuit had not previously decided this question, the district court reviewed the growing number of divergent rulings on the issue and, though acknowledging that some other district courts and the 3rd Circuit had found the contribution right to be too speculative and contingent, ultimately agreed with the 10th Circuit’s decision in United States v. Albert Inv. Co.., 585 F.3d 1386 (10th Cir. 2009), that the CERCLA contribution right is a legally sufficient interest to justify intervention as of right in a consent decree action. Referencing the 4th Circuit’s “policy of ‘liberal’ intervention,” the court concluded that “the right of contribution held by CBS and Vertellus, although not certain, is a valuable interest that each would lose should the Court enter the proposed consent decree without providing them an opportunity to be heard.” Id. at 12-13.
Finally, the court found that the other requirements for intervention as of right had been met. Although EPA argued that CBS’s request was untimely, the court concluded that neither the government nor Exxon would be prejudiced if CBS were allowed to intervene, reasoning that allowing CBS to intervene would not create significant additional delay; the court has an interest in determining the fairness and reasonableness of a proposed decree and the arguments of CBS and Vertellus would assist in that determination; and the government intends to proceed with the remediation even if there is a delay in the expected flow of funds from Exxon pursuant to the consent decree.
On January 20, 2010, the United States District Court for the Southern District of Illinois granted a CERCLA PRP’s motion for leave to file an amended pleading seeking cost recovery under CERCLA § 107(a), in light of the Supreme Court’s ruling in United States v. Atl. Research, 551 U.S. 128 (2007). United States v. Pharmacia Corp., No. 99-63, 2010 U.S. Dist. LEXIS 4343 (S.D. Il. Jan. 20, 2010). In Pharmacia, plaintiff Pharmacia Corporation argued that the holding in Atlantic Research was a “momentous change in law” enabling it to bring a CERCLA § 107(a) claim for direct and future costs, which it allegedly incurred pursuant to two administrative orders, against Rogers Cartage Company (“Rogers”), a non-settling PRP. Id. at *21. In previous rulings, Pharmacia’s § 113(f) contribution claim had been denied. The district court observed that, while Atlantic Research ostensibly allows PRPs such as Pharmacia to bring claims under § 107 for costs directly incurred in remediating a site, the Supreme Court did not decide whether costs not “voluntarily” incurred, such as those incurred pursuant to a consent decree, are recoverable under § 107(a). Nevertheless, the district court concluded that Pharmacia’s position was not “frivolous or implausible.” Id. at *22. The district court also rejected Rogers’ argument that Pharmacia had unduly delayed by filing an amended claim 2-1/2 years after the Supreme Court’s decision. The court found that knowledge of the potential impact of the decision could not be “immediately attributable” to Pharmacia, and Rogers was not unduly prejudiced, particularly given that, even without any amended pleadings, the case had been proceeding for 11 years.
On January 7, 2010, U.S. EPA initiated a 50-day public comment period, 75 Fed. Reg. 984, on recommended interim preliminary remediation goals (“PRGs”) for dioxin in soil at CERCLA and RCRA sites that it established in draft guidance released on December 30, 2009: “Guidance on Recommended Interim Preliminary Remediation Goals for Dioxin in Soil at Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Resource Conservation and Recovery Act (RCRA) Sites” (“Draft Guidance”). EPA intends to finalize these recommended interim PRGs in June of 2010, after it has received and evaluated public comments. The recommended interim PRGs will apply to CERCLA and RCRA sites until EPA issues updated recommended PRGs based on its final dioxin reassessment, which EPA intends to complete by the end of 2010. Once the PRGs are updated based on the final dioxin reassessment, EPA will “re-evaluate cleanup decisions at [CERCLA] and [RCRA] that were based on the 2010 recommended PRGs to ensure that cleanups remain protective for human health.” Draft Guidance at 5. In the meantime, the Draft Guidance will supersede the PRG guidance last issued in 1998.
PRGs are chemical- and media- specific concentration goals, set at levels believed to be protective of human health, which are used as a target in selecting and executing remedial activities at contaminated sites. The currently recommended PRGs for soil at CERCLA and RCRA sites, per the 1998 guidance, are 1,000 ppt (parts per trillion) dioxin toxicity equivalents (“TEQs”) in residential soil and a range of 5,000 - 20,000 ppt for commercial/industrial soil. The recommended interim PRGs proposed in December 2009 are more conservative: 72 ppt for residential soil and 950 - 2,000 ppt for commercial/industrial soil. EPA considers these levels adequately protective against non-cancer effects from “human exposure by ingestion and dermal contact with surface soils.” Draft Guidance at 3. While EPA believes these levels are also protective against cancer effects at the 1 in 100,000 risk level, EPA also is seeking comment on PRGs protective against cancer effects at the 1 in a million risk level, at 3.7 ppt for residential soil and 37 - 17 ppt for commercial/industrial soil. EPA notes that PRGs this low would be equivalent to or below background levels in rural soil and recognizes that it is not its policy to require clean-up below background levels. 75 Fed. Reg. at 986.
The United States District Court for the Northern District of Texas held January 19 that, for purposes of RCRA’s § 7002(a)(1)(B) citizen suit provision, a determination of whether a contaminant may present an imminent and substantial danger must be based on conditions at the time of filing. Am. Int’l Specialty Lines Ins. Co. v. 7-Eleven, Inc., No. 08-807, 2010 U.S. Dist. LEXIS 4088 (N.D. Tex. Jan. 19, 2010). In American International, plaintiff American International Specialty Lines Insurance Company (“AISLIC”) alleged that leakage from underground storage tanks under a gas station operated by defendant 7-Eleven had harmed its insureds’ adjacent property (“the Property”) and sought, inter alia, an injunction under RCRA § 7002(a)(1)(B) compelling 7-Eleven to investigate and remediate the Property and reimbursement of AISLIC’s investigation and remediation costs under the Texas Solid Waste Disposal Act (“SWDA”). AISLIC sought summary judgment on its RCRA and SWDA claims, and 7-Eleven sought summary judgment against AISLIC on the RCRA claim. The court denied 7-Eleven’s motion, but granted in part and denied in part AISLIC’s motion, finding genuine issues of material fact for trial on AISLIC’s claims. Id. at *21.
