text:
If you are considering an Initial Coin Offering, sometimes referred to as an "ICO," or otherwise engaging in the offer, sale, or distribution of a digital asset, you need to consider whether the U.S. federal securities laws apply. A threshold issue is whether the digital asset is a "security" under those laws. The term "security" includes an "investment contract," as well as other instruments such as stocks, bonds, and transferable shares. A digital asset should be analyzed to determine whether it has the characteristics of any product that meets the definition of "security" under the federal securities laws. In this guidance, we provide a framework for analyzing whether a digital asset has the characteristics of one particular type of security – an "investment contract." Both the Commission and the federal courts frequently use the "investment contract" analysis to determine whether unique or novel instruments or arrangements, such as digital assets, are securities subject to the federal securities laws.
The U.S. Supreme Court's Howey case and subsequent case law have found that an "investment contract" exists when there is the investment of money in a common enterprise with a reasonable expectation of profits to be derived from the efforts of others. The so-called "Howey test" applies to any contract, scheme, or transaction, regardless of whether it has any of the characteristics of typical securities. The focus of the Howey analysis is not only on the form and terms of the instrument itself (in this case, the digital asset) but also on the circumstances surrounding the digital asset and the manner in which it is offered, sold, or resold (which includes secondary market sales). Therefore, issuers and other persons and entities engaged in the marketing, offer, sale, resale, or distribution of any digital asset will need to analyze the relevant transactions to determine if the federal securities laws apply.
The federal securities laws require all offers and sales of securities, including those involving a digital asset, to either be registered under its provisions or to qualify for an exemption from registration. The registration provisions require persons to disclose certain information to investors, and that information must be complete and not materially misleading. This requirement for disclosure furthers the federal securities laws' goal of providing investors with the information necessary to make informed investment decisions. Among the information that must be disclosed is information relating to the essential managerial efforts that affect the success of the enterprise. This is true in the case of a corporation, for example, but also may be true for other types of enterprises regardless of their organizational structure or form. Absent the disclosures required by law about those efforts and the progress and prospects of the enterprise, significant informational asymmetries may exist between the management and promoters of the enterprise on the one hand, and investors and prospective investors on the other hand. The reduction of these information asymmetries through required disclosures protects investors and is one of the primary purposes of the federal securities laws.
In this guidance, we provide a framework for analyzing whether a digital asset is an investment contract and whether offers and sales of a digital asset are securities transactions. As noted above, under the Howey test, an "investment contract" exists when there is the investment of money in a common enterprise with a reasonable expectation of profits to be derived from the efforts of others. Whether a particular digital asset at the time of its offer or sale satisfies the Howey test depends on the specific facts and circumstances. We address each of the elements of the Howey test below.
Courts generally have analyzed a "common enterprise" as a distinct element of an investment contract. In evaluating digital assets, we have found that a "common enterprise" typically exists.
Usually, the main issue in analyzing a digital asset under the Howey test is whether a purchaser has a reasonable expectation of profits (or other financial returns) derived from the efforts of others. A purchaser may expect to realize a return through participating in distributions or through other methods of realizing appreciation on the asset, such as selling at a gain in a secondary market. When a promoter, sponsor, or other third party (or affiliated group of third parties) (each, an "Active Participant" or "AP") provides essential managerial efforts that affect the success of the enterprise, and investors reasonably expect to derive profit from those efforts, then this prong of the test is met. Relevant to this inquiry is the "economic reality" of the transaction and "what character the instrument is given in commerce by the terms of the offer, the plan of distribution, and the economic inducements held out to the prospect." The inquiry, therefore, is an objective one, focused on the transaction itself and the manner in which the digital asset is offered and sold.
Are those efforts "the undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise," as opposed to efforts that are more ministerial in nature?
There are essential tasks or responsibilities performed and expected to be performed by an AP, rather than an unaffiliated, dispersed community of network users (commonly known as a "decentralized" network).
An AP creates or supports a market for, or the price of, the digital asset. This can include, for example, an AP that: (1) controls the creation and issuance of the digital asset; or (2) takes other actions to support a market price of the digital asset, such as by limiting supply or ensuring scarcity, through, for example, buybacks, "burning," or other activities.
The AP distributes the digital asset as compensation to management or the AP's compensation is tied to the price of the digital asset in the secondary market. To the extent these facts are present, the compensated individuals can be expected to take steps to build the value of the digital asset.
Whether the efforts of an AP are no longer affecting the enterprise's success.
An evaluation of the digital asset should also consider whether there is a reasonable expectation of profits. Profits can be, among other things, capital appreciation resulting from the development of the initial investment or business enterprise or a participation in earnings resulting from the use of purchasers' funds. Price appreciation resulting solely from external market forces (such as general inflationary trends or the economy) impacting the supply and demand for an underlying asset generally is not considered "profit" under the Howey test.
The digital asset gives the holder rights to share in the enterprise's income or profits or to realize gain from capital appreciation of the digital asset.
Purchasers reasonably would expect that an AP's efforts will result in capital appreciation of the digital asset and therefore be able to earn a return on their purchase.
The digital assets' creation and structure is designed and implemented to meet the needs of its users, rather than to feed speculation as to its value or development of its network. For example, the digital asset can only be used on the network and generally can be held or transferred only in amounts that correspond to a purchaser's expected use.
Restrictions on the transferability of the digital asset are consistent with the asset's use and not facilitating a speculative market.
Digital assets with these types of use or consumption characteristics are less likely to be investment contracts. For example, take the case of an online retailer with a fully-developed operating business. The retailer creates a digital asset to be used by consumers to purchase products only on the retailer's network, offers the digital asset for sale in exchange for real currency, and the digital asset is redeemable for products commensurately priced in that real currency. The retailer continues to market its products to its existing customer base, advertises its digital asset payment method as part of those efforts, and may "reward" customers with digital assets based on product purchases. Upon receipt of the digital asset, consumers immediately are able to purchase products on the network using the digital asset. The digital assets are not transferable; rather, consumers can only use them to purchase products from the retailer or sell them back to the retailer at a discount to the original purchase price. Under these facts, the digital asset would not be an investment contract.
Even in cases where a digital asset can be used to purchase goods or services on a network, where that network's or digital asset's functionality is being developed or improved, there may be securities transactions if, among other factors, the following is present: the digital asset is offered or sold to purchasers at a discount to the value of the goods or services; the digital asset is offered or sold to purchasers in quantities that exceed reasonable use; and/or there are limited or no restrictions on reselling those digital assets, particularly where an AP is continuing in its efforts to increase the value of the digital assets or has facilitated a secondary market.
 This framework represents the views of the Strategic Hub for Innovation and Financial Technology ("FinHub," the "Staff," or "we") of the Securities and Exchange Commission (the "Commission"). It is not a rule, regulation, or statement of the Commission, and the Commission has neither approved nor disapproved its content. Further, this framework does not replace or supersede existing case law, legal requirements, or statements or guidance from the Commission or Staff. Rather, the framework provides additional guidance in the areas that the Commission or Staff has previously addressed. See, e.g., Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: The DAO (Exchange Act Rel. No. 81207) (July 25, 2017) ("The DAO Report"); William Hinman, Digital Asset Transactions: When Howey Met Gary (Plastic), Remarks at the Yahoo Finance All Markets Summit: Crypto (June 14, 2018), available at https://www.sec.gov/news/speech/speech-hinman-061418.
 The term "digital asset," as used in this framework, refers to an asset that is issued and transferred using distributed ledger or blockchain technology, including, but not limited to, so-called "virtual currencies," "coins," and "tokens."
 The term "security" is defined in Section 2(a)(1) of the Securities Act of 1933 (the "Securities Act"), Section 3(a)(10) of the Securities Exchange Act of 1934, Section 2(a)(36) of the Investment Company Act of 1940, and Section 202(a)(18) of the Investment Advisers Act of 1940.
 This framework is intended to be instructive and is based on the Staff's experiences to date and relevant law and legal precedent. It is not an exhaustive treatment of the legal and regulatory issues relevant to conducting an analysis of whether a product is a security, including an investment contract analysis with respect to digital assets generally. We expect that analysis concerning digital assets as securities may evolve over time as the digital asset market matures. Also, no one factor is necessarily dispositive as to whether or not an investment contract exists.
 SEC v. W.J. Howey Co., 328 U.S. 293 (1946) ("Howey"). See also United Housing Found., Inc. v. Forman, 421 U.S. 837 (1975) ("Forman"); Tcherepnin v. Knight, 389 U.S. 332 (1967) ("Tcherepnin"); SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344 (1943) ("Joiner").
