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The authors consider economic clusters to be an example of the new resource competition model, based on the efficient common use. In the article is offered a new cluster classification system, tacking into account the factors of cluster emergence and the level of market development in the region. A new approach to the problem of cluster efficiency evaluation is also provided, including different resource efficiency indicators.
Keywords: clusters, globalization, market, resources, competition, cluster classification, efficiency evaluation.
1. Porter M.E. Konkurenciya M.: Vil'yams, 2005.
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The article is devoted to the study of the interrelations between sociological and managerial concepts in modern management. The main attention is paid to the study of the concept of “mass” from the perspective of organization management in the postindustrial era .It presents a new perspective on the role of the masses in modern organizations, justifying the possibility of more effective management of organizations working in the sphere of high technologies. Attention is paid to the study of the relationship of mass and productivity.
Keywords: mass, individual, collective choice, organizational efficiency, productivity.
1. Jerrou K. Dzh. Kollektivnyj vybor i individual'nye cennosti, M.: ID GU VShJe, 2004.
2. Kanetti Je. Massa i vlast', M.: AST, 2014.
3. Botton A de. Iskusstvo puteshestvovat', M.: Jeksmo, 2013.
4. Sart Zh-P. Toshnota, M.: AST, 2011.
5. Merton R. Social'naja teorija i social'naja struktura, M.: AST, 2006.
The article describes the basic principles of strategic management in e-business. On the basis of the process approach are defined the content and scope of e-business. The relationship between the chosen strategy of the company and the stage of the life cycle is substantiated. The parameters of the forecasting model of electronic business development at a macro-level are proposed.
Keywords: business model, strategic management, electronic business, forecast of the market.
1. Kozhevina O.V. Problemy strategicheskogo upravlenija razvitiem «jelektronnogo» biznesa v bankovskom sektore // Materialy Tret'ej Mezhdunarodnoj nauchno-prakticheskoj konferencii «Jekonomicheskie i social'nye nauki: proshloe, nastojashhee i budushhee». M: Izdatel'skij dom «Jekonomicheskaja gazeta», 2014. – S. 434-442.
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The purpose of this article is the analysis of the theoretical foundations of the effectuation theory and definition of the place of this concept in the strategic management theory. Effectuation is the process of entrepreneurial thinking when an entrepreneur based on an existing set of means chooses from possible effects that can be created with that set of means. As an alternative to rational thinking effectuation seems a more effective approach to new venture creation under conditions of uncertainty and unpredictability of future events. The analysis of the theoretical foundations of the effectuation theory has revealed the theoretical antecedents of this concept in K. Weick, F. Knight and J. March’s works, as well as introduced the effectuation theory as one of the possible answers to the fundamental questions of strategic management.
Keywords: strategic management, entrepreneurship, effectuation, decision-making.
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9. Read S., Sarasvathy S.D. Knowing What to Do and Doing What You Know: Effectuation as a Form of Entrepreneurial Expertise // Journal of Private Equity. 2005. Vol. 9. № 1. P. 45–62.
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12. Sarasvathy S.D. Entrepreneurship as a Science of the Artificial // Journal of Economic Psychology. 2003. Vol. 24. № 2. P. 203–220.
13. Sarasvathy S.D. Making it Happens: Beyond Theories of the Firm to Theories of Firm Design // Entrepreneurship Theory and Practice. 2004. Vol. 28. № 6. P. 519–531.
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15. Sarasvathy S.D. Causation and effectuation: Toward a theoretical shift from economic inevitability to entrepreneurial contingency // Academy of Management Review. 2001. Vol. 26. P. 243–263.
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18. Venkataraman S., Sarasvathy S.D. Strategy and entrepreneurship: Outlines of an untold story. Darden Business School Working Paper No. 01–06. 2001.
19. Weick K.E. Enacted Sensemaking in Crisis Situations // Journal of management studies. 1988. Vol. 25 № 4. P. 305–317.
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What kind of marketing and the marketers regions need?
The article examines how marketing and marketers are perceived in the regional enterprises. The authors carried out an assessment of marketing functions depending on the regional business characteristics. Based on these observations and expert interviews the specifics of marketing services regional demand and employer behavior in the labor market are provided. They causes of mismatch between the requirements and qualifications demanded on the regional markets from marketers and the ones offered are explained. Recommendations concerning the organization of the marketing functions for regional SME are offered.
Keywords: marketers, regional SME, strategic and operational marketing, labor market.
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The article presents the result of the analysis of strategic territory management, document classification of strategic management, are proposed approaches and an integration model of strategic and spatial planning development of territories, are examined the relationships between government, business and the population in the management of the land.
Keywords: strategic management, territorial planning, development, government, business, population.
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The paper describes the balanced scorecard as a tool to assess the strategic development of a municipality. A balanced scorecard is developed for the evaluation of the socio-economic development of the city of Novoshakhtinsk. Recommendations are made for the optimization of a future city development program.
Keywords: Balanced Scorecard, strategy of municipal and education, monitoring strategy, management of the municipal formation.
3. Kaplan R.S., Norton D.P. Using the Balanced Scorecard as Strategic Management System. Harvard Business Review, Jаnuary–February 1996, р. 25.
4. Kaplan R.S., Norton D.R. The balanced scorecard: translating strategy into action, Boston: HBS Press, 1996, p. 76.
9. Razrabotka strategicheskogo vybora municipal'nogo obrazovanija [Develop a strategic choice of the municipality]: uchebno-metodicheskoe posobie. − M.: FGNU «Rossijskij nauchnyj centr gosudarstvennogo i municipal'nogo upravlenija», 2004. - 184 p.
10. Gajnanov D. A. Formirovanie strategii razvitija municipal'nyh obrazovanij [Formation of strategy of development of municipalities] / D. A. Gajnanov, I. V. Degtjareva, I. A. Tazhitdinov i dr. - Ufa: Gilem, 2007. - 163 p.
The multi-phase spiral-like model of cross-border cooperation development is put forward. The proposed stages of cross-border cooperation development include initiation, institualization, extensification, intensification, stabilization, modernization (or degradation), agglomeration and post-agglomeration development. The author names economic, social and information criteria for evaluating cross-border cooperation development and suggests formulas for calculating them.
Keywords: management of territorial development, evaluation of territorial development, cross-border cooperation, transborder territorial units, border municipalities.
1. KaliuzhnovaN. J. Konkurentosposobnost' regionov: teoriia i metodologiia analiza v kon-tekste sovremennogo ekonomicheskogo razvitiia: avtoref. diss. … dokt. ekon. nauk: 08.00.01/08.00.05. Tomsk: 2004. 51 p.
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7. Sokolova G.V. Upravlenie processami razvitiia vneshneekonomicheskogo potenciala organizacii biznesa prigranichnyh territorii: avtoref. diss. … kand. ekon. nauk: 08.00.05. Khabarovsk: 2011. 21 p.
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10. Semakina J. A. Prigranichnoe sotrudnichestvo municipal'nyh obrazovanii (municipal'no-pravovoe issledovanie): avtoref. diss. … kand. iurid. nauk: 12.00.02. Moskva: 2014. 29 p.
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12. Kushhenko V. V. Osobye rezhimy vneshneekonomicheskoj dejatel'nosti: pravo i praktika. Moskva: 2004. P. 61-66.
14. Bolotov D.A., Mezhevich N.M. i Shuraev V.V. Prigranichnoe (mezhdunarodnoe) sotrudnichestvo v sisteme mezhmunicipal'nogo vzaimodejstviia. Sankt-Peterburg: Izd-vo Politehnicheskogo un-ta, 2005. 118 p.
In the article the current state of inventive activity in the Republic of Kazakhstan is discussed. In particular, the analysis of the dynamics of the issued patents number, the distribution between domestic and foreign applicants, as well as the ratio of the number of registered license agreements and the number of patents in Kazakhstan are shown. Also in the article the results of the expert survey of patent attorneys, aimed at identifying the main problems of inventive activity, are shown.
Keywords: invention, patenting activity, the license agreement, an expert survey, the problems of the commercialization.
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3. Mamrayeva D.G., Tashenova L.V. Patent activity in the Republic of Kazakhstan: regional differences and the main problems // Innovations. – 2012. - № 6 (164). – P. 102-106.
