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In 1951, the Shoshone Tribe sought compensation for the loss of aboriginal title to lands in several Western States. The Indian Claims Commission (Commission) entered an interlocutory order holding that aboriginal title had been extinguished and later awarded $26 million in compensation. The Court of Claims affirmed, and the award was certified to the General Accounting Office. Pursuant to 31 U.S.C. 724a (1976 ed., Supp. V), this certification automatically appropriated the amount of the award, which was then deposited for the Tribe in an interest-bearing trust account in the United States Treasury. The Secretary of the Interior is required by statute, after consulting with the Tribe, to submit to Congress a plan for distribution of the fund, but has not yet done so, owing to the Tribe's refusal to cooperate. Subsequently, the United States brought a trespass action in Federal District Court against respondent Tribe members, alleging that in grazing livestock without a permit on land involved in the prior Commission proceeding respondents were violating certain regulations. Respondents claimed that they have aboriginal title to the land and that thus the Government was precluded from requiring grazing permits. The District Court held that aboriginal title had been extinguished when the Commission's final award was certified for payment. The Court of Appeals reversed, holding that "payment" had not occurred within the meaning of 22(a) of the Indian Claims Commission Act, which provided that "payment of any claim [of an Indian tribe], after its determination in accordance with this [Act], shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy." The court reasoned that until a plan of distribution of the fund in question is adopted, there remain significant blocks in the way of delivery to the payee and that thus the "ordinary meaning" of payment was not satisfied.
"Payment" occurred under 22(a) when the funds in question were placed by the United States into an account in the Treasury for the Tribe. Pp. 44-50.
(a) To hold that payment under 22(a) does not occur until a final plan of distribution has been approved by Congress would frustrate the Indian Claims Commission Act's purpose to dispose of Indian claims with [470 U.S. 39, 40] finality and would also conflict with the Act's purpose of transferring from Congress to the Commission the responsibility for determining the merits of Indian claims. Pp. 45-47.
(b) To construe the word "payment" as the Court of Appeals did gives the word a markedly different meaning than it has under the general common-law rule, relied upon in Seminole Nation v. United States, 316 U.S. 286 , that a debtor's payment to a fiduciary for the creditor's benefit satisfies the debt. Here, the Commission ordered the Government qua judgment debtor to pay $26 million to the Government qua trustee for the Tribe as beneficiary. Once the money was deposited into the trust account, payment was effected. Pp. 47-50.
Assistant Attorney General McConnell argued the cause for the United States. On the briefs were Solicitor General Lee, Assistant Attorney General Habicht, Joshua I. Schwartz, Jacques B. Gelin, Dean K. Dunsmore, and Robert L. Klarquist.
[ Footnote * ] William T. Finley, Jr., filed a brief for the American Land Title Association as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the Indian Law Resource Center by Steven M. Tullberg and Robert T. Coulter; and for the Western Shoshone National Council by Thomas E. Luebben and Richard W. Hughes.
This case is an episode in a longstanding conflict between the United States and the Shoshone Tribe over title to lands in the western United States. In 1951 certain members of the Shoshone Tribe sought compensation for the loss of aboriginal title 3 to lands located in California, Colorado, Idaho, Nevada, Utah, and Wyoming. 4 Eleven years later, the Indian Claims Commission entered an interlocutory order holding that the aboriginal title of the Western Shoshone had been extinguished in the latter part of the 19th century, [470 U.S. 39, 42] Shoshone Tribe v. United States, 11 Ind. Cl. Comm'n 387, 416 (1962), and later awarded the Western Shoshone in excess of $26 million in compensation. Western Shoshone Identifiable Group v. United States, 40 Ind. Cl. Comm'n 318 (1977). The Court of Claims affirmed this award. 5 Temoak Band of Western Shoshone Indians v. United States, 219 Ct. Cl. 346, 593 F.2d 994 (1979). On December 6, 1979, the Clerk of the Court of Claims certified the Commission's award to the General Accounting Office. Pursuant to 31 U.S.C. 724a (1976 ed., Supp. V), this certification automatically appropriated the amount of the award and deposited it for the Tribe in an interest-bearing trust account in the Treasury of the United States.
Under 25 U.S.C. 1402 (a) 6 and 1403(a), 7 the Secretary of the Interior is required, after consulting with the Tribe, to submit to Congress within a specified period of time a plan for the distribution of the fund. In this case, the Secretary has yet to submit a plan of distribution of the $26 million owing to the refusal of the Western Shoshone to cooperate in [470 U.S. 39, 43] devising the plan. The fund apparently has now grown to $43 million. Reply Brief for United States 20.
In 1974, the United States brought an action in trespass against two sisters, Mary and Carrie Dann, members of an autonomous band 8 of the Western Shoshone, alleging that the Danns, in grazing livestock without a permit from the United States, were acting in violation of regulations issued by the Secretary of the Interior under the authority of the Taylor Grazing Act, 43 U.S.C. 315b. 9 The 5, 120 acres at issue in the suit are located in the northeast corner of Nevada. In response to the United States' suit, the Danns claimed that the land has been in the possession of their family from time immemorial and that their aboriginal title to the land precluded the Government from requiring grazing permits. The United States District Court for the District of Nevada rejected the Danns' argument and ruled that aboriginal title had been extinguished by the collateral-estoppel effect of the Indian Claims Commission's judgment in 1962. United States v. Mary and Carrie Dann, Civil No. R-74-60 (Jan. 5, 1977). The Court of Appeals for the Ninth Circuit reversed and remanded, however, on the ground that "[w]hatever may have been the implicit assumptions of both the United States and the Shoshone Tribes during the [470 U.S. 39, 44] litigation . . ., the extinguishment question was not necessarily in issue, it was not actually litigated, and it has not been decided." United States v. Dann, 572 F.2d 222, 226-227 (1978).