 Whether a contract, scheme, or transaction is an investment contract is a matter of federal, not state, law and does not turn on whether there is a formal contract between parties. Rather, under the Howey test, "form [is] disregarded for substance and the emphasis [is] on economic reality." Howey, 328 U.S. at 298. The Supreme Court has further explained that that the term security "embodies a flexible rather than a static principle" in order to meet the "variable schemes devised by those who seek the use of the money of others on the promise of profits." Id. at 299.
 Issuers of digital assets, like all issuers, must provide full and fair disclosure of material information consistent with the requirements of the federal securities laws. Issuers of digital assets should be guided by the regulatory framework and concepts of materiality. What is material depends upon the nature and structure of the issuer's particular network and circumstances. See TSC Industries v. Northway, 426 U.S. 438, 449 (1976) (a fact is material "if there is a substantial likelihood that a reasonable shareholder would consider it important" in making an investment decision or if it "would have been viewed by the reasonable investor as having significantly altered the 'total mix' of information made available" to the shareholder).
 The lack of monetary consideration for digital assets, such as those distributed via a so-called "bounty program" does not mean that the investment of money prong is not satisfied. As the Commission explained in The DAO Report, "[i]n determining whether an investment contract exists, the investment of 'money' need not take the form of cash" and "in spite of Howey's reference to an 'investment of money,' it is well established that cash is not the only form of contribution or investment that will create an investment contract." The DAO Report at 11 (citation omitted). See In re Tomahawk Exploration LLC, Securities Act Rel. 10530 (Aug. 14, 2018) (issuance of tokens under a so-called "bounty program" constituted an offer and sale of securities because the issuer provided tokens to investors in exchange for services designed to advance the issuer's economic interests and foster a trading market for its securities). Further, the lack of monetary consideration for digital assets, such as those distributed via a so-called "air drop," does not mean that the investment of money prong is not satisfied; therefore, an airdrop may constitute a sale or distribution of securities. In a so-called "airdrop," a digital asset is distributed to holders of another digital asset, typically to promote its circulation.
 In order to satisfy the "common enterprise" aspect of the Howey test, federal courts require that there be either "horizontal commonality" or "vertical commonality." See Revak v. SEC Realty Corp., 18 F.3d. 81, 87-88 (2d Cir. 1994) (discussing horizontal commonality as "the tying of each individual investor's fortunes to the fortunes of the other investors by the pooling of assets, usually combined with the pro-rata distribution of profits" and two variants of vertical commonality, which focus "on the relationship between the promoter and the body of investors"). The Commission, on the other hand, does not require vertical or horizontal commonality per se, nor does it view a "common enterprise" as a distinct element of the term "investment contract." In re Barkate, 57 S.E.C. 488, 496 n.13 (Apr. 8, 2004); see also the Commission's Supplemental Brief at 14 in SEC v. Edwards, 540 U.S. 389 (2004) (on remand to the 11th Circuit).
 Based on our experiences to date, investments in digital assets have constituted investments in a common enterprise because the fortunes of digital asset purchasers have been linked to each other or to the success of the promoter's efforts. See SEC v. Int'l Loan Network, Inc., 968 F.2d 1304, 1307 (D.C. Cir. 1992).
 SEC v. Glenn W. Turner Enter., Inc., 474 F.2d 476, 482 (9th Cir.), cert. denied, 414 U.S. 821, 94 S. Ct. 117, 38 L. Ed. 2d 53 (1973) ("Turner").
 In this guidance, we are using the term "network" broadly to encompass the various elements that comprise a digital asset's network, enterprise, platform, or application.
 We recognize that holders of digital assets may put forth some effort in the operations of the network, but those efforts do not negate the fact that the holders of digital assets are relying on the efforts of the AP. That a scheme assigns "nominal or limited responsibilities to the [investor] does not negate the existence of an investment contract." SEC v. Koscot Interplanetary, Inc., 497 F.2d 473, 483 n.15 (5th Cir. 1974) (citation and quotation marks omitted). If the AP provides efforts that are "the undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise," and the AP is not merely performing ministerial or routine tasks, then there likely is an investment contract. See Turner, 474 U.S. at 482; see also The DAO Report (although DAO token holders had certain voting rights, they nonetheless reasonably relied on the managerial efforts of others). Managerial and entrepreneurial efforts typically are characterized as involving expertise and decision-making that impacts the success of the business or enterprise through the application of skill and judgment.
 Situations where the digital asset is exchangeable or redeemable solely for goods or services within the network or on a platform, and may not otherwise be transferred or sold, may more likely be a payment for a good or service in which the purchaser is motivated to use or consume the digital asset. See discussion of "Other Relevant Considerations."
 See Forman, 421 U.S. at 852-53 (where a purchaser is not "'attracted solely by the prospects of a return' on his investment . . . [but] is motivated by a desire to use or consume the item purchased . . . the securities laws do not apply.").

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


text:
[294 U.S. 511, 512] Mr. Henry S. Manley, of Albany, N.Y., for Baldwin and others.
[294 U.S. 511, 516] Messrs. J. Daniel Dougherty and John J. O'Connor, both of New York, for G. A. F. Seelig, Inc.
Whether and to what extent the New York Milk Control Act (N. Y. Laws 1933, c. 158; Laws 1934, c. 126 (Agriculture and Markets Law N.Y., Consol. Laws, c. 69, 252-258-r)) may be applied against a dealer who has acquired title to the milk as the result of a transaction in interstate commerce is the question here to be determined.
G. A. F. Seelig, Inc. (appellee in No. 604 and appellant in No. 605) is engaged in business as a milk dealer in the city of New York. It buys its milk, including cream, in Fair Haven, Vt., from the Seelig Creamery Corporation, which in turn buys from the producers on the neighboring farms. The milk is transported to New York by rail in 40-quart cans; the daily shipment amounting to about 200 cans of milk and 20 cans of cream. Upon arrival in New York about 90 per cent. is sold to customers in the original cans; the buyers being chiefly hotels, restaurants, and stores. About 10 per cent. is bottled in New York, and sold to customers in bottles. By concession title passes from the Seelig Creamery to G. A. F. Seelig, Inc., at Fair Haven, Vt. For convenience the one company will be referred to as the Creamery and the other as Seelig. [294 U.S. 511, 519] The New York Milk Control Act, with the aid of regulations made thereunder, has set up a system of minimum prices to be paid by dealers to producers. The validity of that system in its application to producers doing business in New York state has supported in our decisions. Nebbia v. New York, 291 U.S. 502 , 54 S.Ct. 505, 89 A.L.R. 1469; Hegeman Farms Corporation v. Baldwin, 293 U.S. 163 , 55 S.Ct. 7. Cf. Borden's Farm Products Co., Inc., v. Baldwin, 293 U.S. 194 , 55 S. Ct. 187. From the farms of New York the inhabitants of the so-called Metropolitan milk district, comprising the city of New York and certain neighboring communities, derive about 70 per cent. of the milk requisite for their use. To keep the system unimpaired by competition from afar, the act has a provision whereby the protective prices are extended to that part of the supply (about 30 per cent.) which comes from other states. The substance of the provision is that, so far as such a prohibition is permitted by the Constitution, there shall be no sale within the state of milk bought outside unless the price paid to the producers was one that would be lawful upon a like transaction within the state. The statute, so far as pertinent, is quoted in the margin, together with supplementary regulations by the Board of Milk Control. 1 [294 U.S. 511, 520] Seelig buys its milk from the Creamery in Vermont at prices lower than the minimum payable to producers in New York. The Commissioner of Farms and Markets refuses to license the transaction of its business unless it signs an agreement to conform to the New York statute and regulations in the sale of the imported product. 2 This the applicant declines to do. Because of that refusal other public officers, parties to these appeals, announce a purpose to prosecute for trading without a license and to recover heavy penalties. This suit has been brought to restrain the enforcement of the act in its application to the complainant; repugnancy being charged between its provisions when so applied and limitations imposed by the Constitution of the United States. United States Consti- [294 U.S. 511, 521] tution, art. 1, 8, cl. 3; Fourteenth Amendment, 1. A District Court of three judges, organized in accordance with section 266 of the Judicial Code (28 U.S.C. 380 (28 USCA 380)), has granted a final decree restraining the enforcement of the act in so far as sales are made by the complainant while the milk is in the cans or other original packages in which it was brought into New York, but refusing an injunction as to milk taken out of the cans for bottling, and thereafter sold in bottles. See opinion on application for interlocutory injunction, 7 F.Supp. 776; and cf. 293 U.S. 522 , 55 S.Ct. 120, 79 L.Ed. --, October 15, 1934. The case is here on cross-appeals. 28 U.S.C. 380 (28 USCA 380).