In the context of the economic and financial instability in Moldova of particular interest is the problem of lending to the real sector of the economy to ensure economic growth. In the article are addressed the factors affecting the banks’ lending capacity. The dependence of credit demand on the situation in the real economy is shown. An analysis of the lending activity in Moldova in comparison with countries in the region is provided. Trends in interest rates during the (2006-2015) period and the main problems associated with crediting the real sector under crisis conditions are provided.
Keywords: financing the real economy of Moldova, banks’ crediting capacity, supply and demand factors of loans, interest rate dynamics, profitability, crisis.
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This work was funded by the subsidy allocated to Kazan Federal University for the project part of the state assignment in the sphere of scientific activities.
The matter of the world economy’s transition to an innovative way of development was recently put in the central position in the life of our society. The major place in these ongoing discussions is given to the choice of priorities, which could set a powerful impetus for the innovative development of economies of the single countries. One of these priority courses is energy efficiency enhancement, which is able to become a uniting principle with respect to other priorities of the innovative activities. The world patent practice in the sphere of energy-efficient technologies is being analyzed in the present article. Patterns in the activity of applicants for patent receiving in different countries worldwide are being detected. Special attention is paid to the tendencies of patent registration in the field of energy-efficient technologies in Russia. The specialization of various countries’ elaboration of energy technologies of a particular target setting is being studied.
Keywords: energy-saving and energy-efficient technologies, patents for inventions, comparative patent analysis, patent specialization of the countries.
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Problems of management of the restructuring process in a non-profit organization is actual under the conditions of the modern transformation. Today restructuring is one of the most important and characteristic of the activities of almost any organization, aimed at successful functioning.
Keywords: non-profit organization, restructuring, management, changes, employees, diagnostics, development of the organization.
1. Dobren'kov V.I., Kravchenko A.I. Metody sociologicheskogo issledovaniya: Uchebnik. — M.: INFRA-M.2004. – 768 p.
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The article analyzes the main aspects and problems in time management of executives in health care institutions. The results of a sociological survey conducted among executives of medical organizations in the Vologda region in 2015 are used in the quality of a research base. It proves, how the executives in-formed about the importance of using basic principles and techniques of time management in practice, and to what extent they use them in their daily work.
Keywords: executive, working hours, time management, discretionary time, medical facility.
1. Druker P.F. Zadachi menedzhmenta v XXI veke.: Per. s angl.: – M.: Izdatel'skii dom «Vil'yams», 2004.
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The article presents a balanced mechanism of personnel motivation, based on the use of economic methods of determining an individual’s labor potential. We review the method of calculating the coefficient of the labor contribution of each individual employee to the overall integration process of production, as well as the weight of the achievements and shortcomings in the work of the personnel. This enables the employer to determine the “filtering effect” of information and the absolute and cumulative losses from disadvantages perpetrators and count the economic effect of the work done by each link in the overall system of personnel management.
Keywords: intensive development of the economy, innovative approaches, personnel management, balanced methods of motivation, coefficient of labor input, list of achievements of labor, economic approach motivation, filtering effect of information, cumulative distribution losses.
1. Vesnin V.R. Management: the textbook. – 4 th ed., rev. and add. - M.: Prospect, 2012. - 404 p.
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8. Kabanov V.N. Personnel management based on the balanced scorecard. Theory and practice of personnel motivation systems. Personnel management in the enterprise: Monograph / V.N. Kabanov. - Germany : LAP LAMBERT Academic Publishhing, 2013. - 205 p.
9. Minin V.M. Key members of the organization: approaches to identification and control problems // Personnel. - 2011. - № 1. - p. 86 -98.
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Is discussed in this article the need for the assessment of human capital as the basis of an innovative economy, the author’s methodology of evaluation of the value of human capital of the enterprises is proposed; are analyzed the peculiarities of the assessment of human capital, taking into account industry specifics, the necessity of an evaluation of human capital taking into account qualitative indicators.
Keywords: high-quality human capital, the assessment of the value of human capital, the method estimates the value of human capital of the enterprises, industry specifics, qualitative indicators for assessing human capital.
1. Alaverdyan In. Assessment of the value of the «human capacity» of the enterprise [Electronic resource]. Mode of access: www.cfin.ru/management/people/value_people.shtml. 14.05.2003.
2. Tuguskina G.N. Development of methods of assessment of human capital in the value of a company// Vestnik of goo, 2011, №6, C. 174-177.
3. Kostina G.D., Khotsimsk YU. Ways of strengthening the personnel potential of//the Frames of the enterprise, 2003, №12 - Mode of access: http://www.kapr.ru/articles/2003/12/3372.html.
4. Nikolaev O.V. The personnel potential of science-intensive industries: a way out of the crisis. - M.: Economy, 2005.
5. Nikolaev O.V. The development of personnel potential of the military-industrial complex of Russia: methodology and practice: dis... d-RA economy. Sciences, 08.00.05, M., 2005.
6. Statistics: textbook/Kharchenko L.P., Dolzhenkova V.G., Jonas V. and etc.; Edited by candidate of economic Sciences V. Ionin. - Ed. 2-e, pererab. I DOP. - M.: 2003.
The article is devoted to the study of human potential in career achievements and the prospects of selection indicators and training of specialists in personnel management. In the present study it is shown that the combination of personal qualities and the specificities of the construction of a time perspective activities acts as a predictor and the basis of professional selection in personnel management.
Keywords: personal potential, career goals, time perspective, goal setting, human resource management.
1. Abul'khanova K.A. Strategiya zhizni. M.: Mysl', 1991. S. 125-156.
2. Anan'ev B.G. Izbrannye psikhologicheskie trudy: v 2 t.M.,1980. T.1.
3. Bazarov T.Yu.Organizatsionnyi kontekst upravleniya personalom / Sotsial'naya psikhologiya. Khrestomatiya. M.: Aspekt-Press, 2003.
4. Bazarov T.Yu., Eremin B.L. Upravlenie personalom. - M.: Izd. YuNITI, 2005.
5. Bolotova A. K. Psikhologiya organizatsii vremeni. Ucheb. posobie // M.: Aspekt - Press, 2006.
6. Bolotova A.K. Chelovek i vremya v poznanii, deyatel'nosti, obshchenii // Izd. dom GU VShE. – M.; 2007.
7. Eremin B.L., Bazarov T.Yu., Aksenova E.A. Upravlenie personalom: Uchebnik dlya vuzov. M.: Yuniti, 2007.
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This article is devoted to the analysis of expenses on employees in the Russian banking industry. The total expenses on employees per employee, the share of salary expenses, and the share of employee mobility costs and the share of other expenses in total expenses on employees are calculated. The key source of information are the financial reports of banks published on the website of the Central Bank of the Russian Federation. Statistical analysis demonstrated that expenses on employees differ for international and local banks, and also for banks with different types of business.
Keywords: employee expenses, structure of employee expenses, banking sector, Russia.
1. Kibanov I.Y. Ocenka ekonomicheskoi i socialnoi effektivnosti proekta sovershenstvovaniya sistemi I tehnologii upravleniya personalom organizacii: Uchebnoe posobie. – M.: GUU, 2006.
2. Odegov Y.G., Nikonova T.V. Audit i controlling personala. – M.: Ekzamen, 2010.
4. Prosvirkina E.Y., Prosvirkin N.Y., Subbocheva A.A. Stimulirovanie personala v rossiskih innovacionnih kompaniyah// Kreativnaya ekonomika. 2012. № 7.
7. Fitz-enz Y. Rentabelnost investicii v personal. Izmerenie ekonomicheskoi cennosti personala. – M.: Vershina, 2006.
8. Banner D., Baker G. Human Resources Accounting: A Critical View // MSU Business Topics, 1973, Vol. 21, pp. 45–52.
9. Brummet R., Flamboitz E., Pyle W. Human Resources Measurement – A Challenge for Accountants // The Accounting Review, 1968, Vol. 43, No. 2, pp. 217–224.
The study was financially supported by the Russian Science Foundation, project N 15-18-00049.
Keywords: opportunistic behavior, forms of opportunism, management opportunism.
1. Balackii E.V. Gosudarstvennyi sektor v sisteme makroekonomicheskogo regulirovaniya. // Problemy teorii i praktiki upravleniya. – 2001. – № 1. – S. 60-65.