On remand, the District Court held that aboriginal title was extinguished when the final award of the Indian Claims Commission was certified for payment on December 6, 1979. Civil No. R-74-60 (Apr. 25, 1980). On appeal, the Government defended the judgment of the District Court on the ground that the "full discharge" language of 22(a) of the Indian Claims Commission Act, see n. 2, supra, precluded the Danns from raising the defense of aboriginal title. Although Congress had not yet approved a plan for the distribution of the funds to the Western Shoshone, the United States maintained that the requirement of "payment" under 22(a) was satisfied by the congressional appropriation of the $26 million award into the Treasury account. The Danns argued that until Congress approved a plan for the distribution of the money to the Tribe, "payment" was not satisfied.
The Court of Appeals held that "payment" had not occurred within the meaning of 22 (a) and reversed the District Court. 706 F.2d 919, 926 (1983). The court reasoned that until a plan of distribution was adopted by the Congress, there remained "significant legal blocks in the way of delivery to the payee," and thus the "ordinary meaning" of payment was not satisfied. We granted certiorari to resolve the question of whether the certification of the award and appropriation under 724a constitutes payment under 22(a). 467 U.S. 1214 (1984). We reverse.
The legislative purposes of the Indian Claims Commission Act and the principles of payment under the common law of trust as they have been applied to the context of relations between native American communities and the United States require that we hold that "payment" occurs under 22(a) when funds are placed by the United States into an account in [470 U.S. 39, 45] the Treasury of the United States for the Tribe pursuant to 31 U.S.C. 724a (1976 ed., Supp. V).
The Indian Claims Commission Act had two purposes. The "chief purpose of the [Act was] to dispose of the Indian claims problem with finality." H. R. Rep. No. 1466, 79th Cong., 1st Sess., 10 (1945). This purpose was effected by the language of 22(a): "When the report of the Commission determining any claimant to be entitled to recover has been filed with Congress, such report shall have the effect of a final judgment of the Court of Claims . . . ." 10 Section 22(a) also states that the "payment of any claim . . . shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy." To hold, as the court below has, that payment does not occur until a final plan of distribution has been approved by Congress would frustrate the purpose of finality by postponing the preclusive effects of 22(a) while subjecting the United States to continued liability for claims and demands that "touch" the matter previously litigated and resolved by the Indian Claims Commission.
". . . [T]he very purpose of this act, the reason we are coming to Congress, is that we are being harassed constantly by various individual pieces of legislation. I do not want to act on separate legislation and Congress is being told to act on those bills, without knowing the facts, and the purpose of this legislation will be to dispose of all those routine claims and let the commission decide what the obligation is of this Government to the Indians; and, acting upon those findings made by the Commission, Congress will appropriate the money." Hearings on H. R. 1198 and H. R. 1341 before the House Committee on Indian Affairs, 79th Cong., 1st Sess., 68 (1945).
During the floor debate on the Act, Congressman Jackson observed that the House was acting in response to a study by the Brookings Institution that had concluded that "there ought to be a prompt and final settlement of all claims between the Government and its Indian citizens, and that the best way to accomplish this purpose is to set up temporarily an Indian Claims Commission which will sift all these claims, subject to appropriate judicial review, and bring them to a conclusion once and for all." 92 Cong. Rec. 5312 (1946).
"The bill would provide that when the report of the Commission determining any claimant to be entitled to recover has been filed with the Congress, such report would have the effect of a final judgment to be paid in like manner as are judgments of the Court of Claims. This provision would make the Commission virtually a court with the power to determine claims based both upon legal and moral grounds rather than a fact finding body as an aid to Congress. In view of the vague basis upon which many of the claims presented to the Commission would be predicated, and the extremely novel [470 U.S. 39, 47] character of the functions delegated to the Commission, the question is raised of whether or not the recognition of the claims should not rest finally with Congress. The provision making the findings of the Commission binding upon Congress would constitute a surrender by Congress of its very necessary prerogative to sift and control this unusual type of claim against the Government." Id., at 5311 (letter to Congressman John Cochran in response to his request for the Attorney General's "views with respect to the bill (H. R. 4497) to create a Indian Claims Commission." Id., at 5310).
Despite this warning, the House left the language of the Act unchanged. The Senate, however, deleted from the House bill the language that Attorney General Clark asserted would give the decisions of the Indian Claims Commission the effect of a final judgment binding upon Congress. The Conference adopted the House version "in order to make perfectly clear the intention of both houses that the determinations of the Commission should, unless reversed [by the Court of Claims], have the same finality as judgments of the Court of Claims." H. R. Conf. Rep. No. 2693, 79th Cong., 2d Sess., 8 (1946). As enacted, the Indian Claims Commission Act explicitly incorporated this standard of finality in 22(a).
The court below justified its decision on the ground that in making "payment" turn on the submission and approval of a final plan of distribution, Congress would have one last opportunity to review the merits of claims litigated before the Indian Claims Commission. 706 F.2d, at 927. This justification for delay obviously conflicts with the purpose of relieving Congress of the burden of having to resolve these claims.
Aside from its departure from the purposes of the Indian Claims Commission Act, the Court of Appeals' interpretation is in conflict with the accepted legal uses of the word "payment" - uses we assume Congress intended to adopt when it [470 U.S. 39, 48] enacted 22(a). To accept the argument of the Court of Appeals would give the word "payment" a meaning that differs markedly from its common-law meaning, which has long been applied by this Court to the relations between native American tribes and the United States.
The common law recognizes that payment may be satisfied despite the absence of actual possession of the funds by the creditor. Funds transferred from a debtor to an agent or trustee of the creditor constitute payment, and it is of no consequence that the creditor refuses to accept the funds from the agent or the agent misappropriates the funds. 11 The rationale for this is that fiduciary obligations and the rules of agency so bind the trustee or agent to the creditor (i. e., the beneficiary or principal) as to confer effective control of the funds upon the creditor.