First. An injunction was properly granted restraining the enforcement of the act in its application to sales in the original packages.
New York has no power to project its legislation into Vermont by regulating the price to be paid in that state for milk acquired there. So much is not disputed. New York is equally without power to prohibit the introduction within her territory of milk of wholesome quality acquired in Vermont, whether at high prices or at low ones. This again is not disputed. Accepting those postulates, New York asserts her power to outlaw milk so introduced by prohibiting its sale thereafter if the price that has been paid for it to the farmers of Vermont is less than would be owing in like circumstances to farmers in New York. The importer in that view may keep his milk or drink it, but sell it he may not.
Such a power, if exerted, will set a barrier to traffic between one state and another as effective as if customs duties, equal to the price differential, had been laid upon the thing transported. Imposts or duties upon commerce with other countries are placed, by an express prohibition of the Constitution, beyond the power of a state, 'except what may be absolutely necessary for executing its inspec- [294 U.S. 511, 522] tion Laws.' Constitution, art. 1, 10, cl. 2; Woodruff v. Parham, 8 Wall. 123. Imposts and duties upon interstate commerce are placed beyond the power of a state, without the mention of an exception, by the provision committing commerce of that order to the power of the Congress. Constitution, art. 1, 8, cl. 3. 'It is the established doctrine of this court that a state may not, in any form or under any guise, directly burden the prosecution of interstate business.' International Textbook Co. v. Pigg, 217 U.S. 91, 112 , 30 S.Ct. 481, 487, 27 L.R.A.(N.S.) 493, 18 Ann.Cas. 1103; and see Brennan v. Titusville, 153 U.S. 289 , 14 S. Ct. 829; Brown v. Houston, 114 U.S. 622 , 5 S.Ct. 1091; Webber v. Virginia, 103 U.S. 344 , 351; Kansas City Southern R. Co. v. Kaw Valley Drainage District, 233 U.S. 75, 79 , 34 S.Ct. 564. Nice distinctions have been made at times between direct and indirect burdens. They are irrelevant when the avowed purpose of the obstruction, as well as its necessary tendency, is to suppress or mitigate the consequences of competition between the states. Such an obstruction is direct by the very terms of the hypothesis. We are remainded in the opinion below that a chief occasion of the commerce clauses was 'the mutual jealousies and aggressions of the States, taking form in customs barriers and other economic retaliation.' Farrand, Records of the Federal Convention, vol. II, p. 308; vol. III, pp. 478, 547, 548; the Federalist, No. XLII; Curtis, History of the Constitution, vol. 1, p. 502; Story on the Constitution, 259. If New York, in order to promote the economic welfare of her farmers, may guard them against competition with the cheaper prices of Vermont, the door has been opened to rivalries and reprisals that were meant to be averted by subjecting commerce between the states to the power of the nation.
The argument is pressed upon us, however, that the end to be served by the Milk Control Act is something more than the economic welfare of the farmers or of any other [294 U.S. 511, 523] class or classes. The end to be served is the maintenance of a regular and adequate supply of pure and wholesome milk; the supply being put in jeopardy when the farmers of the state are unable to earn a living income. Nebbia v. New York, supra. Price security, we are told, is only a special form of sanitary security; the economic motive is secondary and subordinate; the state intervenes to make its inhabitants healthy, and not to make them rich. On that assumption we are asked to say that intervention will be upheld as a valid exercise by the state of its internal police power, though there is an incidental obstruction to commerce between one state and another. This would be to eat up the rule under the guise of an exception. Economic welfare is always related to health, for there can be no health if men are starving. Let such an exception be admitted, and all that a state will have to do in times of stress and strain is to say that its farmers and merchants and workmen must be protected against competition from without, lest they go upon the poor relief lists or perish altogether. To give entrance to that excuse would be to invite a speedy end of our national solidarity. The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.
We have dwelt up to this point upon the argument of the state that economic security for farmers in the milk shed may be a means of assuring to consumers a steady supply of a food of prime necessity. There is, however, another argument which seeks to establish a relation between the well-being of the producer and the quality of the product. We are told that farmers who are underpaid will be tempted to save the expense or sanitary precautions. This temptation will affect the farmers outside [294 U.S. 511, 524] New York as well as those within it. For that reason, the exclusion of milk paid for in Vermont below the New York minimum will tend, it is said, to impose a higher standard of quality and thereby promote health. We think the argument will not avail to justify impediments to commerce between the states. There is neither evidence nor presumption that the same minimum prices established by order of the board for producers in New York are necessary also for producers in Vermont. But apart from such defects of proof, the evils springing from uncared for cattle must be remedied by measures of repression more direct and certain than the creation of a parity of prices between New York and other states. Appropriate certificates may be exacted from farmers in Vermont and elsewhere (Mintz v. Baldwin, 289 U.S. 346 , 53 S.Ct. 611; Reid v. Colorado, 187 U.S. 137 , 23 S.Ct. 92); milk may be excluded if necessary safeguards have been omitted; but commerce between the states is burdened unduly when one state regulates by indirection the prices to be paid to producers in another, in the faith that augmentation of prices will lift up the level of economic welfare, and that this will stimulate the observance of sanitary requirements in the preparation of the product. The next step would be to condition importation upon proof of a satisfactory wage scale in factory or shop, or even upon proof of the profits of the business. Whatever relation there may be between earnings and sanitation is too remote and indirect to justify obstructions to the normal flow of commerce in its movement between states. Cf. Asbell v. Kansas, 209 U.S. 251, 256 , 28 S.Ct. 485, 14 Ann.Cas. 1101; Hannibal & St. J. Railroad Co. v. Husen, 95 U.S. 465 , 472. One state may not put pressure of that sort upon others to reform their economic standards. If farmers or manufacturers in Vermont are abandoning farms or factories, or are failing to maintain them properly, the Legislature of Vermont and not that of New York must supply the fitting remedy. [294 U.S. 511, 525] Many cases from our reports are cited by counsel for the state. They do not touch the case at hand. The line of division between direct and indirect restraints of commerce involves in its marking a reference to considerations of degree. Even so, the borderland is wide between the restraints upheld as incidental and those attempted here. Subject to the paramount power of the Congress, a state may regulate the importation of unhealthy swine or cattle (Asbell v. Kansas, supra; Mintz v. Baldwin, supra) or decayed or noxious foods. Crossman v. Lurman, 192 U.S. 189 , 24 S. Ct. 234; Savage v. Jones, 225 U.S. 501 , 32 S.Ct. 715; Price v. Illinois, 238 U.S. 446 , 35 S.Ct. 892. Things such as these are not proper subjects of commerce, and there is no unreasonable interference when they are inspected and excluded. So a state may protect its inhabitants against the fraudulent substitution, by deceptive coloring or otherwise, of one article for another. Plumley v. Massachusetts, 155 U.S. 461 , 15 S.Ct. 154; Hebe Co. v. Shaw, 248 U.S. 297 , 39 S.Ct. 125; Hygrade Provision Co. v. Sherman, 266 U.S. 497 , 45 S.Ct. 141. It may give protection to travelers against the dangers of overcrowded highways (Bradley v. Public Utilities Commission, 289 U.S. 92 , 53 S.Ct. 577, 85 A.L.R. 1131) and protection to its residents against unnecessary noises. Hennington v. Georgia, 163 U.S. 299 , 16 S.Ct. 1086. Cf., however, Missouri, Kansas & Texas R. Co. v. Texas, 245 U.S. 484, 488 , 38 S. Ct. 178, L.R.A. 1918C, 535. At times there are border cases, such as People of State of New York ex rel. Silz v. Hesterberg, 211 U.S. 31 , 29 S.Ct. 10, where the decision in all likelihood was influenced, even if it is not wholly explained, by a recognition of the special and restricted nature of rights of property in game. Interference was there permitted with sale and importation, but interference for a closed season and no longer, and in aid of a policy of conservation common to many states. Cf. Geer v. Connecticut, 161 U.S. 519 , 16 S.Ct. 600; Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 11 , 49 S.Ct. 1; People ex rel. Silz v. Hesterberg, 184 N.Y. 126, 131, 76 N.E. 1032, 3 L.R.A.(N.S.) 163, 128 Am.St.Rep. 528, 6 Ann.Cas. 353. None of these statutes-inspection laws, game laws, laws intended to curb fraud or exterminate disease-approaches in drastic quality the statute here in contro- [294 U.S. 511, 526] versy which would neutralize the economic consequences of free trade among the states.