2. Dombrovskaya E.N. Formirovanie uchetno-informacionnogo obespecheniya v sisteme upravleniya gosudarstvennymi predpriyatiyami. – S. 48-56. // Uchet, analiz, audit: Nauchnyi specializirovannyi zhurnal. – Vyp. 2. – M.: Maks Press, 2010.
3. Kleiner G., Petrosyan D., Bechenov A. Eshe raz o roli gosudarstva i gosudarstvennogo sektora v ekonomike. // Voprosy ekonomiki. – 2004. - № 4. – S. 25-41.
4. Okrepilov V. Strategicheskie problemy upravleniya kachestvom produkcii promyshlennyh predpriyatii // Tretii vserossiiskii simpozium «Strategicheskoe planirovanie i razvitie predpriyatii». Plenarnye doklady. – M.: CEMI RAN, 2003.
7. Uil'yamson O.I. Ekonomicheskie instituty kapitalizma. Formy, rynki, «otnoshencheskaya» kontraktaciya. – Spb.: Lenizdat, 1996.
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9. Bodrov O.G. Sovremennye osobennosti opportunizma rabotnikov v rossiiskoi firme. // Vestnik KGFEI. Problemy truda. – 2007. - № 4. – S. 41-45.
10. Ol'shanskii A.S. Asimmetriya informacii na rynke truda. // Vestnik Kaliningradskogo yuridicheskogo instituta MVD Rossii. – 2011. – № 2. – S. 43-46.
12. Belyaeva M.G. Institucional'nye mehanizmy regulirovaniya otnoshenii rabotnika i rabotodatelya: avtoref. dissertacii dokt. ekon. nauk. Moskva, 2009.
13. Popov E.V., Sergeev A.M. Sovremennyi rossiiskii institucionalizm: k prodolzheniyu diskussii // Voprosy ekonomiki. 2010. № 2. S. 103-116.
14. Alchian A., Demsetz H. Production, Information Costs ad Economic Organization // American Economic review, 1972, vol. 62, No 6.
15. Popov E.V., Simonova V.L. Endogennyi opportunizm v teorii «principal-agent». // Voprosy ekonomiki. – 2005. – № 3. – S. 118-131.
16. Kozlova E.V. Ekonomicheskie mehanizmy vyyavleniya i ogranicheniya opportunisticheskogo povedeniya v rossiiskih korporaciyah. // Vestnik Chelyabinskogo gosudarstvennogo universiteta. Ekonomika. – 2012. – № 10. – S. 117-122.
17. Belyaev I.V, Kuznecova O.V., Pyatkova O.N., Shihaleva N.Yu. Institucionalizaciya trudovyh otnoshenii i preodolenie opportunizma personala na promyshlennyh predpriyatiyah // Vestnik Tomskogo gosudarstvennogo universiteta. Ekonomika. – 2013. – № 3. – S. 61-70.
18. Pyatkova O.N. Institucional'nye podhody k resheniyu problem preodoleniya soprotivleniya personala vnedreniyu organizacionnyh izmenenii//Vestnik Tomskogo gosudarstvennogo universiteta. Ekonomika. – 2014. – № 2. – S. 92-98.
19. Perederenko O.A. Vovlechenie personala kak klyuchevoi faktor ustoichivogo razvitiya predpriyatiya// Shumpeterovskie chteniya. Materialy 4 – i Mezhdunarodnoi nauchno-prakticheskoi konferencii. – Perm. – 2014. – S.81-84.

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Amendments to the Department of Banking and Securities ("DOBS") Code, 71 P.S. § 733-1 et seq.
H.B. 2369 amended the DOBS Code to grant the Department the authority to impose a civil money penalty of up to $25,000 per violation against an institution, or any of its officers, employees, directors, or trustees for: (i) violations of any law or Department order, (ii) engaging in any unsafe or unsound practice, or (iii) breaches of a fiduciary duty in conducting the institution’s business. This is a significant enforcement tool that the Department can use against institutions that violate Pennsylvania law.
Another very significant amendment to the DOBS Code is the repeal of the requirement that the Department issue prior warning to an institution, or its officers, employees, directors or trustees, before initiating an enforcement action. Thus, the Department can issue an order against an officer, employee, director, or trustee of an institution for a violation of law, engaging in an unsafe or unsound practice, or breaching a fiduciary duty. In addition, the Department can immediately suspend those individuals if the Department believes that the institution, its shareholders, or depositors have suffered or may suffer significant financial harm or other prejudice from that individual’s continued involvement with the institution. Should the Department prevail at a post-removal due process hearing, the individual could be disqualified from working not only for the institution he or she was removed from, but from working for any Pennsylvania institution, credit union or licensee, for a period of time to be determined by the Department. While the initial removal order will remain confidential, any final order issued will likely be published on the Department’s website.
Third, the amendments to the DOBS Code clarify the Department’s authority to issue "orders" such as cease-and-desist orders, orders to show cause, consent agreements and orders, and notices of fines pursuant to five of the 12 statutes under the Department’s jurisdiction, which, as codified, do not provide the Department with the ability to "order" corrective action or money penalties for violations of those acts. See the Check Casher Licensing Act, 63 P.S. § 2304; the Consumer Discount Company Act, 7 P.S. § 6212; the Credit Services Act, 73 P.S. § 2190; the Money Transmitter Act, 7 P.S. § 6110, and the Pawnbroker License Act, 63 P.S. § 281-8. New section 202.D provides the Department with "order" authority so that it can better enforce the laws under its jurisdiction and no longer has to rely on the attorney general, district attorneys or other law enforcement authorities to initiate enforcement actions to enforce those statutes.
Fourth, the DOBS Code was amended to permit the release of certain information with the public regarding institutions and credit unions similar to the 2008 amendment to the DOBS Code, which permitted the Department and its employees to share certain information to the public (such as enforcement orders) without violating the confidentiality provisions of section 302. In addition, the institutions themselves will be permitted to disclose formal enforcement actions similar to orders issued by the Federal Deposit Insurance Corporation or the Federal Reserve Board without making a prior written request to the Department.
The DOBS Code amendments expand state "visitorial powers" over national banks to comply with Dodd-Frank’s codification of the U.S. Supreme Court’s opinion in Cuomo v. Clearing House Association, 129 S.Ct. 2710 (2009). The Supreme Court held that the New York attorney general’s law enforcement power – for example, the power to enforce non-preempted laws such as New York’s fair lending law – is distinguishable from the supervisory power over national banks, which is a power exclusive to the Office of the Comptroller of the Currency ("OCC"). Dodd-Frank codified the Cuomo opinion and provides that state attorneys general may initiate civil actions against national banks and federal savings associations in order to enforce regulations of the Consumer Financial Protection Bureau ("CFPB"), certain other applicable federal laws, and state laws not preempted by federal law. However, such power does not extend to enforcing Dodd-Frank in general, except as noted.
Accordingly, Pennsylvania’s attorney general can initiate civil actions against national banks, federal savings banks, and state-chartered institutions with respect to Pennsylvania’s non-preempted laws, as well as to enforce Title X of Dodd-Frank and regulations promulgated by the CFPB. It will be interesting to see if the attorney general attempts to initiate such actions against national banks, especially when Pennsylvania’s Democratic attorney general is sworn into office in January 2013.
The attorney general’s ability to initiate civil actions against financial institutions, credit unions, licensees, foreign financial institutions, national banks, federal savings associates or their subsidiaries will be subject to approval of, or brought at the request of, the Department. If the attorney general refuses to initiate an action at the request of the Department, new section 506 of the DOBS Code provides that the Office of General Counsel ("OGC") may initiate an action on behalf of the Commonwealth. However, Dodd-Frank only authorizes an attorney general or the attorney general’s equivalent to initiate actions against national banks or federal savings associations. It is questionable whether the OGC, as the attorneys representing the governor and agencies under the governor’s jurisdiction, is the equivalent of the Office of Attorney General, which is an independent agency with the authority to represent the governor or administrative agencies in civil action in Pennsylvania pursuant to the Commonwealth Attorneys Act. 71 P.S. §§　732-201, 732-301.