The Court has applied these principles to relations between native American communities and the United States. In Seminole Nation v. United States, 316 U.S. 286 (1942), the United States was obligated by treaty to pay annual annuities to members of the Seminole Nation. Instead, the Government transferred the money to the Seminole General Council. Members of the Tribe argued that because the [470 U.S. 39, 49] Seminole General Council had misappropriated the money, the Government had not satisfied its obligation to pay the individual members of the Tribe. In disposing of the case, the Court relied upon the rule that "a third party who pays money to a fiduciary for the benefit of the beneficiary, with knowledge that the fiduciary intends to misappropriate the money or otherwise be false to his trust, is a participant in the breach of trust and liable therefor to the beneficiary." Id., at 296. The Court's holding was based on its recognition of the traditional rule that a debtor's payment to a fiduciary of the creditor satisfies the debt. 12 Absent actual knowledge of the fraudulent intent of the trustee - or some other recognized exception to the general rule - the Government's payment to the Council would have discharged its treaty obligations. Ibid. The order remanding the case for purposes of determining whether the Government had fraudulent intent, id., at 300, would have made sense only if the Court believed that, absent such knowledge, the Government's treaty obligations were discharged.
The Court's reliance on the general rule in Seminole Nation is authority for our holding that the United States has made "payment" under 22(a). The final award of the Indian Claims Commission placed the Government in a dual role with respect to the Tribe: the Government was at once a judgment debtor, owing $26 million to the Tribe, and a trustee for the Tribe responsible for ensuring that the money was put to productive use and ultimately distributed in a [470 U.S. 39, 50] manner consistent with the best interests of the Tribe. 13 In short, the Indian Claims Commission ordered the Government qua judgment debtor to pay $26 million to the Government qua trustee for the Tribe as the beneficiary. Once the money was deposited into the trust account, payment was effected.
The Danns also claim to possess individual as well as tribal aboriginal rights and that because only the latter were before the Indian Claims Commission, the "final discharge" of 22 (a) does not bar the Danns from raising individual aboriginal title as a defense in this action. Though we have recognized that individual aboriginal rights may exist in certain contexts, 14 this contention has not been addressed by the lower courts and, if open, should first be addressed below. We express no opinion as to its merits.
"There are appropriated, out of any money in the Treasury not otherwise appropriated, such sums as may be necessary for the payment, not otherwise provided for, as certified by the Comptroller General, of final judgments, awards, and compromise settlements, which are payable in accordance with the terms of . . . awards rendered by the Indian Claims Commission . . . ."
"When the report of the Commission determining any claimant to be entitled to recover has been filed with Congress, such report shall have the effect of a final judgment of the Court of Claims, and there is authorized to be appropriated such sums as are necessary to pay the final determination of the Commission.
The Indian Claims Commission was terminated on September 30, 1978, pursuant to 25 U.S.C. 70v (1976 ed.).
[ Footnote 3 ] For a discussion of aboriginal title, see Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667 (1974); Johnson v. McIntosh, 8 Wheat. 543, 573-574 (1823); Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831); F. Cohen, Handbook of Federal Indian Law 486-493 (1982). On the theoretical origins of aboriginal rights, see J. Scott, The Spanish Origin of International Law: Francisco de Vitoria and His Law of Nations (1934); Cohen, Spanish Origin of Indian Rights, 31 Geo. L. J. 1 (1942); Cohen, Original Indian Title, 32 Minn. L. Rev. 28 (1947).
[ Footnote 4 ] Section 2 of the Indian Claims Commission Act, 60 Stat. 1050, as amended, 25 U.S.C. 70a (1976 ed.), authorized claims to be brought on behalf of "any Indian tribe, band, or other identifiable group of American Indians" for "claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant . . . ."
[ Footnote 5 ] Section 20(b) of the Indian Claims Commission Act, 60 Stat. 1054, as amended, 25 U.S.C. 70s(b) (1976 ed.), provided for an appeal to the Court of Claims from any "final determination" of the Indian Claims Commission.
"Within one year after appropriation of funds to pay a judgment of the Indian Claims Commission . . ., the Secretary of the Interior shall prepare and submit to Congress a plan for the use and distribution of the funds."
"(2) hold a hearing of record, after appropriate public notice, to obtain the testimony of leaders and members of the Indian tribe which may receive any portion, or be affected by the use or distribution, of such funds . . . ."
[ Footnote 8 ] See Steward, The Foundations of Basin-Plateau Shoshonean Society, in Languages and Cultures of Western North America 113, 115 (E. Swanson ed. 1970) ("`[B]and' can have no precise definition. Although it generally signifies cohesion and interaction between families that constitute a group of permanent membership, it may range in size from a few families that are closely related to many families which include some not related, or it may be structured on unilineal or bilateral principles, and interaction between the families may take many forms").
[ Footnote 10 ] On the finality of judgments of the Court of Claims, see 28 U.S.C. 2519 (1976 ed.) ("A final judgment of the Court of Claims against any plaintiff shall forever bar any further claim, suit, or demand against the United States arising out of the matters involved in the case or controversy"); United States v. O'Grady, 22 Wall. 641, 647 (1875); W. Cowen, P. Nichols, & M. Bennett, The United States Court of Claims, Part II, pp. 22-25 (1978).