With regard to the RCRA claim, the court began by noting that the cross-motions for summary judgment mainly disputed whether the contamination at the Property presented an imminent and substantial endangerment to human health or the environment, a critical element in bringing a citizen suit under RCRA. In addressing this issue, the court stated that the appropriate inquiry was “whether conditions at [the Property] at the time of suit, May 12, 2008,” posed an imminent danger. The timing issue is crucial here because in October 2008, there was evidence of contamination at levels above Texas Protective Contamination Levels. Then in early January 2009, AISLIC’s consultant informed the state that the site would not pose a risk to human health or the environment and sought and obtained Texas approval for a limited remediation approach. Id. at *10. 7-Eleven argued that AISLIC’s report to Texas regulators demonstrated that the site did not pose an imminent danger. Finding that the evidence indicated elevated levels of potentially hazardous contaminants at the Property when the suit was filed, and that 7-Eleven’s motion cited almost exclusively to contaminant levels in 2009, the court denied 7-Eleven’s motion and found that the imminent danger issue was a matter for trial.
The court granted AISLIC’s motion for partial summary judgment as to the other two elements of § 7002(a)(1)(B), finding that 7-Eleven was an “owner or operator of a waste treatment, storage, or disposal facility”; and that 7-Eleven “contributed to the handling, storage, treatment, transportation, or disposal of solid or hazardous waste.” Id. at *12-13.
With regard to the SWDA cost recovery claim, the court rejected 7-Eleven’s argument that AISLIC must prove that its response costs were caused by contamination migrating from the 7-Eleven site, rather than pre-existing on the Property, because there was evidence that at least some of the contamination came from 7-Eleven. The court also found a genuine issue of fact with regard to 7-Eleven’s affirmative defense seeking an offset for higher or unnecessary costs caused by AISLIC’s alleged failure to take effective and timely response measures upon learning of the contamination, and denied 7-Eleven’s motion for summary judgment on that issue.
On January 26, 2010, the United States District Court for the Northern District of California found that, since plaintiffs allegedly injured as a result of improper disposal of hazardous waste had not submitted evidence that the defendants intended to harm them in particular, plaintiffs’ claim for intentional infliction of emotional distress could not proceed. Whitlock v. Pepsi Americas, No. 08-2742, 2010 U.S. Dist. LEXIS 5837 (N.D. Cal. Jan. 26, 2010). This case was one of several arising out of contamination at Pepsi Americas’ Remco facility in Willits, California. In the present case, defendants Pepsi Americas, et al. (“Pepsi”) moved for summary judgment on plaintiffs’ claim that defendants’ discharge of hazardous substances despite knowing it would cause contamination that might affect people in the area amounted to intentional infliction of emotional distress (“IIED”). The court granted defendants’ motion.
Pepsi argued that plaintiffs’ claim failed because plaintiffs could not establish either that Pepsi’s conduct was “directed at each individual plaintiff and intended to cause that plaintiff severe emotional distress” or “done with knowledge of each plaintiff’s presence and exposure [to the hazardous substances at issue], and with a realization that each plaintiff was substantially certain to suffer severe emotional distress.” Whitlock, No. 08-2742, at *11. Plaintiffs responded by “[incorporating] by reference” an opposition brief filed in a previous – and unsuccessful – case, essentially arguing that they only need show that Pepsi intended more generally that “citizens of Willits” be harmed. Id. at *14.
The court rejected plaintiffs’ argument, emphasizing that the case plaintiffs cited in support of their position “[did] not recognize an IIED claim based on general misconduct.” Id. The court noted that, while a plaintiff need not show that Pepsi knew the particular names of any individual plaintiffs affected by its conduct, “it is not enough to show that the defendant knew or should have known that there may be people in the area who might be affected by defendants’ conduct.” Id. at *17. Therefore, finding that plaintiffs had not satisfied this element, the court granted Pepsi’s motion for summary judgment.


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1 F.3d 138 (2nd Cir. 1993), 1630, May Dept. Stores Co. v. International Leasing Corp., Inc.
88 F.3d 347 (5th Cir. 1996), 95-10688, Clardy Mfg. Co. v. Marine Midland Business Loans Inc.
799 F.2d 194 (5th Cir. 1986), 85-3514, Fischbach and Moore, Inc. v. Cajun Elec. Power Co-op., Inc.
379 F.3d 445 (7th Cir. 2004), 03-2752, Sims-Madison v. Inland Paperboard and Packaging, Inc.
820 F.2d 643 (3rd Cir. 1987), 86-1539, T.J. Trauner Associates, Inc. v. Cooper-Benton, Inc.
693 F.2d 1146 (5th Cir. 1982), 81-1396, Flowers v. Diamond Shamrock Corp.
838 F.2d 149 (6th Cir. 1988), 86-6188, Bailey v. Chattem, Inc.

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As many recent examples show, the filing of criminal charges against police officers for excessive use of force is exceedingly rare, and even if charges are brought, juries are loath to convict them. It is clear that if systemic problems have afflicted a police department’s use of force policies, criminal prosecutions may not be the best way to correct them.
[A] small but growing group of police departments around the country have found innovative ways to analyze information gathered from lawsuits. They investigate lawsuit claims as they would civilian complaints, and they discipline, retrain or fire officers when the claims are substantiated. They look for trends in lawsuits suggesting problem officers, units and practices, and they review the evidence developed in the cases for personnel and policy lessons.
Indeed, lawsuits can have a direct and positive impact on law enforcement, with settlements in individual cases leading to better training, safer policies and overall better practices. The following are examples of recent cases that have had such a constructive result. Notably, each case would be essentially barred by current legislation in Congress that would make it nearly impossible to sue the police, no matter how severe the constitutional violation.
Jeremy McDole, 28 and paralyzed from the waist down, was shot to death by four police officers on September 23, 2015 while sitting in his wheelchair. The officers had confronted McDole after receiving a 911 call about a man with a self-inflicted gunshot wound. Bystander video showed an officer pointing a gun at McDole, screaming at him to drop his gun and put his hands up and then firing a shot at McDole when he started fidgeting in his chair and moving his hands toward his waist. According to a Delaware Department of Justice Report, the footage also clearly showed that “(1) Mr. McDole’s hands were on the arms of his wheelchair when he was shot, and (2) [the officer] gave Mr. McDole two commands to ‘show me your hands’ in the space of approximately two seconds before he discharged his shotgun,” an act that “fundamentally changed the dynamic of the incident involving Mr. McDole.” Less than one minute after the initial shot was fired, three other officers shot McDole 15 times, killing him.