Second. There was error in refusing an injunction to restrain the enforcement of the act in its application to milk in bottles to be sold by the importer.
The test of the 'original package,' which came into our law with Brown v. Maryland, 12 Wheat. 419, is not inflexible and final for the transactions of interstate commerce, whatever may be its validity for commerce with other countries. Cf. Woodruff v. Parham, supra; Anglo- Chilean Nitrate Sales Corp. v. Alabama, 288 U.S. 218, 226 , 53 S.Ct. 373. There are purposes for which merchandise, transported from another state, will be treated as a part of the general mass of property at the state of destination though still in the original containers. This is so, for illustration, where merchandise so contained is subjected to a nondiscriminatory property tax which it bears equally with other merchandise produced within the state. Sonneborn Bros. v. Cureton, 262 U.S. 506 , 43 S.Ct. 643; Texas Co. v. Brown, 258 U.S. 466, 475 , 42 S.Ct. 375; American Steel & Wire Co. v. Speed, 192 U.S. 500 , 24 S.Ct. 365. There are other purposes for which the same merchandise will have the benefit of the protection appropriate to interstate commerce, though the original packages have been broken and the contents subdivided. 'A state tax upon merchandise brought in from another state or upon its sales, whether in original packages or not, after it has reached its destination and is in a state of rest, is lawful only when the tax is not discriminating in its incidence against the merchandise because of its origin in another state.' Sonneborn Bros. v. Cureton, supra, at page 516 of 262 U.S., 43 S.Ct. 643, 646. Cf. McDermott v. Wisconsin, 228 U.S. 115, 133 , 33 S.Ct. 431, 47 L.R.A.(N.S.) 984, Ann.Cas. 1915A, 39; Bowman v. Chicago & N.W.R. Co., 125 U.S. 465, 491 , 8 S.Ct. 689, 1062; Brimmer v. Rebman, 138 U.S. 78 , 11 S.Ct. 213; Savage v. Jones, supra, at page 525 of 225 U.S., 32 S.Ct. 715; Western Union Tel. Co. v. Foster, 247 U.S. 105, 114 , 38 S.Ct. 438;, 1 A.L.R. 1278; Pacific Co. v. Johnson, 285 U.S. 480, 493 , 52 S.Ct. 424. In brief, the test of the origi- [294 U.S. 511, 527] nal package is not an ultimate principle. It is an illustration of a principle. Pennsylvania Gas Co. v. Public Service Commission, 225 N.Y. 397, 403, 122 N.E. 260. It marks a convenient boundary, and one sufficiently precise save in exceptional conditions. What is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation. Formulas and catchwords are subordinate to this overmastering requirement. Neither the power to tax nor the police power may be used by the state of destination with the aim and effect of establishing an economic barrier against competition with the products of another state or the labor of its residents. Restrictions so contrived are an unreasonable clog upon the mobility of commerce. They set up what is equivalent to a rampart of customs duties designed to neutralize advantages belonging to the place of origin. They are thus hostile in conception as well as burdensome in result. The form of the packages in such circumstances is immaterial, whether they are original or broken. The importer must be free from imposts framed for the very purpose of suppressing competition from without and leading inescapably to the suppression so intended.
The statute here in controversy will not survive that test. A dealer in milk buys it in Vermont at prices there prevailing. He brings it to New York, and is told he may not sell it if he removes it from the can and pours it into bottles. He may not do this for the reason that milk in Vermont is cheaper than milk in New York at the regimented prices, and New York is moved by the desire to protect her inhabitants from the cut prices and other consequences of Vermont competition. To overcome that competition a common incident of ownership, the privilege of sale in convenient receptacles, is denied to one who has bought in interstate commerce. He may not sell on any terms to any one, whether the orders were given in [294 U.S. 511, 528] advance or came to him thereafter. The decisions of this court as to the significance of the original package in interstate transactions were not meant to be a cover for retortion or suppression.
The distinction is clear between a statute so designed and statutes of the type considered in Leisy v. Hardin, 135 U.S. 100 , 10 S.Ct. 681, to take one example out of many available. By the teaching of that decision intoxicating liquors are not subject to license or prohibition by the state of destination without congressional consent. 3 They become subject, however, to such laws when the packages are broken. There is little, if any, analogy between restrictions of that type and those in controversy here. In licensing or prohibiting the sale of intoxicating liquors a state does not attempt to neutralize economic advantages belonging to the place of origin. What it does is no more than to apply its domestic policy, rooted in its conceptions of morality and order, to property which for such a purpose may fairly be deemed to have passed out of commerce and to be commingled in an absorbing mass. So, also, the analogy is remote between restrictions like the present ones upon the sale of imported milk and restrictions affecting sales in unsanitary sweat- shops. It is one thing for a state to exact adherence by an importer to fitting standards of sanitation before the products of the farm or factory may be sold in its markets. It is a very different thing to establish a wage scale or a sacle of prices for use in other states, and to bar the sale of the products, whether in the original packages or in others, unless the scale has been observed.
The decree in No. 604 is affirmed, and that in No. 605 reversed, and the cause remanded for proceedings in accordance with this opinion.
[ Footnote 3 ] The rule is different today under the Twenty-First Amendment. Article 21, 2.

matches:
v.
v.
v.
art. 1
art. 1
v.
art. 1
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.


text:
IN RE: James K. NICHOLS. December 18, 1998 No. 98-B-2942.
STATE v. STE MARIE December 18, 1998 No. 98-K-1167.
IN RE: David FERGURSON December 18, 1998 No. 98-B-2591.
IN RE: Donald O. PINKSTON. December 11, 1998 No. 98-B-1926.
IN RE: Eddie L. STEPHENS. December 11, 1998 No. 98-B-2515.
THOMAS v. TOWN OF ARNAUDVILLE December 11, 1998 No. 98-C-1403.
BANKS v. NEW YORK LIFE INSURANCE CO December 7, 1998 No. 98-C-0551.
STATE v. FROST December 1, 1998 No. 97-KA-1771.
STATE v. BENJAMIN December 1, 1998 No. 97-K-3065.
HARRISON v. STATE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS December 1, 1998 Nos. 97-C-1086, 97-C-1125.
IN RE: Judge Gary A. BOWERS. December 1, 1998 No. 98-O-1735.
BROWN v. TEXAS LA CARTAGE INC December 1, 1998 No. 98-C-1063.
DUAL DRILLING COMPANY v. MILLS EQUIPMENT INVESTMENTS INC December 1, 1998 Nos. 98-C-0343, 98-C-0356.

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


Zulfia FAYZULLINA, Petitioner, v. Eric H. HOLDER, Jr., Respondent.
Before GUY, ROGERS, and DONALD, Circuit Judges. ON BRIEF:Philip A. Eichorn, Philip Eichorn Co., LPA, Cleveland, Ohio, for Petitioner. Jesse Lloyd Busen, United States Department of Justice, Washington, D.C., for Respondent.
Zulfia Fayzullina, a native and citizen of Russia, challenges the order of her removal for having provided a materially false writing regarding her marital and residential status and for having been convicted of providing a materially false document to the government, a crime of moral turpitude. Sufficient evidence supports the conclusion that she made the false writing, that it was material, and that she committed a crime of moral turpitude when she submitted it to the government. For that reason, and because neither of the provisions for waiver of removal upon which Fayzullina relies applies in this case, her petition for review lacks any tenable basis.
Fayzullina and Matthew Grey entered into a sham marriage for the purpose of evading U.S. immigration laws. Fayzullina entered the United States from her native Russia on May 31, 2005, on a non-immigrant visa. On March 17, 2006, she married Grey and, shortly thereafter, petitioned to change her status to that of a lawful permanent resident. The government granted her petition on August 26, 2008. In January, 2009, Fayzullina sought reentry after travelling abroad, and was admitted.