[ Footnote 11 ] See G. Bogert, Law of Trusts and Trustees 902 (2d rev. ed. 1982) (footnotes omitted) ("[I]t is now universally the law that the purchaser of trust property from the trustee . . . may pay the purchase money to the trustee without making any inquiry as to the use to which the trustee intends to put the money. The purchaser, in the absence of notice to the contrary, may safely assume that the price will be applied in an appropriate manner as trust property"); 4 A. Scott, Law of Trusts 321 (3d ed. 1967); Stone, Some Legal Problems Involved in the Transmission of Funds, 21 Colum. L. Rev. 507 (1921). See also, the Uniform Fiduciaries Act 2, 7A U. L. A. 135 (1978) ("A person who in good faith pays or transfers to a fiduciary any money or other property which the fiduciary as such is authorized to receive, is not responsible for the proper application thereof by the fiduciary; and any right or title acquired from the fiduciary in consideration of such payment or transfer is not invalid in consequence of a misapplication by the fiduciary").
[ Footnote 12 ] The Court's acknowledgment of this general rule is apparent from its citation to 4 G. Bogert, Law of Trusts and Trustees 901 (1935), which stated: "It is now the law that the purchaser of trust property from the trustee, where the trustee has a power to sell and has properly executed his power, may pay the purchase money to the trustee without making any inquiry as to the use to which the trustee intends to put the money. The purchaser may safely assume that the price will be applied in an appropriate manner as trust property, unless special circumstances come to his notice indicating the opposite."
[ Footnote 13 ] In suggesting that significant obstacles to the distribution of the money remain despite the transfer of the fund into a trust account, the Court of Appeals failed to recognize the legal strictures ensuring that the money will be applied to the benefit of the Tribe. We have, for example, held that the United States, as a fiduciary, is obligated to make the funds productive and is fully accountable if those funds are converted or mismanaged. See, e. g., United States v. Mitchell, 463 U.S. 206, 226 (1983); United States v. Sioux Nation of Indians, 448 U.S. 371, 408 -409 (1980); United States v. Shoshone Tribe, 304 U.S. 111, 115 -116 (1938); Shoshone Tribe v. United States, 299 U.S. 476, 497 (1937).

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It was not a question of whether ViroPharma Incorporated (“ViroPharma”) would sue FDA in connection with the approval of ANDAs for generic versions of the company’s antibiotic drug of last resort, VANCOCIN (vancomycin HCl) Capsules, but when. In addition to a pending FOIA lawsuit (see our previous post here), ViroPharma has made voluminous submissions to FDA challenging the Agency’s draft bioequivalence recommendation for generic VANCOCIN, which provides that bioequivalence may be established based on comparative dissolution (i.e., in vitro information). Last Friday we got the answer to the outstanding “when” question when ViroPharma sued FDA in the U.S. District Court for the District of Columbia.
ViroPharma’s Complaint alleges that FDA violated the Administrative Procedure Act (“APA”) when the Agency failed to engage in notice-and-comment rulemaking “before effectively amending its [ANDA] regulations to permit a waiver of the in vivo bioequivalence requirement based on 21 C.F.R. § 320.24 even when none of the waiver criteria of 21 C.F .R. § 320.22 are satisfied.” ViroPharma requests declaratory relief from the court, including “that the plain reading of FDA’s regulations requires an ANDA applicant seeking a waiver of the in vivo bioequivalence testing requirement to first meet one of the criteria set forth in 21 C.F.R. § 320.22,” and that a previous statement from FDA in a May 2008 response to a November 2007 citizen petition concerning generic PRECOSE (acarbose) – that 21 C.F.R. § 320.24 provides an independent basis for waiving the in vivo testing requirement even when none of the criteria of 21 C.F.R. § 320.22 is satisfied – constitutes an amendment to FDA’s ANDA bioequivalence regulations.
Under the FDC Act, as amended by the 2003 Medicare Modernization Act, for a drug, like vancomycin HCl, “that is not intended to be absorbed into the bloodstream, [FDA] may establish alternative, scientifically valid methods to show bioequivalence if the alternative methods are expected to detect a significant difference between the drug and the listed drug in safety and therapeutic effect” (FDC Act § 505(j)(8)(C)). Although ANDAs often include the results of both in vivo and in vitro studies demonstrating bioequivalence to a reference listed drug, FDA’s ANDA regulations at 21 C.F.R. § 320.21 and § 320.22 provide that bioequivalence can be demonstrated through in vitro testing and that in vivo testing can be waived. FDA’s regulations at 21 C.F.R. § 320.24 describe the types of in vivo and in vitro methods to establish bioequivalence.
[V]ancomycin capsules are not an injectable, topical or oral solution, or inhalation drug product (§ 320.22(b)); vancomycin is not a DESI drug (§ 320.22(c)); vancomycin capsule ANDAs do not seek approval of a different strength of a drug product that has already been approved (§ 320.22(d)(2); in vitro bioequivalence methods for vancomycin have not, to ViroPharma's knowledge, been shown to be correlated with in vivo data (§ 320.22(d)(3)); vancomycin capsule ANDAs do not seek approval for a reformulation of an already-approved product (§ 320.22(d)(4)); nor is there a need to approve vancomycin capsule ANDAs to ensure the continued marketing of a medically important drug product because Vancocin is readily available in the market (§ 320.22(e)).
In citing 21 C.F.R. § 320.24 in the Final Product Specific Bioequivalence Guidance as the sole regulatory basis for its decision to waive in vivo testing, FDA plainly ignored both the plain text of its own regulations and ViroPharma’s submissions explaining that one of the criteria of § 320.22 must first be satisfied in order for FDA to waive the in vivo bioequivalence testing requirement of § 320.21, and affirmed the rationale it enunciated in its Acarbose Bioequivalence Decision.
FDA’s alleged amendment to its ANDA bioequivalence regulations “increase[s] the likelihood of approvals for generic vancomycin ANDAs” – for which there are reportedly 11 ANDAs pending.


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DEWITT STERN GROUP, INC., Plaintiff-Appellant, v. Richard EISENBERG and Arthur J. Gallagher Risk Management Services, Inc. Defendants-Appellees.