In March 2016, McDole’s family filed a civil lawsuit against the city of Wilmington and its police department, alleging that the officers had violated “use of force” policies, had no justification for such “grossly excessive and wanton lethal force” and that the shooting was racially motivated.
Nine months later, the case settled for $1.5 million. As part of the agreement, Wilmington police pledged to evaluate its current de-escalation tactics and officer training and “consider a comprehensive use of force policy that will outline when force is appropriate and train officers in de-escalation procedures.” In early March 2017 – three months after the settlement was announced – the police chief met with McDole’s family and stated that Wilmington police would adopt an objective use of force standard and annually undergo training in how to deal with mental health encounters, use of force and de-escalation.
Darius Pinex, a 27-year-old father of three, was shot to death during a January 7, 2011 traffic stop in Chicago’s Englewood neighborhood. According to the officers, they stopped Pinex’s car with their guns drawn after hearing an emergency radio alert about a similar vehicle connected to a shooting. They claimed that this dispatch plus Pinex’s actions – namely refusing orders, driving in reverse and accelerating forward – justified opening fire on his car and shooting him in the head.
During discovery, Pinex’s family was led to believe there was no recording of the emergency dispatch or any documents related to the recording. However, the judge learned mid-jury trial that: 1) the city attorney had found a recording of the actual alert the officers heard before the stop; 2) the actual alert contradicted the officers’ story about an emergency call connecting a car like Pinex’s to an earlier shooting; and 3) the city attorney had uncovered the actual alert a week before trial.
In a January 2016 opinion, the judge chastised the city attorney for intentionally withholding this crucial piece of evidence, criticized another city attorney for failing to make a reasonable effort to find that evidence and ordered a new trial. Widespread publicity about the ruling prompted the city’s Federal Civil Rights Litigation (FCRL) Division to announce greater transparency regarding active cases. In addition, the mayor’s corporation counsel “instituted several new procedures, including a policy that drastically reduces the Police Department’s role in collecting documents for litigation.” And within days of the decision, Chicago’s mayor hired a former U.S. attorney to conduct an extensive review of the FCRL department; that six-month inquiry resulted in over 50 recommendations of reforms. The case ultimately settled for $2.34 million in December 2016.
On April 26, 2014, preschool teacher Samantha Ramsey, 19, was shot to death by a Boone County sheriff’s deputy while driving away from a large outdoor party along the Ohio River. The officer had jumped on the hood of Ramsey’s car when she allegedly began to speed off instead of stopping for a sobriety check. The officer then pulled out his gun and shot Ramsey four times through the windshield, later telling investigators that he thought he would be killed. The officer was never charged or disciplined.
Discovery revealed, among other things, that: 1) “Boone County conducted an investigation not designed to determine what really happened”; 2) all members of a four-officer panel reviewing the County’s investigation of the killing had agreed that if the officer “had let the car just go, the situation wouldn’t have happened” and that, instead of shooting Ramsey, he could have “followed in his cruiser or could’ve taken down plate information and radioed colleagues to stop her”; and 3) the sheriff’s deputy might have been on Xanax the night of the shooting.
Jaime Reyes, 28-years-old, died on June 6, 2012 after being shot multiple times in the back by a Fresno, CA police officer. Reyes, on meth, had run away from police; an officer shot him as he neared the top of a fence and then three more times in the back as he lay face down on the ground. He was frisked, handcuffed and later provided with medical assistance, ultimately dying at the hospital after failed emergency surgery. Less than a year later, Reyes’ parents filed a wrongful death action against the City of Fresno, its police chief and officers from the Fresno Police Department. According to the complaint, Reyes never had anything in his hands, never threatened the officers and was more than five yards ahead of the officer when he was first shot. It was only as he lay motionless from the three additional shots that officers found an unloaded gun wrapped in a plastic bag in his shorts pocket.
In November 2016, the case settled for $2.2 million. As part of the settlement, the Fresno Police Department agreed to: 1) change its use of-force policy; 2) train sergeants and patrol officers not to fire extra bullets unnecessarily; and 3) train homicide detectives and police Internal Affairs officers to consider witness statements that conflict with accounts by officers at the scene.
On October 11, 2012, U.S. Navy veteran Kenny Releford, 38, was shot to death by a Houston police officer as he stood unarmed in the middle of the street. Releford’s friend had called police for help after Releford, who suffered from schizophrenia, broke into the friend’s home during a mental health crisis. No one in the house had been injured, and Releford went home after the incident. When the officer arrived, he ordered Releford outside with his patrol loudspeaker; Releford complied and began approaching the officer as instructed. Multiple eyewitnesses testified through affidavits that: 1) Releford’s hands were clearly visible and unarmed when the officer shot him; and 2) the officer shot Releford again as he tried to get up from the street.
Two years later, Releford’s father filed a federal lawsuit, alleging that the officer had “violated Kenny’s constitutional rights by using excessive force against him” and that the City of Houston had “violated Kenny’s constitutional rights by failing to properly supervise, train, discipline, or investigate its officers in the use of force and by adopting a custom or policy that caused Kenny’s death in violation of his constitutional rights.” He argued that that Houston Police Department officials “repeatedly improperly cleared officers who’d shot or killed unarmed people — even when the department's own internal affairs investigations revealed violations of training, policies or state law. In June 2017, the case settled for $260,000.
Bruce Klobuchar, the 25-year-old son of a former police officer, died in August 1995 after Los Angeles police bound his legs and hands together behind his back. The officers claimed he was under the influence of drugs and causing a disturbance and that they had decided to “hogtie” him because other restraint methods proved ineffective. The county coroner found that restraint contributed to his death.
7 Heather Cherone, “Council Agrees To Pay $5.5M To Settle Three Police Misconduct Lawsuits,” dna info, December 14, 2016, https://www.dnainfo.com/chicago/20161214/englewood/council-agrees-pay-55m-settle-three-police-misconduct-lawsuits; Stacy St. Clair, “2 suits over fatal Chicago police shootings being settled for about $3M each,” Chicago Tribune, December 9, 2016, http://www.chicagotribune.com/news/local/breaking/ct-police-shooting-settlement-sanction-20161209-story.html; Colyer v. City of Chicago, 2016 U.S. Dist. LEXIS 40 (N.D. Ill. January 4, 2016).