Then, on August 5, 2009, a federal grand jury indicted Fayzullina and Grey. The indictment included three counts against Fayzullina. Count 1 charged that Grey and Fayzullina had married “for the purpose of evading a provision of the immigration laws of the United States.” Count 2 charged that Fayzullina “did knowingly and willfully make and use a material false writing and document by presenting to the CIS [Citizenship and Immigration Services] an I–485, Application to Register Permanent Residence or Adjust Status, knowing the same to be false; that is false and misleading information regarding his [sic] marital status including his [sic] residence information.” Count 4 alleged that Fayzullina and Grey made material false statements so that a third party could receive compensation and so that another third party could evade the immigrations laws.
18 U.S.C. § 1001(a)(3). The court sentenced Fayzullina to two years' probation.
procured [her] admission, visa, adjustment, or other documentation or benefit by fraud or by willfully misrepresenting a material fact, to wit: [she] knowingly provided false representations regarding [her] marriage to Matthew Grey in [her] I–485 adjustment of status application and [she] knowingly provided false statements regarding [her] marriage to Matthew Grey at [her] adjustment of status interview in order to procure [her] admission, visa, adjustment, or other documentation or benefit by fraud or by willfully misrepresenting a material fact.
On or about March 22, 2010, after pleading guilty, [Fayzullina was] convicted in the U.S. District Court for the Southern District of Ohio ․ of Making a False Statement and Representation in violation of 18 U.S.C. § 1001(a)(2) [sic] and [she was] sentenced to probation for a period of two years for this offense (although the statutory maximum sentence of five years imprisonment could have been imposed).
While Fayzullina acknowledged having pled guilty to lying about her marriage in her I485, she denied Allegation 5 because, she said, the government had not adequately established that her misrepresentation was material. Fayzullina also denied Allegation 6, on the ground that she had never been convicted of violating 18 U .S.C. § 1001(a)(2), and that in any event the crime she was convicted of, framed in the disjunctive, was, in part, not one of moral turpitude.
The IJ adopted Allegations 5 and 6. With respect to Allegation 5, he concluded that Fayzullina's guilty plea was sufficient to sustain the factual allegation with respect to her I–485 statements, and also that a Statement of Facts submitted to the district court and prepared and signed by Fayzullina admitted that she made false statements at the adjustment of status interview. That admission, the IJ found, established that Fayzullina had knowingly lied to the CIS officer at her adjustment of status interview.
Regarding Allegation 6, the IJ acknowledged that the charging document listed the wrong statute of conviction—18 U.S.C. § 1001(a)(2), rather than § 1001(a)(3). Rather than dismiss the allegation, however, the IJ determined, sua sponte, to “amen[d] the alleged statute of conviction to 18 U.S.C. § 1001(a)(3),” and then adopted the amended allegation.
Next, the IJ addressed the government's two stated bases for removability: 8 U.S.C. §§ 1227(a)(1)(A) and 1227(a)(2)(A)(i). Section 1227(a)(1)(A) provides that, “Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.” 8 U.S.C. § 1227(a)(1)(A). The IJ determined that Fayzullina was inadmissible when she became a lawful permanent resident because of 8 U.S.C. § 1182(a)(6)(C)(i), which makes inadmissible “[a]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter.” 8 U.S.C. § 1182(a)(6)(C)(i). The IJ concluded that Fayzullina's conviction under 18 U.S.C. § 1001(a)(3)—for “knowingly and willfully ․ mak[ing] or us[ing] [a] false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry,” 18 U.S.C. § 1001(a)(3)—met 8 U.S.C. § 1182(a)(6)(C)(i)'s requirements of willfulness and materiality, making Fayzullina removable under 8 U.S .C. § 1227(a)(1)(A).
The IJ also concluded that Fayzullina was removable under 8 U.S.C. § 1227(a)(2)(A)(i). That statute makes removable “Any alien who (I) is convicted of a crime involving moral turpitude committed within five years ․ after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed.” 8 U.S.C. § 1227(a)(2)(A)(i). Relying on Sixth Circuit and BIA precedents, the IJ found that Fayzullina's violation of 18 U.S.C. § 1001(a)(3) necessarily entailed both knowledge and materiality, such that it constituted a crime of moral turpitude. Because Fayzullina's conviction under 18 U.S.C. § 1001(a)(3) occurred within five years of her arrival in the United States and was punishable by more than a year in prison, the IJ determined that she was removable under 8 U.S.C. § 1227(a)(2)(A)(i), as well.
Fayzullina moved the IJ to reconsider his finding that she was removable under 8 U.S.C. § 1227(a)(2)(A)(i). The IJ denied Fayzullina's motion on June 7, 2012, finding that any violation of 18 U.S.C. § 1001(a)(3) constitutes a crime involving moral turpitude. Because violations of § 1001(a)(3) are categorically crimes of moral turpitude, he concluded, there was no need to consider the particulars of Fayzullina's record of conviction in determining whether she was removable under 8 U.S.C. § 1227(a)(2)(A)(i).
is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and ․ was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a) of this title which were a direct result of that fraud or misrepresentation.
is the spouse, parent, son, or daughter of a citizen of the United States ․ [and] it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien․ No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if ․ the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.
The Respondent was convicted of a crime involving moral turpitude. The Respondent's inadmissibility under INA § 212(a)(2)(A)(i)(I) is the direct result of that conviction. The underlying fraud is an indirect cause, and is thus not covered by INA § 237(a)(1)(H).
A.R. 135. The IJ concluded that, because Fayzullina's removability was not the direct result of fraud or misrepresentation, she was not eligible for waiver of removal under § 1227(a)(1)(H).
The IJ next found that Fayzullina did not meet the requirements for eligibility under 8 U.S.C. § 1182(h), since she had not lawfully resided continuously in the United States for seven years before removal proceedings commenced. Section 1182(h) expressly applies only to aliens who have resided in the United States for seven years before the government initiates proceedings to remove them from the country. 8 U.S.C. § 1182(h). Fayzullina entered the country on May 31, 2005, and was served with the NTA on September 30, 2010, and therefore she had been in the country for just over five years when the government initiated removal proceedings.
Fayzullina appealed the IJ's decision, but the BIA dismissed the appeal on November 5, 2013. The Board concluded that the IJ properly sustained Allegation 5 in the charging documents because DHS provided sufficient evidence to establish that Fayzullina knowingly provided materially false oral and written statements regarding her prior marriage to obtain adjustment of status. The BIA also concluded that the IJ had not violated Fayzullina's due process rights in changing Allegation 6 to properly reflect Fayzullina's statute of criminal conviction, because Fayzullina had been aware of the nature of her criminal conviction and, therefore, was “not unduly prejudiced by the DHS's error in the Form I–261.” The BIA then upheld the IJ's finding that Fayzullina was removable under 8 U.S.C. § 1227(a)(2)(A)(i), citing Sixth Circuit and BIA precedent for the proposition that an offense under 18 U.S.C. § 1001 is categorically a crime involving moral turpitude.
The BIA also upheld each of the IJ's findings pretermitting waiver. First, the BIA held that 8 U.S.C. § 1227(a)(1)(H) could not operate to waive a charge of removability under 8 U.S.C. § 1227(a)(2)(A)(i) because § 1227(a)(1)(H), by its terms, applies exclusively to “[t]he provisions of this paragraph,” i.e., paragraph (a)(1) of § 1227. The BIA determined that 8 U.S.C. § 1227(a)(1)(H) thus could not effect a waiver of removability based on 8 U.S.C. § 1227(a)(2)(A)(i). The BIA also concluded that Fayzullina was ineligible for a waiver under 8 U.S.C. § 1182(h) because she could not meet that waiver provision's requirement of seven years' physical presence in the United States. The Board accordingly dismissed Fayzullina's appeal in its entirety. Fayzullina now petitions for review of the BIA decision.
None of Fayzullina's arguments warrants granting her petition for review.
First, notwithstanding Fayzullina's argument, a violation of 18 U .S.C. § 1001(a)(3) is categorically a “crime involving moral turpitude” for purposes of removal under 8 U.S.C. § 1227(a)(2)(A)(i). This conclusion is supported by precedents of our court and of the BIA.