The DOBS Code has further been amended in light of Dodd-Frank to clarify that the Department can examine subsidiaries of national banks and their employees in order to enforce state consumer financial laws to the extent not otherwise preempted by federal law. Subsidiaries of national banks and federal savings associations doing business in Pennsylvania should anticipate examinations by the Department for compliance with state and local laws and regulations as if such laws and regulations apply to Pennsylvania state-chartered institutions and their subsidiaries. In addition, the DOBS Code has been amended to grant the Department the authority to share information with the CFPB, such as reports of examination.
New section 506.I of the DOBS Code provides that Pennsylvania’s consumer financial laws not otherwise preempted by federal law apply to national banks and federal savings associations and their subsidiaries as though they are state-chartered institutions. Dodd-Frank provides that state consumer financial laws are preempted only if: (1) the state consumer financial law would have a "discriminatory effect" on national banks; (2) the state consumer financial law "prevents or significantly interferes with the exercise by the national bank of its powers" in accordance with the Supreme Court decision in Barnett Bank of Marion County, N.A. v. Nelson, Florida Insurance Commissioner, et al. (517 U.S. 25 (1996)); or (3) the "State consumer financial law is preempted by a provision of Federal law other than [Title X of Dodd-Frank]." See section 1044 of Dodd-Frank. In addition, section 1044 of Dodd-Frank codified the Barnett holding by providing that a reviewing court shall assess the determinations of the OCC, the reasoning, the consistency with other determinations, and any other relevant factors for the court. Finally, the amendments clarify that state consumer financial laws also apply to foreign financial institutions, which include institutions regulated by other states and other countries.
Lastly, the provisions of new section 506 of the DOBS Code make it clear that no other Pennsylvania agency or political subdivision may exercise the Department’s powers and responsibilities without express authorization by the Department. Such agencies would be permitted to enforce any other permitted power so long as enforcement is not related to or incidental to the banking or financial activities, or operations or conditions of such entities. The restrictions on initiating enforcement actions in no way impact the Pennsylvania attorney general or municipal and law enforcement agencies’ ability to commence criminal proceedings against financial institutions.
As can be seen, this one bill significantly increased the Department’s enforcement power over financial institutions (both state and federal) and its ability to regulate all civil banking actions against institutions in the Commonwealth.
Amendments to the Banking Code of 1965 ("Banking Code"), 7 P.S. § 101 et seq.
H.B. 2368 was a major, 111-page bill that streamlined the Banking Code to eliminate provisions that are duplicative of federal law and incorporated certain provisions of Dodd-Frank.
First, through the amendment of several sections of the Banking Code, limited liability companies will be permitted to conduct business in Pennsylvania as a bank, bank and trust company, trust company, or savings bank. Second, national banks and federal savings banks can act as fiduciaries in Pennsylvania. Finally, money transmitters, which are separately licensed and regulated by the Department, are now included on the list of entities not deemed to be engaged in the banking business.
The new standard of care set forth in the Banking Code for both officers and directors mimics the standard of care in the Pennsylvania Corporations Code, and provides that they will be permitted to perform their duties "in good faith in a manner he [or she] reasonably believes to be in the best interests of the corporation and with such care, including reasonable inquiry, skill and diligence, as a person of ordinary prudence would use under similar circumstances." By codifying this standard of care, the Department has a stronger basis for issuing orders for the removal of directors or officers, as well as to levy civil money penalties for violations of this enumerated standard of care. Officers and directors will not be held strictly liable for actions taken in good faith in performing their duties at the institution. Rather, directors of an institution may rely in good faith on the information, opinions and reports provided by officers, employees, attorneys, accountants, or committees of the board. In addition, an officer of an institution will not be held liable simply because that individual is an officer of the institution. These provisions should allow officers and directors to function in their capacity as officers and directors without fear of repercussions for decisions made in good faith on behalf of the institution and in compliance with the standard of care.
The penalties provided for in section 2104 for willful violations of sections 105 and 106 by natural persons engaging in the business of a bank or as a fiduciary are changed from a misdemeanor punishable with imprisonment for up to one year, a fine of not more than $1,000, or both, to a felony punishable by up to two years imprisonment, a fine of not more than $10,000 per violation, or both. For non-natural persons, the penalty for willful violation of the Banking Code has been increased from a fine of up to $5,000 to a fine of up to $500,000. The increased penalties reflect the seriousness with which the Department views such activities, and the Department’s desire to ensure that no person or entity engages in such unauthorized activity.
Revised section 202 of the Banking Code significantly increases the threshold limit required for Department approval for an institution and other entities to acquire and hold real property for the purpose of conducting business, or providing parking facilities or data processing centers. The threshold will now be 100 percent (rather than the previous threshold of 25 percent) of the aggregate of surplus, unallocated reserves, undivided profits and subordinated securities for mutual savings banks, or 100 percent of the aggregate of capital, surplus, undivided profits and capital securities for any other institution. As a result, institutions do not need the approval of the Department to purchase or otherwise acquire such real property unless in doing so, the institution would be caused to incur obligations that exceed 100 percent of its aggregate capital, surplus or undivided profits.
The Banking Code had previously been comprised of different consumer lending empowerments enacted over many years that were distributed throughout the Banking Code. New section 303 of the Banking Code appears to be the new "one stop shop" for consumer lending law applicable to banks in Pennsylvania.
First, new section 303 consolidated, repealed, and moved many of the sometimes competing credit and other lending sections of the Banking Code into one section. For instance, new section 303 includes the old section 319 "parity provision," and empowers state banks to make loans at "such interest, finance charge, rate or terms" authorized to any other lender "regulated by any Federal or State supervisory authority on the specified class of loan." The legislature’s retention of the substance of section 319 may be helpful as a basis for state banks to obtain permissive legal authority for making consumer loans that other lenders enjoy.
New section 303 retains almost in its entirety repealed section 322, which contained the 1994 "Simplification and Availability of Bank Credit Act" (the "Simplification Act"). New section 303 retains the favorable and permissive environment created by the Simplification Act for banks making consumer loans, but it also contains some requirements and limitations such as requiring a written agreement with specified contents, and prohibiting prepayment charges that readers should review in full.
Second, new section 303 expands lending authority as well. The Banking Code now includes, for the first time: (i) first lien, purchase money residential loans; (ii) student loans guaranteed by Pennsylvania’s Higher Education Assistance Agency; and (iii) a series of loans previously excluded because they were not subject to state usury law. For example, business loans are exempt from civil usury laws and were thus not covered by the Simplification Act. Now, arguably, certain business loans are subject to section 303 and can benefit from its favorable legal authority. Another example involves unsecured consumer loans of more than $35,000, which are exempt from civil usury law and previously were not covered by the Simplification Act. New section 303 may apply to them. Therefore, almost all closed and open-end consumer loans by banks are authorized under the Simplification Act in new section 303, and that is generally good news for lenders.
As mentioned above, loans covered by section 303 must be the subject of a written agreement. Such loans are arguably free of a maximum rate limitation (subject to criminal usury laws), although the law does not expressly say that the rates may be established as agreed. Interestingly, a prior Simplification Act provision limiting variable rate loans to a maximum rate has been deleted, again suggesting that no maximum rate limitation exists. The maximum limitation on a delinquency charge (previously the higher of $20 or 10 percent) has also been deleted. Otherwise, the relatively permissive consumer lending provisions of the Simplification Act are retained.
Third, former section 310 covered "real estate loans" and was deemed to be restrictive in its payment and loan-to-value ratio ("LTV") limitations. Section 310, however, has been repealed, its content has been moved to new section 303, and its restrictions have been substantially liberalized. Banks now are generally authorized to make real estate loans for a term of up to 40 years and at an LTV of up to 90 percent. That section is shorn of its prior limitations, such as requiring loans to have "substantially equal payments." Even a 100 percent LTV ratio is permitted for loans of less than $100,000, or for those with private mortgage insurance, subject to federal law LTV requirements. Section 310’s coverage is expanded beyond first lien loans.
New section 306 implements section 611 of Dodd-Frank, which provides that state banks may engage in derivative transactions only if the lending limit laws of their chartering states take credit exposure on derivate transactions into consideration. By virtue of section 306 including derivative transactions in the calculation under Pennsylvania law of the lending limit to one borrower, Pennsylvania-chartered banks will be able to continue to enter into interest rate swaps, options, and other derivative transactions. Absent section 306’s language, Pennsylvania banks would have been competitively disadvantaged as they could not have offered derivative transactions to their customers, while national banks had no such restrictions.