9 Colyer v. City of Chicago, 2016 U.S. Dist. LEXIS 40 (N.D. Ill. January 4, 2016).
11 Heather Cherone, “Council Agrees To Pay $5.5M To Settle Three Police Misconduct Lawsuits,” dna info, December 14, 2016, https://www.dnainfo.com/chicago/20161214/englewood/council-agrees-pay-55m-settle-three-police-misconduct-lawsuits; David Thomas, “$10M OK’d for Chicago settlements,” Chicago Law Bulletin, December 13, 2016, http://www.chicagolawbulletin.com/Archives/2016/12/13/10M-Chicago-settlements-12-13-16.aspx; Stacy St. Clair, “2 suits over fatal Chicago police shootings being settled for about $3M each,” Chicago Tribune, December 9, 2016, http://www.chicagotribune.com/news/local/breaking/ct-police-shooting-settlement-sanction-20161209-story.html; Fran Spielman, “$2.4M settlement in police shooting case tied to legal misconduct,” Chicago Sun-Times, December 8, 2016, http://chicago.suntimes.com/politics/2-4-million-settlement-in-police-shooting-case-tied-to-legal-misconduct/; Michael Tarm, “Top Chicago lawyer resigns after judge rules he hid evidence in fatal police shooting,” Associated Press, January 5, 2016, http://www.businessinsider.com/ap-chicago-lawyer-resigns-after-judge-rules-he-hid-evidence-2016-1; Colyer v. City of Chicago, 2016 U.S. Dist. LEXIS 40 (N.D. Ill. January 4, 2016).
17 Pablo Lopez, “Fresno settles police shooting lawsuit for $2.2 million,” Fresno Bee, November 22, 2016, http://www.fresnobee.com/news/local/crime/article116526138.html; Reyes v. City of Fresno, No. 1:13-cv-00418-LJO-SKO (E.D. Cal.)(first amended complaint filed November 1, 2013), https://assets.documentcloud.org/documents/2111668/jaime-reyes-v-fresno-police.pdf; Reyes v. City of Fresno, No. 1:13-cv-00418-LJO-SKO, 2013 WL 2147023 (E.D. Cal., order on defendants’ motion to dismiss filed May 15, 2013); “Fresno Family Files Lawsuit Against FPD,” KFSN-TV Fresno, March 23, 2013, http://abc30.com/archive/9037821; Reyes v. City of Fresno, No. 1:13-cv-00418-LJO-SKO (E.D. Cal., complaint filed March 20, 2013).
20 Releford v. City of Houston, No. 4:14-CV-2810 (S.D. Tex.)(memorandum and order filed February 29, 2016). See also, Relefordv. City of Houston, No. 4:14-CV-2810 (S.D. Tex.)(complaint filed October 2, 2014).


Title: Amending Title 9 of The Philadelphia Code, entitled "Regulation of Businesses, Trades and Professions," by creating a wage theft coordinator for the City and adding definitions, duties, penalties, fees, procedural requirements, a private right of action and other related items regarding wage theft ; all under certain terms and conditions.
Amending Title 9 of The Philadelphia Code, entitled “Regulation of Businesses, Trades and Professions,” by creating a wage theft coordinator for the City and adding definitions, duties, penalties, fees, procedural requirements, a private right of action and other related items regarding wage theft ; all under certain terms and conditions.
TITLE 9. REGULATION OF BUSINESSES, TRADES AND PROFESSIONS.
CHAPTER 9-4300. WAGE THEFT COMPLAINTS.
“Authorized Organization” means a group of employees, labor organization or party acting on behalf of an employee to whom any type of wages is payable.
“Employer” shall have the same meaning as in the Pennsylvania Minimum Wage, Act of Jan. 17, 1968, P.L. 11, No. 5, as amended and the Wage Payment and Collection Law, Act of July 14, 1961, P.L. 637, No. 329, as amended.
“Employee” shall have the same meaning as the term “employe” in the Pennsylvania Minimum Wage Act, Act of Jan. 17, 1968, P.L. 11, No. 5, as amended.
(b) Any member of an entity which alleges wage theft.
“Wages” shall have the same meaning as in the Pennsylvania Wage Payment and Collection Law, Act of July 14, 1961, P.L. 637, No. 329, as amended.
“Reasonable time” shall be presumed to be no later than fourteen (14) calendar days from the date on which the work is performed unless the employer has established, by policy or practice, a pay schedule whereby employees earn and are consistently paid wages according to regularly recurring pay periods, in which case such pay schedule shall govern.
“Maximum Threshold Amount” means ten thousand dollars ($10,000.00).
“Minimum Threshold Amount” means one hundred dollars ($100.00).
“Wage Theft” means a violation of the Pennsylvania Wage Payment and Collection Law, Act of July 14, 1961, P.L. 637, No. 329, as amended, or a violation of the Pennsylvania Minimum Wage Act, Act of Jan. 17, 1968, P.L. 11, No. 5, as amended, or any other federal or state law regulating the payment of wages, where the work is performed in Philadelphia or the employment contract underlying the violation is made in Philadelphia.
§ 9-4302. Wage Theft Coordinator; Duties.
(1) Coordinator. The Managing Director shall designate a wage theft coordinator to carry out the duties set forth in this Chapter.
(c) Adjudicate complaints as provided in this Chapter.
(d) Oversee a public outreach and education program designed to inform workers and employers of their rights and duties in complying with Chapter and other labor laws. Special emphasis should be placed on outreach to workers with limited English proficiency and other at-risk groups.
(e) Refer complaints and complainants to other governmental agencies for further action, if deemed necessary.
§ 9-4303. Procedures for Wage Theft Complaints.
(1) Filing Wage Theft Complaints.
(a) A proper party must allege a wage theft violation in which the unpaid wages are equal to or greater than the minimum threshold amount and equal to or less than the maximum threshold amount.
(b) A signed complaint for wage theft must be filed with the wage theft coordinator less than three years from the date the wage theft occurred. A wage theft complaint properly filed under this Section tolls the applicable statute of limitations for any action in state or federal court concerning the same set of facts and circumstances.
(c) The complaint shall set forth the facts upon which it is based with sufficient specificity to identify the employer or employers and for the wage theft coordinator to determine both that an allegation of wage theft has been made and that the threshold amount has been met.
(d) Upon the filing of any complaint, the wage theft coordinator shall promptly determine that the wage theft complaint alleges wage theft, names at least one employer, and meets the threshold amount criterion. The duty of the wage theft coordinator in determining whether a complaint meets this criterion is limited to receiving the complaint and comparing the information provided in the complaint to the criteria required herein. This determination is a ministerial act and may not be based on further investigation or the exercise of independent judgment.