PRESENT: PETER W. HALL, SUSAN L. CARNEY, Circuit Judges. JOHN G. KOELTL,* District Judge. For Appellant: Peter J. Biging, Goldberg Segalla LLP (Stewart G. Milch, on the brief), Buffalo and New York, New York. For Appellees: Carmen J. Dimaria, Ogletree, Deakins, Nash, Smoak, & Stewart, P.C. (Aaron Warshaw and Nicole A. Welch, on the brief), New York, New York.
Appellant DeWitt Stern Group, Inc. (“DeWitt”) appeals the district court’s decision granting Appellees Richard Eisenberg’s (“Eisenberg”) and Arthur J. Gallagher Risk Management Services, Inc.’s (“AJG”) (collectively, “Defendants”) motion for summary judgment. DeWitt claims that it purchased Eisenberg’s book of business when it agreed to employ Eisenberg in 2007. DeWitt further claims that Eisenberg, with the help of AJG, violated the terms of its 2012 Employment Agreement and committed several torts by soliciting DeWitt’s clients on AJG’s behalf. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.
We review de novo a district court’s decision granting summary judgment. Fratello v. Archdiocese of N.Y., 863 F.3d 190, 198 (2d Cir. 2017). Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On summary judgment, we “construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004) ). Upon such review, we affirm for substantially the reasons stated by the district court in its well-reasoned June 26, 2017 opinion. See Dewitt Stern Grp., Inc. v. Eisenberg, 257 F.Supp.3d 542 (S.D.N.Y. 2017).
DeWitt argues that the language in the opening paragraph of the 2007 Employment Agreement unambiguously demonstrates that DeWitt purchased Eisenberg’s present and future book of business. To the extent the 2007 Employment Agreement is ambiguous, DeWitt asserts that the extrinsic evidence shows that the parties intended for DeWitt to purchase Eisenberg’s present and future book of business.
The district court correctly concluded that the 2007 Employment Agreement is not ambiguous and does not involve the sale of Eisenberg’s business. Aside from the opening paragraph, there is no indication that the 2007 Employment Agreement contemplated the sale of Eisenberg’s book of business. The Agreement does not define “book of business,” nor does it outline the consideration provided for Eisenberg’s book of business or reference the names of any clients or accounts that DeWitt claims it purchased. Rather, the 2007 Employment Agreement simply outlines the terms of Eisenberg’s employment. See Riverside S. Planning Corp. v. CRP/Extell Riverside, L.P., 60 A.D.3d 61, 869 N.Y.S.2d 511, 516 (1st Dep’t 2008) (“A contract is unambiguous if on its face it is reasonably susceptible of only one meaning.” (internal quotation marks and brackets omitted) ).
DeWitt argues that Eisenberg breached the 2012 Employment Agreement by (1) disclosing DeWitt’s confidential information and soliciting former clients using DeWitt’s confidential information; (2) diverting business to AJG while he was still in DeWitt’s employ; and (3) forwarding client information from his DeWitt email account to his personal email account.
The district court correctly held that no reasonable jury could find that Eisenberg breached the 2012 Employment Agreement. The information Eisenberg sent to his personal email account and to AJG prior to his registration was not confidential. This information belonged to Eisenberg’s clients, not DeWitt, and the evidence demonstrates that Eisenberg could have obtained this information through public sources. See Buhler v. Michael P. Maloney Consulting, Inc., 299 A.D.2d 190, 749 N.Y.S.2d 867, 868 (1st Dep’t 2002) (“It is well settled that an employee’s recollection of information pertaining to the needs and habits of particular customers is not actionable.”); JAD Corp. of Am. v. Lewis, 305 A.D.2d 545, 759 N.Y.S.2d 388, 388 (2d Dep’t 2003) (holding that employers cannot protect information that is “readily available from publicly-available sources”).
DeWitt also offers no evidence that Eisenberg used this information to solicit DeWitt’s clients. To the contrary, DeWitt’s employees consistently testified that DeWitt’s clients flocked to AJG because of their preexisting relationships with Eisenberg, not because Eisenberg used DeWitt’s confidential information. See Willis of N.Y., Inc. v. DeFelice, 299 A.D.2d 240, 750 N.Y.S.2d 39, 42 (1st Dep’t 2002) (“[S]ince the record discloses that many of [the defendant’s] clients are loyal to him personally, and not to the firm at which he works, he should not be enjoined from soliciting the clients he originally brought with him to plaintiffs, or related accounts.” (citation omitted) ).
DeWitt has not provided any evidence that Eisenberg’s discussions with AJG before his resignation went beyond preparation to compete later or caused DeWitt to suffer damages. See Ashland Mgmt. Inc. v. Altair Invs. NA, 59 A.D.3d 97, 869 N.Y.S.2d 465, 473 (1st Dep’t 2008) (“An employee may create a competing business prior to leaving his employer without breaching any fiduciary duty unless he makes improper use of the employer’s time, facilities[,] or proprietary secrets in doing so․”) (quoting Schneider Leasing Plus v. Stallone, 172 A.D.2d 739, 569 N.Y.S.2d 126, 128 (2nd Dep’t 1991) (alteration omitted) ). A representative from AJG testified that Guggenheim Partners, LLC did not move its insurance business to AJG. Eisenberg testified that he did not solicit New Regency and the Weinstein Company to move their business to AJG until after he left DeWitt. The evidence also shows that these clients moved to AJG because of their longstanding relationships with Eisenberg.
Lastly, DeWitt does not provide any evidence that it was injured by Eisenberg sending emails from his DeWitt email account to his personal email account. As discussed, there is no evidence that the forwarded emails contained confidential information or that Eisenberg used the emails to solicit DeWitt’s clients. Moreover, after the district court issued a preliminary injunction, Eisenberg worked with counsel to delete the emails or return them to DeWitt.