The Banking Code Amendments made to section 902 now allow affiliated banks that are subsidiary institutions of the same bank or financial holding company, to engage in certain banking activities (such as accepting deposits and servicing loans) as an agent for the institution’s affiliated entity. Thus, it permits inter-affiliate transactions as non-branching activities. This permits an out-of-state bank to engage in limited activity in Pennsylvania without Department approval.
Section 904(b) rescinds the prior requirement that, in order for a foreign bank to establish a branch in Pennsylvania, the state in which the foreign bank was chartered had to provide reciprocal rights for a Pennsylvania bank. Such reciprocity provisions are no longer necessary because section 613 of Dodd-Frank did away with the reciprocity requirement by amending the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994. In addition, section 613 provides that a national bank or a state-insured bank can establish a branch wherever a state bank can have a branch. Thus, institutions that want to establish branches in other states no longer need to worry about whether the foreign state has reciprocal banking laws.
In addition, institutions no longer need to obtain Department approval to close branch locations. Institutions that want to cease operations at a branch location must simply provide notice to the Department of such branch closure.
In order for a financial institution incorporated under the laws of another state or the United States to convert to a Pennsylvania state-chartered institution, the institution must meet certain minimum capital requirements. Section 1102(b) has been amended to repeal a table that established the minimum capital requirements for an institution based on the population where the institution’s principal place of business will be located. Now, the minimum capital requirements for an institution to convert shall be set by, and will be at the discretion of, the Department. This means that the minimum capital amount could be significantly higher than the previous requirements established by the population table. Also, this means that a certificate of authorization to do business will not be issued by the Department until the converting institution meets those specified minimum capital requirements.
10. Clarifications on mergers The Banking Code Amendments clarify institution merger procedures by: (i) eliminating any ambiguity as to an institution’s ability to pay dividend earnings "acquired as a result of a merger and transferred to surplus" so long as such earnings are used within seven years of the date of the merger; (ii) closing loopholes as to the types of entities that could merge in Pennsylvania and whose net earnings prior to a merger were not transferred to capital or surplus of the resulting institution; and (iii) expanding the list of entities that may merge or consolidate into state-chartered institutions. These amendments combine to expand the scope of merger opportunities available in Pennsylvania.
The Banking Code Amendments made a number of technical amendments as part of the goal of streamlining the regulatory requirements for financial institutions conducting business in Pennsylvania. Such amendments include (i) expanding the powers of savings banks regarding the pledge of deposits and limits on indebtedness to one customer to mirror changes to the general powers of banks; (ii) providing for the ability to name an unlimited number of beneficiaries on trust deposit accounts; (iii) requiring that an institution’s principal place of business be located within the Commonwealth of Pennsylvania; (iv) requiring that audits of savings banks be conducted by certified public accountants pursuant to standards set forth by the Department in the same manner the Department requires for other regulated institutions; (v) removing all references to "national banks" in the Banking Code consistent with federal preemption and Dodd-Frank, and to eliminate confusion for national banks and consumers; (vi) eliminating all requirements that banks use a corporate seal; and (vii) streamlining the definition of savings bank lending powers.
The changes appear to make Pennsylvania a more competitive place for banks to do business, while granting the Department the authority to ensure that entities and individuals involved in the banking industry conduct themselves with the highest degree of responsibility and integrity.
Amendments to the Loan Interest and Protection Law ("LIPL"), 41 P.S. § 101 et seq.
The shortest of the three bills, H.B. 2370, amended Pennsylvania’s civil usury statute to remove provisions deemed to be duplicative of federal law. Section 301 of the LIPL, relating to residential mortgage interest rates, provided that variable interest rate transactions are permissible so long as the documents evidencing the debt comply with sets of variable rate limitations and disclosures. The LIPL Amendments delete several of these variable rate restrictions, including the notice of rate change, a variable rate disclosure for the note and mortgage, and an application disclosure.
Many lenders had deemed all of these LIPL variable rate provisions to be of little relevance as other federal or Pennsylvania variable rate laws applied. The LIPL Amendments repealed provisions of section 301(e) that were deemed duplicative of Federal Regulation Z (the implementing regulation for the Truth-in-Lending Act), which has similar variable rate requirements. Also, until 2008, the LIPL’s coverage was limited to loans of up to $50,000. Now the LIPL covers mortgage loans of up to $230,110.
In addition, the LIPL had previously empowered most state institutions (and now savings banks) to charge the rate of interest available to a national bank under 12 U.S.C. § 85. Now, state institutions can charge rates as authorized by "other applicable Federal or State law." It will be interesting to see how the Department or a court views this new language.
The stated intent of the three bill legislative package was to modernize and streamline the bank regulatory scheme in Pennsylvania, improve Pennsylvania’s competiveness in the banking industry, and comply with applicable provisions of Dodd-Frank. In many ways the legislative package achieves these goals by repealing outdated provisions, increasing the Department’s ability to levy civil money penalties, and expanding the scope of powers and entities that may conduct business in Pennsylvania. Pennsylvania may become a more desirable location to conduct banking business while ensuring that its laws and regulations are enforced.


During its October 2018 term, the U.S. Supreme Court will hear Lorenzo v. Securities and Exchange Commission, which should settle a circuit split on liability for three simple acts – cut, paste and send – done at another person’s direction. After this decision, broker-dealers and others in the industry will better understand the scope of Rule 10b-5. Shareholders also should pay close attention, as the ability to privately sue certain actors for fraudulent statements and related acts could be affected.
It all began when Francis Lorenzo cut some text, pasted it into an email and clicked “send.” Lorenzo was the director of investment banking at Charles Vista, LLC, an SEC-registered broker-dealer. In that capacity, Lorenzo’s duties involved conducting due diligence on his clients, including reviewing their financial statements and public filings. In September 2009, Charles Vista served as the exclusive placement agent for a startup company’s $15 million convertible debenture offering. The following month, the company issued two public filings indicating that (1) its technological asset, a gasification technology, was valueless; (2) there was a total impairment of its intangible assets; and (3) the company’s total assets were valued at approximately $370,000. These public filings were a reflection of the failed gasification technology.
There is no dispute that Lorenzo had access to the public filings that revealed a significant decline in the company’s financial health. There is also no dispute that prior to the release of the public filings, Lorenzo cautioned his boss about offering a $15 million convertible debenture for a company that had no assets to liquidate to protect its investors in the event of default. Nevertheless, sometime thereafter Lorenzo emailed two investors stating that (1) the company had more than $10 million in confirmed assets; (2) the purchase orders and letters of interest totaled over $43 million and (3) Charles Vista would raise additional monies to repay debenture holders, if necessary. All three statements were false. Moreover, these emails were actually typed by Lorenzo’s boss and sent to Lorenzo with the directive to send them to the two investors, which he did. Both emails noted that they were being sent at the request of Lorenzo’s boss. The primary question, then, is whether Lorenzo’s “cut, paste and send” can make him liable for making untrue statements in violation of Rule 10b-5(b). And if he cannot be found liable for making untrue statements, can he be found liable for employing a scheme to defraud or for engaging in an act that operates to defraud?
[i]t shall be unlawful for any person directly or indirectly … (a) [t]o employ any device, scheme or artifice to defraud, (b) [t]o make any untrue statement of a material fact … or (c) [t]o engage in any act … which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.
17 C.F.R. 240.10b-5 (emphasis added). The SEC did not charge Lorenzo with aiding or abetting a fraudulent act.
The SEC prevailed against Lorenzo in administrative proceedings where the judge found Lorenzo violated all three subsections of Rule 10b-5. The judge imposed stiff penalties, including banning Lorenzo from the industry for life. He appealed to the full commission, but it sustained the administrative judge’s decision, finding that Lorenzo knew the statements in the emails were false and misleading when he sent them. Lorenzo took an appeal to the Court of Appeals for the District of Columbia Circuit, but he lost once again, in a 2-1 decision.