(e) Upon making such determination, the wage theft coordinator shall serve the complaint and a written notice on the employer or employers charged with the commission of a wage theft practice, setting forth the allegations, rights and obligations of the parties. Such service shall be by personal service or certified mail.
(a) Each employer shall file an answer to the complaint with the wage theft coordinator not later than thirty (30) days after receipt of the complaint. Such answer shall include all available records of the hours worked by the complaining employee or employees, the amounts paid to those employees, and any credits or deductions that may have been lawfully taken.
(b) In its answer, an employer may admit liability for either part of or the entire amount in dispute.
(a) The wage theft coordinator shall have the power to subpoena records from any party to the complaint. Said records shall be returned to the wage theft coordinator within thirty (30) days after receipt of the subpoena.
(4) Standards for Resolving Factual Disputes.
(a) In the event that there is a factual dispute as to whether wages are owed or the amount of wages that are owed, the complainant shall bear the burden of proof by a preponderance of the evidence.
(ii) Such records are imprecise, inadequate or do not exist.
(c) Failure to provide any records by the employer or employers shall raise a rebuttable presumption that the wages complained of were not paid.
(d) An employer may present other evidence to negate the reasonableness of the inferences to be drawn from the complainant’s evidence in (b), but the burden is on the employer to do so.
(e) Any person who, makes or causes to be made any false entry or false statement of fact in any complaint, answer, report, account, record or other document submitted to the wage theft coordinator, or shall willfully mutilate, alter or by any other means falsify any documentary evidence, may be fined by the wage theft coordinator not more than two thousand dollars ($2000.00).
(5) Adjudication by Wage Theft Coordinator.
(a) Within sixty (60) days of receipt of the Answer, or within 110 days of receipt of the Complaint, whichever is earlier, the wage theft coordinator shall issue a written adjudication of the Complaint. The adjudication shall include written findings of fact and conclusions of law.
(b) If wages are determined to be owed and the employer has not admitted that those wages are owed in its Answer, the wage theft coordinator shall order them paid. In addition, the wage theft coordinator shall order penalties consistent with this Code to be paid to the complainant. Each week in which any wages are unpaid is a separate violation.
(c) If wages are determined to be owed and the employer has admitted that those wages are owed in its Answer, the wage theft coordinator shall order them paid. In addition, the wage theft coordinator may order penalties consistent with this Code to be paid to the complainant. Each week in which any wages are unpaid is a separate violation.
(d) Payments in full must be made within sixty (60) days of the date of the order. The wage theft coordinator may allow a reasonable payment plan, not to exceed six (6) months in length, to be entered into by the parties upon good cause shown.
(e) If full payment is not made within the time periods contemplated in subsections (c) or (d), the wage theft coordinator shall file a petition in a court of competent jurisdiction for a judgment in the amount of the remaining unpaid balance. Additionally, the wage theft coordinator shall periodically publish a list of the employers with current unpaid balances, and the amount of the unpaid balance.
(f) A final decision by the wage theft coordinator may be appealed by either party by filing a new lawsuit in any court of competent jurisdiction within 30 days of the wage theft coordinator’s decision. The determination of the wage theft coordinator as well as the complaint, answer, investigatory notes, and documents received shall be made available to any party for use in a subsequent lawsuit.
An employer shall not take retaliatory personnel action or discriminate against an employee because the employee has exercised rights protected under this Chapter. The wage theft coordinator may keep a complainant’s name confidential until the validity of a complaint can be verified if the complainant alleges that there is a substantial risk of retaliation by the employer.
(1) An employee or an Authorized Organization may file an action under this Chapter in any court of competent jurisdiction. Upon a finding of a violation of this Chapter by the respondent employer, the court shall award the employee the unpaid wages due, costs, reasonable attorney’s fees, and penalties pursuant to this Chapter.
(2) If during the pendency of an adjudication by the wage theft coordinator, prior to the issuance of a final decision, a complainant employee or Authorized Organization brings a private action in their own right, whether under this Ordinance, state law, or federal law, in any state or federal court, seeking unpaid wages based upon the same facts and allegations as the complainant employee's complaint to the County, or affirmatively or by consent opts to participate in any such litigation, that complainant employee's complaint of wage theft to the wage theft coordinator shall be deemed withdrawn with respect to any respondent employer named as a defendant in such court action. This Section shall be interpreted narrowly so as to leave unaffected any cumulative rights which were not the subject of the complainant employee's complaint.
(3) Nothing in this Chapter or its implementing regulations shall be construed as to require a complaint to be filed with the wage theft coordinator before bringing an action in court or before any other governmental agency.
In an action brought under this Chapter, two or more respondents may be held as jointly and severally liable for any amount payable to the complainant or the City, or both; however, the total amount the complainant or the City may receive from jointly and severally liable respondents shall not exceed the total amount for which respondents are jointly and severally liable.
§ 9-4307. Penalties for Wage Theft.
Penalties for each violation of this Chapter, where no good faith contest of the wages owed exists, may be imposed to the extent allowed by the Home Rule Act, 53 P.S. § 13131. The maximum allowable penalties may be imposed if the violation is wanton and willful.
§ 9-4308. Other Penalties and Licensing Actions.
(a) Pennsylvania Wage Payment and Collection Law, Act of July 14, 1961, P.L. 637, No. 329, as amended, the Pennsylvania Minimum Wage Act, Act of Jan. 17, 1968, P.L. 11, No. 5, as amended, or any other federal or state law regulating the payment of wages.
(b) Any violation of this Chapter.
(2) Any license or permit issued by the City, its boards or commissions, may be revoked or suspended if the applicant, licensee or permittee is a person who was subject to a final judgment or other decision for violation of any of the laws set forth in subsection (1) above within 3 years prior to the effective date of this Ordinance, and the judgment was not satisfied within the lawful period for doing same, or the expiration of the period for filing an appeal; or if an appeal is made, the date of the final resolution of that appeal and any subsequent appeal resulting in a final administrative or judicial affirmation of violation of any of the laws set forth in subsection (1) above.
(3) The period of non-issuance, revocation or non-renewal shall be 1 year, and the licensee or permittee or the person who is the principal of a license or permit shall not again be licensed or permitted in any other manner during such period.
(4) Appeals of license suspensions, revocations or denials pursuant to this Chapter are governed by Section 9-103 of this Title, and any other rules and regulations established by the City.