We have considered DeWitt’s remaining arguments on appeal and find them to be without merit. We AFFIRM the judgment of the district court.

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Q: What is the Martin v. Trice case about?
Wife is suing for loss of consortium for her husband’s injuries, and now wants to add her own personal injuries as a claim. This is TN case. We have the discovery rule in TN which says the SOL doesn’t start running until the plaintiff knows or should have known of the injury. Test for TN is whether the amendment raises a new cause of action and not related back (v. Fed rules). This passes the federal test for amendment, but not TN’s because TN said this was a new cause of action. You have to pass both tests in order to get the amendment.
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The California Supreme Court created waves in employment law in April 2018 when it adopted a new test for distinguishing employees from independent contractors under California’s wage orders in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903. The wage orders set forth requirements for minimum wages, maximum hours, and meal- and rest-breaks, among others. From the perspective of worker advocates, the decision was a victory, making it clearer that certain low-skilled workforces, especially in the so-called “gig” economy, are covered by the basic protections in the wage orders. As Dynamex approaches its one-year anniversary, this article recaps the decision itself, describes cases that have applied it or will soon do so, and discusses competing legislative proposals that would either solidify Dynamex’s ABC test or reject it.
California’s wage orders afford protections to “employees” but not independent contractors. The California Supreme Court had previously held that the term “to employ,” as used in the wage orders, encompasses three alternative definitions, any one of which will establish an employer-employee relationship: 1) to exercise control over wages, hours, or working conditions; 2) to suffer or permit to work; or 3) to engage, thereby creating a common law employment relationship. (See Martinez v. Combs (2010) 49 Cal.4th 35.) Although the first and third definitions are familiar, well-worn standards, the phrase “suffer or permit to work” presents confusion: When a business hires a plumber to fix its office sink, the business “permits” him or her to work, but does not “employ” the plumber, who is a classic independent contractor. In Dynamex, the Court provided needed guidance about the meaning of the “suffer or permit” standard.
The Court adopted a simple test known as the “ABC test,” which is in use in other states. Under the test, all workers are presumed to be employees, and will be deemed to be independent contractors only if “the hiring business demonstrates that the worker in question satisfies each of three conditions: (a) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (b) that the worker performs work that is outside the usual course of the hiring entity’s business; and (c) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.” (Dynamex, 4 Cal.5th at 955-56.) The Court admired the simplicity of the ABC test, noting that other tests with a long list of factors to be balanced, such as California’s common law “Borello” test for employment, have the disadvantage of requiring workers and employers alike to guess about how a court would balance those factors. The Dynamex Court also opined that the ABC test would be less susceptible to employer efforts to deny wage and hour protections to workers whom the wage orders were meant to protect.
The Dynamex holding is explicitly limited to the wage orders. The Court pointed out that the question of how to define “employment” under any given statute requires an analysis of the language and purpose of that statute.
The ABC test has the virtue of simplicity, and it also lends itself well to class certification. On the other hand, the Dynamex decision has given rise to complexity in other ways. It has led courts to apply different definitions of “employment” for different causes of action in the same case, different definitions of “employment” for an employer and its alleged joint employer, and different preemption outcomes for transportation workers depending on whether the ABC test or the common law Borello test is at issue.
Similarly, a court considering the employee-independent contractor question under the Labor Code’s Domestic Workers Bill of Rights (“DWBR”) followed Dynamex’s admonition that such analysis might differ depending on the language and purpose of the statute in question. In Duffey v. Tender Heart Home Care Agency, LLC, (2019) 3 Cal.App.5th 232, the plaintiff was a caregiver claiming she had been misclassified as an independent contractor and was owed overtime under the DWBR. Because the case did not arise under the wage orders, and because the DWBR does not include the phrase “suffer or permit,” the court did not apply the ABC test. Looking at the language and purpose of the DWBR, the court articulated a test that incorporated the Borello factors and the “control over wages, hours or working conditions” test, reversing the lower court’s grant of summary judgment to the employer on the employee-independent contractor issue.
When defining the term “employ” in the wage orders in the context of whether a company was plaintiff’s joint employer, a Court of Appeal panel – perhaps surprisingly – concluded that Dynamex did not apply. In Curry v. Equilon Enterprises, LLC, (2018) 23 Cal.App.5th 289, the plaintiff was a worker at a Shell gas station claiming unpaid overtime and missed break periods. Shell leased its gas stations to smaller operating companies, and the question was whether Shell, in addition to a small operating company, was the plaintiff’s “employer” under the applicable wage order. Although the Court was construing the same phrase as Dynamex (“suffer or permit”), it concluded that “it does not appear that the Supreme Court intended for the ‘ABC’ test to be applied in joint employment cases.” The logic behind the conclusion is certainly subject to counterarguments. In “an abundance of caution,” the Court went on to analyze the ABC factors, and found that Shell had not “employed” the plaintiff. Among other things, the court concluded that, under prong B, the plaintiff was performing work “outside the usual course of [Shell]’s business” because Shell was “in the business of owning real estate and fuel,” while the plaintiff was working for the smaller operating company in the business of operating fueling stations.
Thus, the admirably simple ABC test has resulted in some complexity in the initial wave of decisions applying Dynamex.
In the realm of the smartphone-based “gig” economy, a number of cases present upcoming occasions for courts to apply the ABC test.
Before Dynamex, Uber and Lyft litigated two of the most closely watched cases testing the employee-independent contractor distinction in the gig economy. The Lyft case was settled, and the Uber case continues after the court rejected a proposed settlement – both companies continue to classify their drivers as independent contractors, and it appears that both will be on the front lines again in testing the effect of Dynamex.
In Diva Limousine, Ltd. v. Uber Technologies, Inc. (N.D. Cal. Jan. 9, 2019) 2019 WL 144589, a livery company sued Uber for unfair competition, arguing that under the ABC test, Uber was gaining an advantage by unlawfully classifying its drivers as independent contractors. The case is before Judge Chen, like the prior Uber misclassification case.