Relying on guidance in Janus Capital Group Inc. v. First Derivative Traders, a 2011 Supreme Court decision, the court decided Lorenzo did not “make” a statement under subsection (b) of Rule 10b-5, because he had no authority and control over the statement. “One ‘makes’ a statement by stating it … For purposes of Rule 10b–5, … One who prepares or publishes a statement on behalf of another is not its maker.” Janus Capital Group, Inc. v. First Derivative Traders, 564 U.S. 135, 142-143 (2011) (emphasis added). The court found, however, Lorenzo’s conduct of transmitting misinformation directly to the investors, making his involvement transparent, violative of Rule 10b-5 subsections (a) and (c). This made him liable as a fraudulent schemer under an aiding and abetting or substantial assistance theory, a holding the majority cited as supported under Janus. See Janus, 564 U.S. at 143 (“Rule 10b-5’s private right of action does not include suits against aiders and abettors. Such suits – against entities that contribute ‘substantial assistance’ to the making of a statement but do not actually make it – may be brought by the SEC, see 15 U.S.C.A. § 78t(e), but not by private parties.”) (emphasis added).
In dissent, Judge Brett Kavanaugh (who is now an Associate Justice of the U.S. Supreme Court) opined that Lorenzo could not be deemed a schemer, because the statements were made by his boss – not him. In other words, the SEC should have been required to show more than a misstatement in proving that Lorenzo violated Rule 10b-5(a) and (c). According to Judge Kavanaugh, holding otherwise equates to “legal jujitsu” and eliminates the distinction between primary liability (direct violation) and secondary liability (aiding and abetting). Judge Kavanaugh harshly criticized the SEC, claiming it is attempting to “unilaterally rewrite the law” and “expand the scope of primary liability under securities law.” Judge Kavanaugh’s position has commanded majorities of panels in the Second, Eighth and Ninth Circuits.
While Lorenzo is simply looking for removal of the penalty imposed on him, the industry will be watching for how the court might clarify the scope of Janus and the distinctions between primary and secondary liability under Rule 10b-5, particularly as it applies to actions instituted by the SEC. Either way, it will be interesting to watch as the Supreme Court reviews the three simple acts of cutting, pasting and sending an email, and delivers an opinion that could ignite a significant change in the securities and white-collar landscape as a whole. Stay tuned.
 See, e.g., Public Pension Fund Group v. KV Pharmaceutical Co., 679 F.3d 972, 987 (8th Cir. 2012); WPP Luxembourg Gamma Three Sarl v. Spot Runner, Inc., 655 F.3d 1039, 1057 (9th Cir. 2011); Lentell v. Merrill Lynch & Co., 396 F.3d 161, 177 (2d Cir. 2005).
Kristen M. Gibbons Feden is an associate at Stradley Ronon and concentrates her practice on general and complex commercial litigation, employment discrimination, SEC enforcement, internal investigations, Title IX compliance and corporate compliance.
Michael J. Engle is the Chair of the White Collar Defense, Internal Investigations and Corporate compliance group at Stradley Ronon. He represents clients in state and federal criminal cases, complex white-collar defense matters, internal or parallel investigations, as well as select civil litigation matters typically involving the defense of qui tam/False Claims Act complaints.
Posted in Alumni Comments, Legal Developments, Securities Law and tagged Aiding and Abetting, Antifraud Provisions, Broker-Dealer, Charles Vista, Cut, DC Circuit, Debenture, Due Diligence, Email, Finance, Fraudulent Statements, LLC, Lorenzo, Paste, Public Filings, Rule 10b-5, SCOTUS, SEC, Securities, Securities and Exchange Commission, Send, Shareholders, Substantial Assistance Theory, U.S. Supreme Court, Untrue Statements. Bookmark the permalink.


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1. 21605. Adulteration of blueberries. U. S. v. 10 1/2 Crates of Blueberries. Default decree of condemnation, forfeiture, and destruction.
2. 21626. Adulteration of cauliflower. U. S. v. 35 Crates of Cauliflower. Default decree of condemnation, forfeiture, and destruction..
3. 21628. Adulteration of coconuts. U. S. v. 277 Bags of Coconuts. Default decree of condemnation, forfeiture, and destruction.
4. 21633. Misbranding of canned boneless chicken. U. S. v. 19 1/2 Dozen Jars of Canned Chicken. Consent decree of condemnation and forfeiture. Product released under bond to be relabeled.
5. 21649. Misbranding of salad oil. U. S. v. 22 Dozen Glass Jars and 54 Cases of Salad Oil. Default decrees of condemnation, forfeiture, and destruction.
6. 21670. Misbranding of oil. U. S. v. 32 Cans of Oil. Default decree of condemnation, forfeiture, and destruction.
7. 21739-a Adulteration of canned huckleberries. U. S. v. 63 Cases, et al., of Canned Huckleberries. Default decrees of condemnation, forfeiture, and destruction.
8. 21768. Adulteration of apples. U. S. v. 29 Bushel Baskets of Apples. Default decree of condemnation, forfeiture, and destruction.
9. 21774. Adulteration of canned shrimp. U. S. v. 200 Cases of Canned Shrimp. Decree of condemnation and forfeiture. Product released under bond for separation and destruction of bad portions.
10. 21781. Adulteration and misbranding of Phenlin Oris. U. S. v. John H. Wood Co. Plea of guilty. Fine, $75.

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United States 12 March 2015 New York Supreme Court, Suffolk County (U.S. Nonwovens Corp. v. Pack Line Corp.
CASE NAME: U.S. Nonwovens Corp. v. Pack Line Corp. and Nuspark Engineering, Inc.
Background: Buyer of custom automatic filling and sealing machine brought action against seller and manufacturer of machine’s conveyor system component, alleging breach of contract, breach of implied covenant of good faith and fair dealing, breach of express warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness, and unjust enrichment. Manufacturer moved to dismiss for failure to state a claim.
Breach of contract claim under the CISG accrued when installation of unit was complete, rather than upon delivery.
Motion granted in part and denied in part.
Fact that buyer’s complaint did not mention United Nations Convention on Contracts for the International Sale of Goods (CISG) was not fatal to its claims for breach of contract and breach of express and implied warranty against manufacturer of conveyor system component for custom automatic filling and sealing machine, since complaint sufficiently alleged breach of contract and breach of warranty claims under the CISG. United Nations Convention on Contracts for the International Sale of Goods, Art. 1 et seq., 15 U.S.C.A.App.
The elements of a breach of contract claim are the same under the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the Uniform Commercial Code (UCC); a plaintiff must show (1) the existence of a valid and enforceable contract containing both definite and certain terms, (2) performance by plaintiff, (3) breach by defendant and (4) resultant injury to plaintiff. United Nations Convention on Contracts for the International Sale of Goods, Art. 1 et seq., 15 U.S.C.A.App.; McKinney’s Uniform Commercial Code � 2–101 et seq.
Under New York law, the elements of a cause of action for breach of contract are (1) formation of a contract between plaintiff and defendant, (2) performance by plaintiff, (3) defendant’s failure to perform, (4) resulting damage.
United Nations Convention on Contracts for the International Sale of Goods (CISG) preempted unjust enrichment claim by buyer of custom automatic filling and sealing machine brought action against manufacturer of machine’s conveyor system component, where express contract existed between buyer and manufacturer. United Nations Convention on Contracts for the International Sale of Goods, Art. 1 et seq., 15 U.S.C.A.App.
Buyer’s claim for breach of implied covenant of good faith and fair dealing against manufacturer of conveyor system component for custom automatic filling and sealing machine would be dismissed as duplicative of breach of contract claim under United Nations Convention on Contracts for the International Sale of Goods (CISG), since it was based on the same underlying facts. United Nations Convention on Contracts for the International Sale of Goods, Art. 1 et seq., 15 U.S.C.A.App.
Buyer of custom automatic filling and sealing machine sufficiently alleged that it gave notice of lack of conformity to manufacturer of machine’s conveyor system component, as required by United Nations Convention on Contracts for the International Sale of Goods (CISG), where it alleged that immediately upon delivery, it made numerous complaints about the defective machine to manufacturer. United Nations Convention on Contracts for the International Sale of Goods, Art. 1 et seq., 15 U.S.C.A.App.
In moving to dismiss a cause of action as barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired; the burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether the action was actually commenced within the applicable limitations period. McKinney’s CPLR 3211(a)(5).