(5) An applicant for a commercial activity license or any other license or permit related to a business enterprise, shall be provided with a copy of this Chapter. All applicants shall certify that the applicant has not been found guilty, liable or responsible, in any judicial or adinistrative proceeding, of committing or attempting to commit a violation of any of the laws set forth in subsection (1) above within the past three (3) years. This provision shall apply to all persons or entities whose final administrative decision or adjudication or judicial judgment or conviction was entered on or after the effective date of this Chapter, with the exception of judgments that remain unsatisfied as set forth in subsection (2) above.
(6) Application of this Ordinance is subject to applicable state or federal laws.
§ 9-4309. Notice and Posting.
(1) Employers shall give notice that employees are entitled to file complaints for unpaid wages under this Chapter; that retaliation against employees who file complaints under this Chapter is prohibited and that each employee has the right to file a complaint or bring a civil action if the employer fails to pay all wages earned by the employee. This information shall also be included in any employee handbooks that are distributed to employees.
(2) Employers shall comply with this Section by either (a) supplying each of their employees with a notice in English and in any language that is the first language spoken by at least 5% of the employer's workforce that contains the information required in subsection (1); or (b) displaying a poster in a conspicuous and accessible place in each establishment where such employees are employed which contains in English and in any language that is the first language spoken by at least 5% of the employer's workforce, all information required under subsection (1).
(3) The wage theft coordinator shall create and make available to employers posters that contain the information required under subsection (1) for their use in complying with this subsection.
(4) An employer who willfully violates the notice and posting requirements of this Section shall be subject to a civil fine in an amount not to exceed $100 for each separate offense.
This Chapter shall take effect July 1, 2016.


MICHAEL PIERCE, MICHELLE PIERCE, Plaintiffs – Appellants, v. CLAYTON COUNTY, GEORGIA, RANDY DUANE BRASHEARS, Individually and in his official capacity as Detective employed by Clayton County, MICHAEL J. REGISTER, Individually and in his official capacity as Police Chief of Clayton County, ROBBIE FREDERICK, Individually and in his official capacity as Property Crimes Unit Supervisor of Clayton County Police Department, Defendants – Appellees, GRANT KIDD, Individually and in his official capacity as an Officer employed by Clayton County, Defendant.
Before MARCUS, JORDAN, and JILL PRYOR, Circuit Judges.
Because we write for the parties, we assume their familiarity with the underlying record and recite only what is necessary to resolve this appeal.
According to their complaint, on July 23, 2015, the Pierces purchased a 2014 Toyota Corolla at an auction from Public Storage, receiving an auction sale receipt and certification of public sale. The following day, a tow truck driver sent by the Pierces to retrieve the car ran the vehicle identification number and contacted the Pierces to tell them that the vehicle was listed as stolen. The Pierces contacted the authorities. A Clayton County Police Department officer took possession of the vehicle, which was towed to the Tara Wrecker impound lot, and told the Pierces that there was a hold on the vehicle.
According to the Pierces, Randy Brashears, a detective for the Clayton County Police Department, removed the vehicle from the list of stolen vehicles. The Pierces then contacted Tara Wrecker to notify the impound lot of their intent to place a lien on the vehicle. Tara Wrecker informed them that the vehicle was no longer listed as stolen. Mrs. Pierce went to the Clayton County Police Department with this information and her documents. The records clerk checked the databases and determined there was no longer a hold on the vehicle. The vehicle was released from Tara Wrecker and towed to the Pierces’ place of business.
The Pierces obtained a Certificate of Inspection from the Griffin Police Department, in which a police officer swore that the vehicle was not listed as stolen. The Pierces registered the vehicle, paid for tax and tag, had the title bonded, purchased insurance, and began making improvements to the vehicle.
On August 6, 2015, the Pierces spoke with Detective Brashears to inquire about recovering money they had spent on the vehicle. He became angry, told them to call Captain Brody, and hung up the phone. Captain Brody stated that he would speak with a supervisor and call them back.
At some point, Detective Brashears obtained arrest warrants for Mr. Pierce for theft by taking and for Mrs. Pierce for theft by taking and forgery. The Pierces were arrested on August 6, 2015, the same day they had inquired about recovering money they spent, and remained in custody for two days. They allege that the day after they were released, they were contacted by Clayton County Police Officer Grant Kidd, who offered to have their charges administratively dismissed in exchange for payment of a bribe. In January of 2016, all charges against the Pierces were administratively dismissed because the vehicle was legally purchased at auction and the Department had removed a hold on the vehicle. Officer Kidd was later indicted for soliciting a bribe to dismiss the pending criminal charges.
The Pierces asserted claims under 42 U.S.C. § 1983 and Georgia state law against Clayton County, Detective Brashears, Officer Kidd, Michael Register, Clayton County’s Police Chief, and Robbie Frederick, Clayton County’s Police Department Property Crimes Unit Supervisor. The district court dismissed a number of those claims, and denied the Pierces’ motion for leave to amend to add a Monell 3 claim for deliberate indifference with respect to the Clayton County Police Department’s hiring of Officer Kidd and a cause of action for conversion under Georgia law, determining that both of those claims would be futile. The Pierces appeal the district court’s dismissal of their § 1983 malicious prosecution claim, civil conspiracy claim, and claim for attorneys’ fees and damages against Detective Brashears, as well as the district court’s denial of their motion to amend.
We review de novo the district court’s grant of a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). See Leib v. Hillsborough Cty. Pub. Transp. Comm’n, 558 F.3d 1301, 1305 (11th Cir. 2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although a court is required to accept the allegations in a complaint as true, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).
The Pierces argue that the district court improperly dismissed their claim for malicious prosecution against Detective Brashears. “To establish a federal malicious prosecution claim under § 1983, the plaintiff must prove a violation of his Fourth Amendment right to be free from unreasonable seizures in addition to the elements of the common law tort of malicious prosecution.” Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003) (emphasis in original). “[F]or purposes of a § 1983 malicious prosecution claim, the constituent elements of the common law tort of malicious prosecution included: (1) a criminal prosecution instituted or continued by the present defendant; (2) with malice and without probable cause; (3) that terminated in the plaintiff accused’s favor; and (4) caused damage to the plaintiff accused.” Id. at 881–82. These are the same elements required under Georgia law for the tort of malicious prosecution. See Kelly v. Curtis, 21 F.3d 1544, 1556 (11th Cir. 1994).