The BIA has “long held that crimes involving fraud or making false statements have been found to involve moral turpitude.” Matter of Pinzon, 26 I. & N. Dec. 189, 193 (BIA 2013); see also Matter of Correa–Garces, 20 I. & N. Dec. 451, 454 (BIA 1992). Its construction of ambiguous statutory provisions—like the term “crime involving moral turpitude”—is entitled to Chevron deference. Ruiz–Lopez v. Holder, 682 F.3d 513, 516 (6th Cir.2013). Consequently, this court “must uphold the BIA's construction [of 8 U.S.C. § 1227(a)(2)(A)(i) ] unless it is arbitrary, capricious, or manifestly contrary to the statute.” Kellermann v. Holder, 592 F.3d 700, 702 (6th Cir.2010) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843–44 (1984)) (internal quotation marks omitted). Our circuit has held—along with a number of other circuits—that the BIA's interpretation of “crime involving moral turpitude” is reasonable. Novatchinski v. Holder, 516 F. App'x 526, 530–31 (6th Cir.2013) (holding the BIA's interpretation reasonable and listing cases reaching the same conclusion); Ghani v. Holder, 557 F.3d 836, 841 n. 3 (7th Cir.2009) (listing additional cases).
This court's precedents, too, stand for the proposition that crimes of deliberate dishonesty involving material facts categorically involve moral turpitude. For example, in Kellermann v. Holder, we held that pleading guilty to having “unlawfully, willfully, and knowingly conspire[d] ․ to knowingly and willfully make false, fictitious, and fraudulent statements or representations concerning a material fact within the jurisdiction of a department or an agency of the United States” supported removability under 8 U.S.C. § 1227(a)(2)(A)(i). 592 F.3d at 703–05. We have reasoned similarly in cases involving lying on a student loan application, Kabongo v. INS, 837 F.2d 753, 758 (6th Cir.1988), and knowingly possessing illicit identification documents with intent to use or transfer them, Yeremin v. Holder, 738 F.3d 708, 715–16 (6th Cir.2013). Most recently, in Imran v. Holder, 531 F. App'x 749 (6th Cir.2013), we held that, for purposes of 18 U .S.C. § 1227, it made no difference whether the petitioner had pled guilty to making a fictitious statement or a false statement, since either admission constituted a crime of moral turpitude. “Making a fictitious statement to a government agency knowing that it is fictitious involves no less moral turpitude than making a false statement to a government agency knowing that it is false.” Id. at 750.
These cases make clear that crimes of making deliberately dishonest statements involving material facts are inherently crimes involving moral turpitude. Those elements—materiality and knowledge—are manifestly present in Fayzullina's case. Indeed, she pled guilty to “mak[ing] or us[ing] any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.” 18 U.S.C. § 1001(a)(3) (emphasis added). This admission is more than sufficient to establish her violation of § 1001(a)(3) as a crime involving moral turpitude.
It makes no difference that the aforementioned cases construed statutory language other than the current version of 18 U.S.C. § 1001(a)(3). The statutes they addressed use language that is not materially distinguishable from the language of § 1001(a)(3). Imran, for example, dealt with 18 U.S.C. § 1001(a)(2), which criminalizes “knowingly and willfully ․ mak[ing] any materially false, fictitious, or fraudulent statement or representation.” See Imran, 531 F. App'x at 750. In comparison, 18 U.S.C. § 1001(a)(3) criminalizes “knowingly and willfully ․ mak[ing] or us[ing] any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.” 18 U.S.C. § 1001(a)(3). The differences do not affect the degree of moral turpitude. First, paragraph (a)(2) applies to “statement[s] or representation[s],” whereas (a)(3) applies to “writing[s] or document[s].” But there is no reason why a written falsehood should involve moral turpitude any more or less than a spoken one. Second, paragraph (a)(2) applies to any false, fictitious, or fraudulent statements or representations, whereas paragraph (a)(3) is expressly limited to writings or documents made with the knowledge that the writings or documents “contain any materially false, fictitious, or fraudulent statement[s] or entr[ies].” If anything, paragraph (a)(3)'s requirement that a writing or document be made with knowledge of the falsehood makes a guilty plea under paragraph (a)(3) more likely to involve moral turpitude than a plea under paragraph (a)(2), since it limits convictions under paragraph (a)(3) to defendants who acted with scienter. See Ruiz–Lopez v. Holder, 682 F.3d 513, 519 (6th Cir.2012) (citing Matter of Silva–Trevino, 24 I. & N. Dec. 687, 706 & n. 5 (BIA 2008)).
In determining whether a conviction under a federal statute fits the BIA's definition of a crime involving moral turpitude, we apply what are known as the categorical and modified-categorical approaches. First, the categorical approach is applied, in which we consider whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude. We thus look to the elements of the offense, rather than the underlying facts of the specific case. If the full range of conduct encompassed by the statute constitutes a crime of moral turpitude, then the conviction is for an offense qualifying as a crime involving moral turpitude.
Yeremin v. Holder, 738 F.3d 708, 715 (6th Cir.2013) (citations and internal quotation marks omitted). What the BIA did in this case is fully consistent with this first step. The BIA concluded accurately that “both the Board and the [Sixth Circuit] ․ have held that an offense under 18 U.S.C. § 1001 is a categorical crime involving moral turpitude.” A.R. 11.
A person who pleads guilty under 18 U.S.C. § 1001(a)(3) necessarily admits having knowingly used a document that is materially false, fictitious, or fraudulent. 18 U.S.C. § 1001(a)(3). Regardless of how the misinformation is characterized, the elements of materiality and scienter are inescapably present in any such plea, so that pleading guilty to violating § 18 U.S.C. § 1001(a)(3) is tantamount to admitting to a crime involving moral turpitude. Because a violation of 18 U.S.C. § 1001(a)(3) is categorically a crime involving moral turpitude, there was no reason for the BIA or the IJ to apply a modified-categorical analysis in Fayzullina's case. In short, the BIA did not err in concluding that Fayzullina's violation of 18 U.S.C. § 1001(a)(3) was a crime involving moral turpitude.
The IJ, moreover, did not violate Fayzullina's due process rights by sua sponte amending Allegation 6 of the NTA to reflect that she had pled guilty to violating 18 U.S.C. § 1001(a)(3), rather than 18 U.S.C. § 1001(a)(2). The amendment did not prejudice her, and an alleged due process violation is not cognizable in the immigration context absent a showing of prejudice. “To prevail on a due process challenge, an alien must demonstrate not only error, but also substantial prejudice, or sho[w] the alleged violation affected the outcome of the proceeding.” Lin v. Holder, 565 F.3d 971, 979 (6th Cir.2009). Conduct that does not prevent an alien from “reasonably presenting his case” is not a due process violation. Id. The emphasis on actual prejudice, rather than technical exactitude, comports with the Supreme Court's longstanding rejection of “the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept[ance of] the principle that the purpose of pleading is to facilitate a proper decision on the merits.” United States v. Hougham, 364 U.S. 310, 317 (1960).
Fayzullina suggests two ways the IJ's sua sponte amendment may have prejudiced her, but neither is persuasive. First, she says that she lacked “notice of the correct subsection” underlying the charge of removability. That claim is undermined by the fact that, in her pleadings before the IJ, Fayzullina repeatedly addressed argument to the correct paragraph of the statute, notwithstanding the typographical error. In her motion for reconsideration, moreover, Fayzullina raised several additional legal arguments expressly addressing the correct statute. Fayzullina's other argument regarding prejudice is that the IJ “did not analyze the text of the correct statute.” That argument is manifestly wrong. Indeed, it was the IJ who amended Allegation 6 to state the correct statute of conviction. Nothing else in the IJ's opinions or the BIA's opinion suggests that either tribunal was confused about the paragraph of 18 U.S.C. § 1001(a) to which Fayzullina had pled guilty. Her remaining allegations of prejudice are either unsubstantiated or conclusory.
Finally, the BIA properly concluded that Fayzullina is ineligible for waiver under either of the two provisions upon which she relies. First, Fayzullina argues that she is eligible for waiver of removal under 8 U.S.C. § 1227(a)(1)(H), which allows for waiver of “the [removal] provisions of this paragraph ” under certain conditions. 8 U.S.C. § 1227(a)(1)(H) (emphasis added). The problem for Fayzullina is that the IJ and the BIA found her removable not just under paragraph (1) of § 1227(a), but also under paragraph (2). The waiver provision in § 1227(a)(1)(H) explicitly applies only to findings of removability based on paragraph (1); it does not encompass or permit waiver of the provisions of any other paragraph. Id. That is why the two circuit courts to have addressed the question have held that § 1227(a)(1)(H)'s waiver provision does not apply to findings of removability based on other paragraphs in § 1227(a). Taggar v. Holder, 736 F.3d 886, 890 (9th Cir.2013); Gourche v. Holder, 663 F.3d 882, 886–87 (7th Cir.2011).