To make a prima facie showing, on motion to dismiss, that time within which to commence an action has expired, defendant must establish, inter alia, when the plaintiff’s cause of action accrued. McKinney’s CPLR 3211(a)(5).
Buyer’s breach of contract claim under the United Nations Convention on Contracts for the International Sale of Goods (CISG) against manufacturer of custom automatic filling and sealing machine accrued, triggering Uniform Commercial Code’s (UCC) four-year limitations applicable to actions for breach of contract for sale, when installation of unit was complete, rather than upon delivery of machine, since parties’ agreement clearly and unequivocally obligated manufacturer to perform the installation and commissioning of the integrated machine. United Nations Convention on Contracts for the International Sale of Goods, Art. 1 et seq., 15 U.S.C.A.App.; McKinney’s Uniform Commercial Code � 2–725.
Certilman Balin Adler & Hyman, LLP, M. Allan Hyman, Esq., Paul B. Sweeney, Esq., East Meadow, Attorney for Plaintiff.
Sichenzia Ross Friedman Ference LLP, Christopher P. Milazzo, Esq., New York, Attorney for Defendant.
Opinion by: EMILY PINES, J.
In this action to recover damages for, among other things, breach of contract and breach of warranty, defendant Nuspark Engineering, Inc. (“Nuspark”) moves (Mot. Seq. 002), pursuant to CPLR 3211 to dismiss the plaintiff’s complaint as asserted against it. The plaintiff opposes the motion.
In March 2009, the plaintiff U.S. Nonwovens Corp. (“Plaintiff”) entered into separate agreements with defendant Pack Line Corp. (“Pack Line”) and defendant Nuspark Engineering Corp. (“Nuspark”) for the purchase of a custom automatic filling and sealing machine (“Auto Tubber”) for use in its business of producing non-woven products including sanitary disposables and wipes. The Auto Tubber was to be comprised of several distinct components, with a conveyor system designed and manufactured by Nuspark. Plaintiff agreed to pay Nuspark $150,000 for the conveyor and installation and commissioning of the integrated machine.
On May 21, 2014, Plaintiff commenced this action against Pack Line and Nuspark. Plaintiff alleges, among other things, that “[b]etween in or around December 2009 and August 2010, the Auto Tubber was delivered, set up, installed and tested in [Plaintiff’s] facility.” Plaintiff also alleges that “[u]pon completion of installation, Pack Line tested the Auto Tubber, and it was immediately apparent that the machine was completely defective and unsatisfactorily manufactured.” Plaintiff further alleges that “[i]mmediately upon delivery, [Plaintiff] made numerous complaints about the defective Auto Tubber to Pack Line and Nuspark.” Plaintiff asserts causes of action for breach of contract, breach of the implied covenant of good faith, breach of express warranty, breach of the implied warranty of merchantability, breach of the implied warranty of fitness, and unjust enrichment.
Nuspark now moves to dismiss the Verified Complaint as asserted against it. Nuspark initially contends that Plaintiff’s claims against it pursuant to New York State law fail to state causes of action because they are preempted by the United Nations Convention on Contracts for the International Sale of Goods (“CISG”). Additionally, Nuspark argues that Plaintiff’s claims are barred under the CISG because Plaintiff failed to notify Nuspark of any alleged nonconformity of the conveyor designed and manufactured by Nuspark prior to the commencement of this action. Finally, Nuspark contends that Plaintiff’s contractual claims are barred by the statute of limitations.
In opposition, Plaintiff concedes that the CISG applies to its contract with Nuspark and that it preempts its state law contract claims. However, Plaintiff argues that dismissal is not warranted because valid substantive claims for breach of contract, breach of implied covenant of good faith, and breach of implied and express warranty have been stated under New York law *871 and the UCC, which satisfies the similar substantive requirements under the CISG for such claims. Plaintiff contends that its Verified Complaint sufficiently alleges that it provided the requisite notice to Nuspark of the lack of conformity of the conveyor by alleging that “[i]mmediately upon delivery [Plaintiff] made numerous complaints about the defective Auto Tubber to ... Nuspark.” Finally, Plaintiff argues that its claims were commenced within the applicable four-year statute of limitations as its claims did not accrue under tender of delivery was complete which, Plaintiff alleges, occurred in August 2010 when the contractually required delivery, installation, integration and testing of the Auto Tubber were completed.
The complaint must be liberally construed and the plaintiff given the benefit of every favorable inference (citations omitted). The court must also accept as true all of the facts alleged in the complaint and any factual submissions made in opposition to the motion (citations omitted). If the court can determine that the plaintiff is entitled to relief on any view of the facts stated, its inquiry is complete and the complaint must be declared legally sufficient (citations omitted). While factual allegations contained in the complaint are deemed true, bare legal conclusions and facts flatly contradicted on the record are not entitled to a presumption of truth (citations omitted). (Symbol Tech., Inc. v. Deloitte & Touche, LLP, 69 A.D.3d 191, 193–195, 888 N.Y.S.2d 538 [2d Dept.2009] ).
   Here, as mentioned above, Plaintiff concedes that the CISG applies and preempts its state law contract claims. Thus, the issue is whether the claims as asserted in the Verified Complaint should be dismissed because they fail to state causes of action. The Court agrees with Plaintiff that dismissal of the claims for breach of contract and breach of express and implied warranties is not warranted. “The elements of a breach of contract claim are the same [under the CISG and the UCC]; a [plaintiff] must show: ‘(1) the existence of a valid and enforceable contract containing both definite and certain *872 terms, (2) performance by plaintiff, (3) breach by defendant and (4) resultant injury to plaintiff.’ ” (Maxxsonics USA, Inc. v. Fengshun Peiying Electro Acoustic Co., Ltd., 2012 WL 962698, U.S. Dist. Ct., N.D.IL., March 21, 2012, Leinenweber, J., quoting Magellan Intern. Corp. v. Salzgitter Handel GmbH, 76 F.Supp.2d 919, 924 (N.D.Ill.1999)). Under New York law, “[t]he elements of a cause of action for breach of contract are (1) formation of a contract between plaintiff and defendant, (2) performance by plaintiff, (3) defendant’s failure to perform, (4) resulting damage” (2 N.Y. PJI2d 4:1, at 676  ). Additionally, although the CISG does not specifically include the implied warranties of fitness and merchantability, CISG Article 35 may properly be read to suggest them (Norfolk Southern Railway Co. v. Power Source Supply, Inc., 2008 WL 2884102, U.S. Dist. Ct., W.D.Pa., July 25, 2008, Gibson, J.; Electrocraft Arkansas, Inc. v. Super Elec. Motors, Ltd., 2009 WL 5181854, U.S. Dist. Ct., E.D.Ark., Dec. 23, 2009, Wright, J.). The fact that the Verified Complaint does not mention the CISG is not fatal to Plaintiff’s claims for breach of contract and breach of express and implied warranties (see Citgo Petroleum Corp. v. Odfjell Seachem, 2013 WL 2289951, U.S. Dist. Ct., S.D.Tex., May 23, 2013, Miller, J.), as the Verified Complaint sufficiently alleges breach of contract and breach of warranty claims under the CISG (Id.; Electrocraft Arkansas, Inc. v. Super Elec. Motors, Ltd., 2009 WL 5181854, U.S. Dist. Ct., E.D.Ark., Dec. 23, 2009, Wright, J.). Accordingly, to the extent that Nuspark’s seeks dismissal, pursuant to CPLR 3211(a)(7), of the claims for breach of contract, breach of express warranty, breach of the implied warranty of merchantability, and breach of the implied warranty of fitness, the motion is denied.
  However, because an express contract exists between Plaintiff and Nuspark, the CISG preempts Plaintiff’s claim for unjust enrichment and such is dismissed (see Semi–Materials Co., Ltd. v. MEMC Elec. Materials, Inc., U.S. Dist. Ct., E.D.Mo., Jan. 10, 2011, Buckles, M.J.). Similarly, Plaintiff’s claim for breach of the implied covenant of good faith is also dismissed because it is duplicative of the claim for breach of contract as it is based on the same underlying facts (see Weihai Textile Group Import & Export Co., Ltd. v. Level 8 Apparel, LLC, 2014 WL 1494327, U.S. Dist. Ct., S.D.N.Y., March 28, 2014, Carter, J.).