“Probable cause to arrest exists where the facts and circumstances within the collective knowledge of the law enforcement officials, of which they had reasonably trustworthy information, are sufficient to cause a person of reasonable caution to believe that an offense has been or is being committed.” Wilson v. Attaway, 757 F.2d 1227, 1235 (11th Cir. 1985) (internal citation and quotation marks omitted). “Probable cause issues are to be decided on an objective basis by courts without regard to the subjective beliefs of law enforcement officers, whatever those beliefs may have been.” Craig v. Singletary, 127 F.3d 1030, 1042 (11th Cir. 1997). “No officer has a duty to prove every element of a crime before making an arrest.” Jordan v. Mosley, 487 F.3d 1350, 1355 (11th Cir. 2007).
The Pierces have adequately alleged the elements of a malicious prosecution claim. They have asserted that they were arrested under an arrest warrant, that the charges were ultimately administratively discharged, and that they suffered damages as a result. Taking their allegations as true, we cannot conclude at this stage of the proceedings that Detective Brashears had probable cause based on the information available to him. According to allegations, Detective Brashears himself removed the vehicle from the stolen vehicle list in either the Georgia Crime Information Center’s records, or the National Crime Information Center’s records, or both. The amended complaint also states that Detective Brashears informed the Pierces that the police had “made a mistake” in releasing the vehicle and that there had been a “clerical error.” See Am. Compl., D.E. 14 ¶ 25.
The Pierces further alleged that while meeting with Detective Brashears, they showed him all of their paperwork and “expressly advised” him of the course of events leading to the release of the vehicle. See id. ¶ 27. Additionally, the Pierces asserted that Detective Brashears perjured himself by making misrepresentations and omissions in the arrest warrant affidavits. Id. ¶ 35, 36. According to the amended complaint, Detective Brashears knew that, inter alia, the Pierces had not removed the vehicle unlawfully, that the documents submitted by the Pierces attesting to the valid purchase of the vehicle at the auction were not fraudulent, and that Mrs. Pierce had not provided fraudulent information to the police department. See id. ¶ 35. Likewise, according to the amended complaint, Detective Brashears intentionally and wrongfully failed to disclose, in the application for a warrant, his (or the Police Department’s) responsibility for the clerical error releasing the hold on the vehicle and the numerous actions the Pierces allegedly took to verify the status of the vehicle. See id. ¶ 36.
Moreover, given these facts as alleged—that Detective Brashears himself had removed the vehicle from the stolen vehicle registry and that he was fully apprised of the Pierces’ paperwork and what had transpired—the complaint sufficiently pleads that Detective Brashears acted with malice in seeking the arrest warrants for the Pierces.
Detective Brashears argues that, even if he did not have probable cause, he is entitled to qualified immunity because he had “arguable” probable cause and did not violate clearly established law. “Qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Kingsland v. City of Miami, 382 F.3d 1220, 1231 (11th Cir. 2004). “Plainly, an arrest without probable cause violates the right to be free from an unreasonable search under the Fourth Amendment.” Id. at 1232. Moreover, “falsifying facts to establish probable cause is patently unconstitutional and has been so long before” the Pierces’ arrest. Id. Viewing the facts in the light most favorable to the Pierces, they have sufficiently alleged a violation of their clearly established Fourth Amendment rights.
“Nevertheless, officers who make an arrest without probable cause are entitled to qualified immunity if there was arguable probable cause for the arrest.” Id. “Arguable probable cause exists when an officer reasonably could have believed that probable cause existed, in light of the information the officer possessed.” Durruthy v. Pastor, 351 F.3d 1080, 1089 (11th Cir. 2003) (internal quotation marks omitted). “[W]hat counts for qualified immunity purposes relating to probable cause to arrest is the information known to the defendant officers ․ at the time of their conduct, not the facts known to the plaintiff then or those known to a court later.” Jones v. Cannon, 174 F.3d 1271, 1283 n.4 (11th Cir. 1999)).
Taking the facts alleged in the Pierces’ complaint as true, however, we cannot say at this stage of the proceedings that Detective Brashears had even arguable probable cause for the Pierces’ arrest. The facts alleged by the Pierces support a conclusion that the arrest affidavit included recklessly or deliberately false statements that are material to a finding of arguable probable cause. “Without further factfinding, it is impracticable to conclude that arguable probable cause existed for [the Pierces’] arrest when it is unclear how much of the proffered evidence tending to support a finding of arguable probable cause was manufactured or misrepresented.” Kingsland, 382 F.3d at 1232. Accordingly, the Pierces’ claim for malicious prosecution against Detective Brashears may proceed.
Because the district court’s dismissal of the Pierces’ claims for civil conspiracy and for attorney’s fees and damages was based upon its dismissal of all claims against Detective Brashears, we remand for the district court to address those claims in the first instance.
We review the denial of a motion for leave to amend the complaint on the ground of futility de novo. See City of Miami v. Wells Fargo & Co., 801 F.3d 1258, 1265 (11th Cir. 2015). A proposed amendment is futile when the complaint as amended would not survive a Rule 12(b)(6) motion to dismiss. See Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999).
The Pierces argue that the district court improperly denied their motion for leave to amend to include a state law claim for conversion. We agree.
Georgia codified the common-law action of conversion at O.C.G.A. § 51-10-1. See Grant v. Newsome, 411 S.E.2d 796, 797 (Ga. Ct. App. 1991); Carter v. Butts Cty., Ga., 821 F.3d 1310, 1324 (11th Cir. 2016). This statute “authorizes the recovery of damages where a government official, without lawful authority, has temporarily deprived an individual of his or her property.” Grant, 411 S.E.2d at 798; Carter, 821 F.3d at 1324. Conversion consists of “an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.” Maryland Cas. Ins. Co. v. Welchel, 356 S.E.2d 877, 880 (Ga. 1987).
In stating a claim for conversion under Georgia law, a plaintiff must normally allege: “(1) title to the property or the right of possession, (2) actual possession in the other party, (3) demand for return of the property, and (4) refusal by the other party to return the property.” City of Atlanta v. Hotels.com, L.P., 775 S.E.2d 276, 279 (Ga. Ct. App. 2015). Georgia courts have recognized, however, that “demand and refusal are not required where a person comes into possession of the property unlawfully.” Carter, 821 F.3d at 1324 (citing Williams v. Nat’l Auto Sales, Inc., 651 S.E.2d 194, 197 (Ga. Ct. App. 2007)). Additionally, “it is not necessary that the defendant assert any right of ownership over the property” or that “the defendant appl[y] it to his own use.” Welchel, 356 S.E.2d at 261. “It is in law a conversion whether it be for his own or any other’s use․[and] it is sufficient if the defendant wrongfully assumes dominion over the property inconsistent with the owner’s right.” Id.