Fayzullina disputes this reading of the statute, contending that it fails to “address the language that 8 U.S.C. § 1227(a)(1)(H) waives other grounds of inadmissibility that are a ‘direct result’ of the fraud [that is the basis for removal].” She argues that, because her conviction under 18 U.S.C. § 1001(a)(3) was a “direct result” of deception or fraud, her resultant inadmissibility under 8 U.S.C. § 1227(a)(2)(A)(i) is waivable under 8 U.S.C. § 1227(a)(1)(H). But even if Fayzullina were inadmissible as a “direct result” of deceptive or fraudulent conduct, she would still not be eligible for a waiver under 8 U.S.C. § 1227(a)(1)(H) because waivers under that section only apply to “the provisions of this paragraph,” i.e., 8 U.S.C. § 1227(a)(1) (emphasis added). Because one basis for Fayzullina's removability is 8 U.S.C. § 1227(a)(2), she is not eligible for waiver of removal under 8 U.S.C. § 1227(a)(1)(H). See Gourche, 663 F.3d at 886–87.
Second, Fayzullina argues that she is eligible for a waiver under 8 U.S.C. § 1182(h). To be eligible for a waiver under that subsection, however, the Board held that Fayzullina must show that she “resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove [her] from the United States,” under 8 U.S.C. § 1182(h).1 The record shows that, even disregarding Fayzullina's brief departure from the United States in 2009, she had been in the country at most for just over five years when DHS initiated removal proceedings against her. That duration is well short of the seven-year requirement of 8 U.S.C. § 1182(h).
Relying on Matter of Tanori, 15 I. & N. Dec. 566 (BIA 1976), and Matter of Sanchez, 17 I. & N. Dec. 218 (BIA 1980), Fayzullina argues in a somewhat obscure fashion that she may nonetheless seek a nunc pro tunc waiver under § 1182(h). Tanori and Sanchez are facially distinguishable because both Tanori and Sanchez had indisputably been residents of the United States for over seven years when removal proceedings were initiated against them. See Matter of Tanori, 15 I. & N. Dec. at 567; Matter of Sanchez, 17 I. & N. Dec. at 223–24. In any event, the nunc pro tunc waiver concept that was acknowledged for different purposes in those cases has since been definitively repudiated by the BIA. See Rivas v. U.S. Att'y. Gen., 765 F.3d 1324, 1329 (11th Cir.2014) (discussing Matter of Rivas, 26 I. & N. Dec. 130, 131–34 (BIA 2013)).
1. Fayzullina does not argue that the seven-year requirement is inapplicable on the ground that she is not “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence” for purposes of § 1182(h).


text:
개인 정보 보호 정책 - Levitronix. Saving lives - Saving chips.
This Privacy Notice is applicable for the use of the following website: https://www.levitronix.com and applies exclusively to the use of our website by any internet user.
Browser type and version and other information of your device, such as the operating system of your computer, the name of your access provider, geographical origin, language setting, etc.
The legal basis for data processing is legitimate interest according to art. 6 para. 1 sentence 1 lit. f GDPR. Our legitimate interest follows from the purposes listed above for data collection. Under no circumstances, we do use the data collected for the purpose of drawing conclusions about you personally.
We use session cookies on our website. These are small files that your browser automatically creates and that are stored on your device (laptop, tablet, smartphone, etc.) when visiting our website. The cookies we use do not allow us to identify you. Session cookies are used for the optimal functioning of our website.
The data processed by cookies is required for the aforementioned purposes in order to protect our legitimate interests and interests of third parties pursuant to art. 6 para. 1 p. 1 lit. f GDPR.
In order to improve our online services, we occasionally evaluate with Matomo (formerly Piwik) how the page is used. The application stores cookies on your computer to identify different users. Your IP addresses are shortened, so that a direct personal relation can be excluded. The IP addresses transmitted by your browser via Matomo is not merged with other data collected by us. We delete the pseudonymzed data about you after the creation of the statistic. This evaluation is carried out on the basis of our justified interest in the improvement of the online offer (Art. 6 para. 1 lit. f GDPR).
In connection with the processing activities related to the website, no processing takes place in or from a third country without an adequate level of data protection.
to request information about your personal data processed by us (art. 8 DSG). In particular, you may request information about the purposes of processing, the category of personal data, the categories of recipients to whom your data have been or will be disclosed, the planned storage period, the existence of a right to rectification, deletion, restriction of processing or objection, the existence of a right of appeal, the origin of your data, if these have not been collected by us, and the existence of automated decision-making including profiling and, if applicable, meaningful information on their details (art. 15 GDPR and art. 8 DSG). In the event of disproportionately high costs, we reserve the right to require you to provide us with an identification card and to assume the actual costs in advance.
to obtain information on the legal basis of the processing (art. 8 para. 2 lit. b DSG).
to demand immediately the correction of incorrect or complete personal data stored by us (art. 16 GDPR and art. 5 para. 2 DSG).
to demand the deletion of your personal data stored by us, unless the processing is necessary to exercise the right to freedom of expression and information, to fulfil a legal obligation, for reasons of public interest or to assert, exercise or defend legal claims (art. 17 GDPR and art. 15 DSG).
to demand the restriction of the processing of your personal data if you dispute the accuracy of the data, if the processing is unlawful, but you refuse to delete it and we no longer need the data, but if you need it to assert, exercise or defend legal claims or if you have filed an objection against the processing pursuant to art. 21 GDPR (art. 18 GDPR and art. 15 DSG).
to receive your personal data that you have provided to us in a structured, current and machine-readable format or to request its transfer to another person responsible (art. 20 GDPR).
to revoke your consent once given to us at any time. As a consequence, in the future, we are no longer allowed to continue data processing based on this consent (Art. 7 para. 3 GDPR).
to complain to a supervisory authority (see above) (art. 77 GDPR).
If your personal data will be processed on the basis of legitimate interests pursuant to art. 6 para. 1 sentence 1 f GDPR, you have the right to object to the processing of your personal data pursuant to art. 21 GDPR provided that there are reasons for this arising from your particular situation or the objection to direct advertising. In the latter case, you have a general right of objection, which we will implement without specifying a particular situation.
We take appropriate measures to ensure that your personal data cannot be viewed or stolen by third parties without any permission. In particular by taking appropriate technical (e.g. firewall, password protection, etc.) and organizational (e.g. restriction of authorized persons, training of authorized persons, etc.) measures, we ensure that only authorized persons have access to this data.
However, you should always be aware that the transmission of information via internet and other electronic devices bears certain security risks and that we cannot guarantee the security of information transmitted in this way.
Your personal data in connection with our website will be transmitted to us SSL-encrypted from this website. We protect our website with technical and organizational measures against unauthorized access.
We store data that we process by law during the statutory retention period, for example if required to do so by Labour Law, Social Security, Tax or Accounting Laws and Regulations.
We keep the data for the performance of a contract at least for the duration of the contract and for a maximum of ten (10) years thereafter unless we need the data to assert our rights.
Data that we process to protect our legitimate interests will be kept for a maximum of 10 (ten) years after the end of the contractual relationship unless we need the data to assert our rights.
Application documents will be deleted or destroyed after six months.
Data which were no longer needed will be deleted or destroyed when the purpose of processing and the basis for processing become invalid unless there is a legal obligation to keep them.

matches:
art. 6
art. 6
art. 8
art. 5
art. 15
art. 21
art. 15
art. 6
art. 21


D.C. Law Library - § 47–1005. Real property tax exemption.
↪ § 47–1005. Real property tax exemption.
§ 47–1004. National Society of the Colonial Dames of America.
§ 47–1005.01. Interests in real property belonging to government and international organizations.
§ 47–1005. Real property tax exemption.
(a) If a building (or a portion thereof) or grounds belonging to and actually used by an institution, organization, or other entity exempt from real property taxation under § 47-1002 is used to secure rent or income for an activity other than that for which the exemption was granted, the building (or portion thereof) or grounds shall be assessed and taxed, unless otherwise prohibited by law.
(b) If a building (or a portion thereof) or grounds belonging to and actually used by an institution, organization, or other entity exempt from real property taxation is used to secure a rent or income for any activity, where the exemption was not specifically limited to a particular use, the building (or a portion thereof) or grounds shall be assessed and taxed. This subsection shall not apply to real property exempt under § 47-1002(1) through (3), buildings or grounds subject to taxation under subsection (a) of this section, or real property immune from the levy and collection of tax under the laws of the United States.
(c) This section shall not apply to grounds used as an urban farm as certified by the Department of General Services pursuant to § 47-868.