 Although Nuspark cites no authority in support of its contention that a plaintiff must plead compliance with the notice requirement of Article 39 of the CISG, the Verified Complaint sufficiently alleges notice of lack of conformity to Nuspark as Plaintiff alleges that immediately upon delivery it made numerous complaints about the defective Auto Tubber to Nuspark. Thus, that branch of Nuspark’s motion which seeks to dismiss the claims as asserted against it pursuant to CPLR 3211(a)(7) because Plaintiff failed plead that it gave notice of lack of conformity to Nuspark is denied.
  “In moving to dismiss a cause of action as barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired (see Jalayer v. Stigliano, 94 A.D.3d 702, 703, 941 N.Y.S.2d 243; Fleetwood Agency, Inc. v. Verde Elec. Corp., 85 A.D.3d 850, 925 N.Y.S.2d 576; Rakusin v. Miano, 84 A.D.3d 1051, 923 N.Y.S.2d 334). The burden then shifts to the plaintiff to raise a question of fact as to *873 whether the statute of limitations was tolled or was otherwise inapplicable, or whether the action was actually commenced within the applicable limitations period (see Jalayer v. Stigliano, 94 A.D.3d at 703, 941 N.Y.S.2d 243; Williams v. New York City Health & Hosps. Corp., 84 A.D.3d 1358, 923 N.Y.S.2d 908). To make a prima facie showing, the defendant must establish, inter alia, when the plaintiff’s cause of action accrued (see Swift v. New York Med. Coll., 25 A.D.3d 686, 687, 808 N.Y.S.2d 731).” (Loiodice v. BMW of N. America, LLC, 125 A.D.3d 723, 4 N.Y.S.3d 102 [2d Dept.2015] ).
(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
ORDERED that a preliminary conference before the Court is hereby scheduled for April 6, 2015, at 10:00 a.m.

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29.24.010 Definitions — "Convention" and "election jurisdiction."
Recodified as RCW 29A.20.110 pursuant to 2003 c 111 § 2401, effective July 1, 2004.
29.24.020 Nomination by convention or write-in — Dates — Special filing period.
Recodified as RCW 29A.20.120 pursuant to 2003 c 111 § 2401, effective July 1, 2004.
Recodified as RCW 29A.20.130 pursuant to 2003 c 111 § 2401, effective July 1, 2004.
29.24.030 Requirements for validity of convention.
Recodified as RCW 29A.20.140 pursuant to 2003 c 111 § 2401, effective July 1, 2004.
29.24.035 Nominating petition — Requirements.
Recodified as RCW 29A.20.150 pursuant to 2003 c 111 § 2401, effective July 1, 2004.
29.24.040 Certificate of nomination — Requisites.
Recodified as RCW 29A.20.160 pursuant to 2003 c 111 § 2401, effective July 1, 2004.
29.24.045 Multiple certificates of nomination.
Recodified as RCW 29A.20.170 pursuant to 2003 c 111 § 2401, effective July 1, 2004.
29.24.050 Certificate of nomination — What signatures invalid.
Repealed by 1989 c 215 § 9.
29.24.055 Presidential electors — Selection at convention.
Recodified as RCW 29A.20.180 pursuant to 2003 c 111 § 2401, effective July 1, 2004.
29.24.060 Certificate of nomination — Checking signatures — Appeal of determination.
Recodified as RCW 29A.20.190 pursuant to 2003 c 111 § 2401, effective July 1, 2004.
29.24.070 Declarations of candidacy required, exceptions — Payment of fees.
Recodified as RCW 29A.20.200 pursuant to 2003 c 111 § 2401, effective July 1, 2004.
29.24.075 Time for filing declarations of candidacy.
29.24.080 Filing dates for certificates and declarations.
Repealed by 1977 ex.s. c 329 § 18.
29.24.090 Transmittal of minor party nominations.
29.24.100 Nominating certificates for offices for which primaries are not required.
Repealed by 1955 c 102 § 9.
Repealed by 1975-'76 2nd ex.s. c 120 § 15.


5.6.1 Institutional Review Board Any generalizable research involving human subjects by a member of the campus community (faculty, students, staff) must, by federal and state regulations, be reviewed and approved by the University’s Institutional Review Board (IRB). The role of the IRB is to ensure that such research conducted at the University meets current standards and mandates regarding the ethical treatment of research participants. The University’s IRB Manual of Policies and Procedures provides details about the policies and procedures that apply to human subjects research at the University, and is available at www.umw.edu/cas/acaffairs/institutional_review_board/default.php.
When hiring a faculty member in a full-time instructional position, the University presumes that it has full claim upon the working time and professional energies of the individual for his or her teaching and for other University-related activities. Accordingly, outside professional activities must clearly be subordinated to and must not interfere with the individual’s obligations to the University. Outside or other employment (defined as a faculty member’s engagement with financial gain in any job, private business, or the conduct of any profession, other than University business, during the contract year) may be sought out and entered into by faculty members, provided that (1) the employment does not interfere with the individual’s assigned duties and obligations to the University, and (2) the employment does not constitute a conflict of interest (see §5.6.4). To protect the faculty member from possible criticism regarding conflicts of interest, a written request for approval prior to taking long-term (e.g. one semester or more) outside employment must be submitted to and approved by the department chair and the dean. Notice of such approval will be given by the return to the faculty member of a signed and dated copy of the written request with a copy to the Provost. Colleges may establish additional procedures, consistent with this policy and standards of their disciplines, regarding engagement in and reporting of outside employment.
5.6.2.1 Conditions Governing Outside Employment and Consulting Activities Consulting arrangements may be sought out and entered into by faculty members, provided that: (a) the assistance provided is not part of their normal responsibility to the University; (b) the work undertaken contributes to their professional development or provides valuable service to the University or the community; (c) University resources and facilities are not involved (see §5.6.2.2); and (d) annual statements regarding consulting arrangements are included with the FAARs. Faculty members engaged in approved paid outside activities other than consulting shall attach statements to their Faculty Annual Activities Reports (FAARs) each year (see §§6.3 and 6.5), indicating both the amount of normal working time allocated to the outside activities and the names of the employers.
5.6.2.2 Use of University Resources in Connection with Outside Employment and Consulting Activities Faculty members are not allowed to use University resources in conjunction with consulting or otherwise for private gain. Also, when a faculty member is engaged in authorized consulting activities, the consulting employer may not enter into a parallel agreement to use University resources for any purpose related to the consulting activity. Instead, when significant resources of the University are required, the employer may request that an agreement, grant, or contract be drawn with the University that provides the necessary services, including personnel services, as a sponsored project (see §5.5.7, External Grants). The faculty member involved then carries out duties attendant on the agreement as part of his or her assigned duties. Because library facilities are made available to the public, their use by faculty engaged in consulting activity is not regarded as being in contravention of this policy.
• A disclaimer is given in court indicating that the faculty member is speaking as a professional and not as a representative of the University.
• When a faculty member is under subpoena, the University civil leave policies apply (see §3.13.6).
• A faculty member may not testify in civil suits involving the Commonwealth of Virginia, except under subpoena.
5.6.4 Conflict of Interest A conflict of interest occurs when a faculty member engages in self-dealing or in other activities which prevent him or her from exercising independent judgment in the best interests of the University and the Commonwealth. Faculty are to avoid participation in activities that create an actual or potential conflict of interest. (See §3.11 for additional details.) Faculty members should avoid being placed in a position of authority over their spouses, intimate partners, immediate family members or relatives concerning their teaching, research and advising assignments. In the event that avoidance of such conflict would be unfair to the student, the faculty member must disclose the matter to the department chair, who will oversee the evaluation process of the student. If the faculty member in question is the department chair, the Dean will oversee the evaluation process.
5.6.5 Policies Addressing Textbook Sales and Bookstores The Code of Virginia §23-4.3:1 states that no employee at a Virginia public college or university shall demand or receive any payment, loan, subscription, advance, deposit of money, services or anything, present or promised, as an inducement for requiring students to purchase a specific textbook required for coursework or instruction; with the exception that the employee may receive (i) sample copies, instructor’s copies, or instructional material, not to be sold; and (ii) royalties or other compensation from sales of textbooks that include such instructor’s own writing or work.