In our view, the district court applied too narrow a view of possession. The defendants make much of the allegation in the amended complaint that “Plaintiffs then surrendered possession of the vehicle to the Clayton County PD,” D.E. 14 ¶ 29 (emphasis added), arguing that this proves that the Department took possession of the vehicle, as opposed to Detective Brashears, and that the vehicle was given willingly, not taken illegally.
The defendants ignore, however, the allegation that it was Detective Brashears who effected the removal of the vehicle, purporting to act on behalf of and under the authority of the Clayton County Police Department to do so. If it is ultimately proven that Detective Brashears had no legal authority to effect that repossession, as the Pierces have adequately pled in their amended complaint, then the fact that he did not physically repossess the vehicle himself, but instead had the Police Department repossess it under his authority and direction, does not shield him from liability. Detective Brashears cannot lawfully do through the Police Department what he cannot lawfully do as a member of the Department (i.e., if Detective Brashears has no lawful authority to remove the vehicle, then he cannot hide behind the Department’s removal of the vehicle on his command, which itself presumes Detective Brashears’ authority to do so).
The defendants also ignore certain paragraphs of the amended complaint, which include a statement by Mrs. Pierce that “if ya’ll tell me to turn it over, I’ll turn it over,” and a statement by Detective Brashears saying “Good luck recovering any money from us.” Id. at ¶ 26, 28. In demanding that the Pierces turn the vehicle over to him, Detective Brashears had the weight, authority, and legitimacy of law enforcement on his side, and the Pierces were not required to physically resist turning the vehicle over to him. It is enough that they protested Brashears’ removal of the vehicle and attempted to prove their lawful ownership of the vehicle, see id. at ¶ 26, 27, and their “surrendering” the vehicle to the Clayton County Police Department does not foreclose their claim for conversion.
The district court also mistakenly applied the elements of conversion required when a defendant comes into possession of property lawfully (a demand by the plaintiff for return of the property, and a refusal to do so by defendant) without considering the requirements where the taking of the property is unlawful. See Williams, 651 S.E.2d at 196-97. The Pierces have pled facts sufficient for a finding that Detective Brashears had no legal authority to dispossess them of their vehicle (e.g., that Detective Brashears knew the Pierces had a legal right to possess the vehicle, that he removed the vehicle from the stolen vehicle registry himself, that he did not have probable cause to arrest the Pierces, etc.).
The defendants nevertheless argue that in order to satisfy the elements of conversion which apply when a defendant comes into possession of property unlawfully, a plaintiff must allege that the defendant “dispose[d] of the property without authority and retain[ed] the proceeds.” Williams, 651 S.E.2d at 197. The defendants rely on Williams, but the court in Williams was giving but one example (which applied in that particular case) as to why ‘demand and refusal’ is not required when a defendant comes into possession of property unlawfully. See id. The court did not in any way require these factors for all such situations (“a conversion may also be proved by showing․”), nor did the court hold that its two examples were the only ways to prove conversion (“[t]here are at least two avenues available to prove conversion”) (emphases added). Id. at 196, 197. Moreover, the requirement urged by the defendants would directly conflict with the principle established by the Georgia Supreme Court that “[i]t is unnecessary to show that the defendant applied [the property] to his own use.” See Welchel, 356 S.E.2d at 880. And it would lead to the nonsensical result that a defendant would be liable for conversion if he sold the property which he had unlawfully acquired, yet would not be liable as long as he kept the property for himself. Williams neither requires nor suggests such an interpretation.
Because the Pierces have pled facts sufficient to maintain a claim for conversion against Detective Brashears, the district court improperly denied their motion for leave to amend their complaint.
The Pierces also argue that the district court erred in determining that allowing them to bring a Monell claim for deliberate indifference with respect to the hiring of Detective Kidd would be futile. “Monell imposes liability on municipalities for deprivations of constitutional rights visited pursuant to municipal policy, whether that policy is officially promulgated or authorized by custom. The official policy or custom must be the moving force of the constitutional violation’ in order to establish liability of a government body under § 1983.” Gilmere v. City of Atlanta, Ga., 737 F.2d 894, 901 (11th Cir. 1984) (internal quotation marks and citation omitted). But the only claim remaining against Officer Kidd is a state law claim for intentional infliction of emotional distress. Because the Pierces have failed to adequately allege an underlying constitutional violation with respect to Officer Kidd, their Monell claim against Clayton County and Police Chief Michael Register fails.
The district court did not err in denying the Pierces’ motion for leave to add a Monell claim for intentional infliction of emotional distress, but it erred in denying leave to amend regarding the Pierces’ conversion claim. In addition, the Pierces have adequately alleged a § 1983 claim for malicious prosecution, and Detective Brashears is not entitled to qualified immunity at this early stage of the case. Accordingly, we affirm in part and reverse the district court’s dismissal of the Pierces’ claim for malicious prosecution against Detective Brashears and its denial of leave to amend to add a state law claim for conversion, and remand for further proceedings consistent with this opinion.
1. The district court’s order did not dispose of all of the Pierces’ claims. There remains a state law claim of intentional infliction of emotional distress against Officer Grant Kidd. The district court, however, certified its order as a final judgment under Fed. R. Civ. P. 54(b), concluding that there was “no just reason to delay” entry of final judgment until the claims against Officer Kidd were resolved. We conclude that the district court properly certified its order for immediate review under Rule 54(b).
2. The vehicle was ultimately sold at an auction in December of 2015.
3. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).
4. To the extent that the district court read Georgia law as requiring a defendant to still be in possession of the property at the time of the complaint or lawsuit, it erred. See O.C.G.A. § 51-10-1 (“The owner of personalty is entitled to its possession. Any deprivation of such possession is a tort for which an action lies.”) (emphasis added); Romano v. Ga. Dept. of Corrections, 693 S.E.2d 521, 524 (Ga. Ct. App. 2010) (“OCGA § 51-10-1 authorizes recovery of damages when a government official, without lawful authority, deprives an individual of his or her property on even a temporary basis.”) (emphasis added).
5. Although unclear in their original motion, the Pierces clarify on appeal that they intended to assert a claim of conversion only against Detective Brashears.