Lyft has been sued again by drivers claiming misclassification. (See Whitson v. Lyft, Inc., 18-cv-6539-VC (Complaint filed Oct. 26, 2018).) Both cases are being heard by the judges who, respectively, presided over the original Lyft and Uber cases.
In Lawson v. Grubhub, Inc. 2018 (N.D. Cal. Nov. 28, 2018) WL 6190316, the Court had ruled against a Grubhub worker on the independent contractor issue after a PAGA bench trial. The case was on appeal when Dynamex was issued, and the district judge has since issued an opinion stating that if Dynamex’s ABC test applies retroactively – a question with far-reaching implications – there would be strong grounds for vacating the judgment. Briefing before the Ninth Circuit is scheduled to be complete in March 2019.
These cases will determine whether Dynamex transforms the gig economy, unless the Legislature steps in first.
Legislative action? In which direction?
After Dynamex came down, the gig economy companies moved quickly on the lobbying front, sending a joint letter from Uber, Lyft, Instacart, DoorDash, Postmates, TaskRabbit, and many others to Governor Brown seeking action against the decision. (See Bloomberg, “Gig Firms Ask California to Rescue them From Court Ruling” (Aug. 5, 2018).) Advocates on either side of the issue will be supporting competing bills introduced in the California Assembly in December 2018. Bill AB 5 would expressly adopt the Dynamex ABC test into the Labor Code, while also clarifying the reach of the decision in ways that are yet to be hashed out. Bill AB 71 would reject the ABC test altogether and establish the Borello test as the general test for independent contractor status.
From the perspective of worker advocates who have been troubled by private employers’ use of smartphone technology to harness massive workforces without abiding by the protections of California labor laws, Dynamex is a significant step in the right direction. However, as described above, the application of Dynamex in its first year of existence has led to some practical inconsistencies that would benefit from legislative improvement, including a statement that the ABC test applies consistently to Labor Code claims and the wage orders alike.

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Present: RUGG, C.J., WAIT, FIELD, DONAHUE, & LUMMUS, JJ.
While the "average weekly wages" which a claimant under the workmen's compensation act "is able to earn" after an injury, as those words are used in G. L. (Ter. Ed.) c. 152, s. 35, are not limited to what he could earn in the same employment but include the whole monetary result of a reasonable use of all his powers, mental and physical, whether working for others or for himself, and whether his earnings are called "wages" in common speech or not, the mere circumstance that the entire income, received weekly by a claimant who after his injury became a partner in a contracting firm, and resulting from a combination of factors of which his labor, skill and judgment constituted only one, in the aggregate amounted to a larger sum than the average weekly wages he had received before his injury, did not require the termination of partial compensation under the act, where the Industrial Accident Board found that his earning capacity and the value of his personal services to the partnership were a certain sum which was less than the amount of his average weekly wages before his injury.
the insurer that compensation be discontinued and ordering the continuation of payment of partial compensation.
In the Superior Court, by order of Weed, J., a final decree was entered ordering the payment of partial compensation. The insurer appealed.
J. E. Reagan, for the insurer.
R. H. Field, (E. Field with him,) for the claimant.
LUMMUS, J. On April 24, 1929, the claimant received an injury to his leg while employed by the contracting firm of L. P. Federico and Susi Company. It was not disputed that the injury arose out of and in the course of his employment, and that his average weekly wages before the injury were $40 a week. The claimant for a time was awarded the maximum weekly compensation of $18 a week for total disability. G. L. (Ter. Ed.) c. 152, s. 34. After April 17, 1930, it was determined by the Industrial Accident Board that the average weekly wages which he was able to earn in his injured condition amounted to $25 a week, and he was accordingly awarded compensation for partial incapacity of $10 a week, under G. L. (Ter. Ed.) c. 152, s. 35. The insurer, at some time between March 25, 1931, and September 14, 1931, applied for a discontinuance of this compensation, and on September 24, 1932, the Industrial Accident Board denied its application. The Superior Court entered a decree for payment of the compensation awarded by the board, and the insurer appealed.
divided at various times. His injury is permanent and impairs his ability to work. The claimant's average weekly income from the business is in excess of his average weekly wages before the injury, and the insurer contends that he is no longer entitled to compensation. The Industrial Accident Board found, however, that his earning capacity, and the value of his personal services to the partnership do not exceed $25 a week.
Apart from compensation for the injuries specified in G. L. c. 152, s. 36, 37, compensation to an employee under the workmen's compensation act is awarded solely for impairment of earning capacity. The "average weekly wages" which a claimant "is able to earn" after the injury are not limited to those which be could earn in the same employment. Sensk's Case, 247 Mass. 232, 234. Compare Gagnon's Case, 228 Mass. 334, and Quebec's Case, 247 Mass. 80, which relate to a different provision of the statute. The words quoted include the whole monetary result of a reasonable use of all his powers, mental and physical, whether working for others or for himself, and whether his earnings are called "wages" in common speech or not. See Sensk's Case, 247 Mass. 232, 234; Powers's Case, 275 Mass. 515. Talents previously undiscovered or undeveloped may produce an earning capacity greater than that enjoyed prior to a permanent injury which made a continuance of the earlier work impossible. In such a case there is no ground for compensation under the act, except for specified injuries.
Railway, 221 Mass. 116. Hendler v. Coffey, 278 Mass. 339, 342. Bagley v. Kimball, 268 Mass. 440. See also Cross v. Sharaffa, 281 Mass. 329; Calico Printers' Association, Ltd. v. Higham,  1 K. B. 93, 102. In some partnerships, the total disability of one partner would make little or no difference in his income or that of the partnership. There is no evidence that the claimant is skilled as a business manager. The appraisal made by the Industrial Accident Board of the ability of the claimant, since the injury, to earn "wages" or money by whatever name his earnings may be described, was supported by the evidence. The broader construction given to the word "earnings" in the statute relating to recording assignments of "future earnings" (G. L. [Ter. Ed.] c. 154, s. 6) is not controlling. Jenks v. Dyer, 102 Mass. 235. Chester v. McDonald, 185 Mass. 54. William Gilligan Co. v. Casey, 205 Mass. 26.


In addition to the risk of imposition of civil penalties—and to criminal jeopardy and seizures as well, when the circumstances support such consequences—the importer and others involved in the entry of merchandise also run the risk of liquidated damages being assessed.
These are not penalties, in a technical sense, but rather demands in defaults of contractual obligations. That may be true but it is also true that they have the same practical effect as a penalty. The transgressor must still dig into its pockets and make a payment to CBP. We should pay attention to them, because they are imposed on an expedited basis and are really in the nature of fines levied because of the party’s failure to meet its bond obligations.
And that brings us to bond requirements.
Most actions associated with importation require the posting of surety bonds by the subject party. The purpose of the bond is to protect the revenue and to assure compliance with the customs laws.5 The bond itself is a three-party contract, with the principal being the importer or other party, the surety which must be a company selected from an approved list being the underwriter of the debt and the beneficiary being CBP. The principal and surety are joint and several obligors. For my non-lawyer readers, “joint and several liability” means that multiple parties can be held liable for the same event or act and be responsible for all restitution required. In other words, the liable parties would be required to pay the entire damage award, which might be split among multiple parties or might come from just one party. CBP could demand full payment from the importer or, if the importer has “disappeared” or is insolvent, CBP could demand full payment from the surety.
Bonds can be either single entry or continuous, in the latter case it will cover all transactions during a set period, usually a year. The amount of the bond is usually a function of the type and value of the merchandise, with the lowest level of a continuous importer’s bond set at $50,000. Bond premiums are typically 1% of the coverage, thus there would be an annual premium of $500 for a $50,000 bond coverage.
The presence of a surety bond is a major reason why CBP can be relaxed about importers and others meeting their obligations, since a failure to do so will trigger a liquidated damage claim. What customs matters are covered by surety bonds?
Note that the obligation to make a timely entry will trigger a liquidated damage claim for a delayed entry filing, while the importer’s failure to pay duties and fees in full will first trigger a demand on the surety to pay those duties and taxes up to the amount of the bond. That demand could be followed by a liquidated damage claim.
If there has been a bond violation, such as a failure to file a timely entry, to take a simple example, CBP can issue a liquidated damages claim. The statute of limitations for the vast majority of such claims, including an untimely entry, is one year from the date the right of action accrued.8 The statute does not run if the violator is outside the US. Thus, if the principal in an import/entry bond is a non-resident importer of record, the statute of limitations will not run. Nor will the statute run if facts material to the right of action are not known by CBP.
There is a degree of forgiveness at play in the process. As has been recounted in a 2011 ruling,11 the customs regulations12 provide that extensions of the time for exportation of merchandise imported under a TIB may be granted by the appropriate district director upon written application on CBP Form 3173. Section 10.37 provides that untimely requests for an extension of time for exportation are to be referred to CBP Headquarters.
If CBP issues a liquidated damage claim, typically through a CBP Form 5955A (CBP 5955A), it is not subject to review under the protest procedure of 19 USC § 1514.17 Instead, the importer or other concerned party may either pay the specified amount within 60 days or file a petition and seek to pay a lesser amount.18 In the latter case, the importer or other concerned party would invoke mitigating circumstances (e.g., new and inexperienced importer, cooperation with CBP, small number of violations, contributory CBP error, low value import).
Perhaps it would be helpful to think of liquidated damages as payments demanded by CBP for failures to meet the administrative or procedural obligations that are created by surety bond commitments rather than penalties levied on substantive violations such as false or erroneous tariff classification, customs valuation or origin declarations connected with an entry. Still, as noted, the effect is the same. The importer or other affected party must pay for its inaction.
1. In the US, the statutory basis for the imposition of civil penalties for a failure to meet “reasonable care” standards is 19 USC § 1484 (a).
2. To be sure, there are other specific penalty statutes, such as for failure to manifest controlled substances and those which apply to specific persons (brokers) or activities (e.g., duty drawback and recordkeeping).
3. There are three levels of culpability-- negligence, gross negligence and fraud.
4. 19 USC § 1592 (c) (4).
5. 19 USC §1623, 19 CFR Part 113.
6. See 19 USC § 141.113, ruling no. 962748 (4/24/00).
7. 19 CFR §§ 113.62 (a)- (k).
8. 28 USC § 2415.
9. See ruling no. 225110 (4/20/94).
10. 19 CFR §§ 10.31-.40.
12. 19 CFR § 10.37.
13. See ruling no. 222843 (12/10/90).
14. See ruling no. 219659 (7/8/87).
15. See ruling no. 223699 (5/15/92).
16. See ruling no. 222800 (2/4/91).
17. See, e.g., ruling no. 228844 (9/18/00) (A demand for liquidated damages is not listed in the statute as protestable. Indeed, the United States Court of International Trade (Halperin Shipping Co., Inc. v. United States, 14 CIT 438; (1990 CIT); Pope Products v. United States, 15 CIT 279, (1991 CIT); Playhouse Import & Export v. United States 18 CIT 41 (1994 CIT)), and the United States Court of Appeals for the Federal Circuit (United States v. Toshoku America, Inc., 879 F. 2d 815, 818 (Fed. Cir. 1989)); have acknowledged that a demand for liquidated damages is not a Customs decision that is protestable under 19 U.S.C. §1514).
18. Pursuant to 19 CFR § 172.2.