(d) This section shall not apply to buildings or grounds used to generate stormwater retention credits certified in accordance with section 531 of Title 21 of the District of Columbia Municipal Regulations (21 DCMR § 531).
This section is referenced in § 47-1002, § 47-1003, § 47-1005.01, § 47-1005.02, § 47-1006, § 47-1008, § 47-1009, § 47-1010.01, § 47-1038, § 47-1039, § 47-1040, § 47-1041, § 47-1042, § 47-1043, § 47-1044, § 47-1045, § 47-1046, § 47-1049, § 47-1054, § 47-1056, § 47-1057, § 47-1060, § 47-1061, § 47-1062, § 47-1066, § 47-1068, § 47-1070, § 47-1079, § 47-1080, § 47-1084, § 47-1086, § 47-1087, § 47-1089, § 47-1091, § 47-1092, § 47-4620, § 47-4633, § 47-4636, § 47-4639, § 47-4641, § 47-4642, § 47-4651, § 47-4655, and § 47-4657.
The 2015 amendment by D.C. Law 20-248 added (c).
For temporary (90 days) amendment of this section, see § 7162 of Fiscal Year 2019 Budget Support Congressional Review Emergency Act of 2018 (D.C. Act 22-458, Oct. 3, 2018, 65 DCR 11212).
For temporary (90 days) amendment of this section, see § 7093(b)(3) of Fiscal Year 2019 Budget Support Congressional Review Emergency Act of 2018 (D.C. Act 22-458, Oct. 3, 2018, 65 DCR 11212).
For temporary (90 days) amendment of this section, see § 7162 of Fiscal Year 2019 Budget Support Emergency Act of 2018 (D.C. Act 22-434, July 30, 2018, 65 DCR 8200).
For temporary (90 days) amendment of this section, see § 7093(b)(3) of Fiscal Year 2019 Budget Support Emergency Act of 2018 (D.C. Act 22-434, July 30, 2018, 65 DCR 8200).
For temporary (90 day) amendment of section, see § 2(u) of Real Property Tax Clarity and Litter Control Administration Emergency Act of 2001 (D.C. Act 14-22, March 16, 2001, 48 DCR 2706).
For temporary (90 day) amendment of section, see § 5 of Finance and Revenue Technical Amendments Emergency Amendment Act of 2006 (D.C. Act 16-260, January 26, 2006, 53 DCR 780).
For temporary (90 day) amendment of section, see § 5 of Finance and Revenue Technical Amendments Congressional Review Emergency Amendment Act of 2006 (D.C. Act 16-361, April 26, 2006, 53 DCR 3619).
For temporary (225 day) amendment of section, see § 2(s) of Real Property Tax Clarity and Litter Control Administration Temporary Amendment Act of 2001 (D.C. Law 14-8, June 13, 2001, law notification 48 DCR 5916).
Section 4 of D.C. Law 16-7 amended § 3(a) of D.C. Law 10-189, set out as a Miscellaneous Note below, by substituting “as an arena” for “as a downtown sports arena”.
“(a) Notwithstanding any other law, that portion of the real property, described as lot 0047 in square 0455, in preparation for occupation and use, under construction for occupation or use, or occupied and used as a multi-purpose arena and related amenities shall be exempt from real property taxation, possessory interest taxation and business improvement district taxation.
Short title: Section 7020 of D.C. Law 17-219 provided that subtitle I of title VII of the act may be cited as the “Verizon Center Recordation Tax Clarification Amendment Act of 2008”.
Section 7022 of D.C. Law 17-219 provided that this subtitle shall apply as of July 12, 2007.
“(a) Notwithstanding any other law, that portion of the real property, described as lot 0047 in square 0455, in preparation for occupation and use, under construction for occupation or use, or occupied and used as a multi-purpose arena and related amenities shall be exempt from real property taxation, possessory interest taxation, recordation tax, and business improvement district taxation.
“(b) The exemption provided by this section shall apply so long as the Land Disposition Agreement—Ground Lease, by and between The District of Columbia Redevelopment Land Agency, The District of Columbia, and DC Arena, LP, dated as of December 29, 1995 and recorded with the Recorder of Deeds on January 5, 1996 as instrument number 9600001285, remains in effect.
Jewish War Veterans, U.S.A. National Memorial, Incorporated: Public Law 98-486 provided that certain property of the Jewish War Veterans, U.S.A. National Memorial, Incorporated, is exempt from taxation by the District of Columbia.
Real property tax exemption for downtown sports arena: Section 3(b) of D.C. Law 10-189 provided that the provisions of §§ 47-1005, 47-1007, and 47-1009 shall apply with respect to the improvements exempted by the section.
Section 4 of D.C. Law 10-189 provided for the application of the act. See note to § 47-2752.
Section 301 of D.C. Law 20-248 provided that nothing in the act shall be construed to create a governmental liability or cause of action against the District related to the safety of food purchased on District lands by non-governmental entities.
Applicability of D.C. Law 20-248: Section 6183 of D.C. Law 21-36 removed the funding requirement and other applicability restrictions in D.C. Law 20-248, § 302, as enacted.


Yesterday, the Court of Appeals for the Federal Circuit reversed and remanded the decision of the Delaware district court in Immersion Corp. v. HTC Corp., No. 1:12-cv-00259, 2015 WL 627425 (D. Del. Feb. 11, 2015). That case held that to have continuity with an earlier filed application that was being issued as a patent, the continuing application must have been filed the day before the patent was issued by the U.S. Patent and Trademark Office. This ruling was contrary to more than 50 years of USPTO practice and procedures.
The question presented to the Federal Circuit was simply this—does 35 U.S.C. § 120, for treating a patent application, filed as a continuation of an earlier application, require that the continuing application be filed at least on the day before the patent issues—or can the continuation be filed on the same date that the patent issues?
The statute states that the continuing application must be “filed before the patenting” of the earlier application.
The Federal Circuit held that filing can occur on the same day as the issuance of the patent.
Long before Congress enacted Section 120 in the 1952 Patent Act, the Supreme Court in Godfrey v. Eames, 68 U.S. (1 Wall.) 317 (1864), established the basis for same-day continuations for priority-date purposes. There, Mr. Godfrey had withdrawn a previously filed patent application and, on the same day, refiled his application with an amended specification. Id. at 324. The Court held that “if a party choose(s) to withdraw his application for a patent . . . intending at the time of such withdrawal to file a new petition, and he accordingly do(es) so, the two petitions are to be considered as parts of the same transaction, and both as constituting one continuous application, within the meaning of the law.” Id. at 325–36. It adopted that position for purposes of giving the earlier application’s priority date to the successor application (where the two were sufficiently related). And in the decades following Godfrey, the Supreme Court, other federal courts, and the USPTO consistently followed Godfrey’s rule.
The 1952 Patent Act, which introduced Section 120, was broadly a codification of existing continuation practices. And same-day continuations have been approved by a consistent, clearly articulated agency practice going back at least half a century, which has plausibly engendered large-scale reliance and reflects the agency’s procedural authority to define when the legal acts of “filing” and “patenting” will be deemed to occur, relative to each other, during a day.
When a later-filed application is claiming the benefit of a prior-filed nonprovisional application under 35 U.S.C. 120, 121, 365(c), or 386(c), the later-filed application must be copending with the prior application or with an intermediate nonprovisional application similarly entitled to the benefit of the filing date of the prior application.
Copendency is defined in the clause which requires that the later-filed application must be filed before: (A) the patenting of the prior application; (B) the abandonment of the prior application; or (C) the termination of proceedings in the prior application.
Prior to the Delaware decision, when a prior application issues as a patent, it is sufficient for the later-filed application to be copending with it if the later-filed application is filed on the same date, or before the date that the patent issues on the prior application. See MOAEC, Inc. v. MusicIP Corp., 568 F. Supp. 2d 978, 982 (W.D. Wis. 2008). In that case, the district court interpreted “before” to mean “not later than” and allowed a continuation application filed the same day that the parent patent issued to have the benefit of the filing date of the parent application.
On January 19, 2000, Immersion Corp. filed with the USPTO a patent application disclosing a mechanism for providing haptic feedback to users of electronic devices. On August 6, 2002, that application issued as U.S. Patent No. 6,429,846.
Meanwhile, Immersion had filed International Application No. PCT/US01/01486, and that application was published as WO 01/54109 on July 26, 2001. The written description of the PCT publication is materially identical to that of the ’846 patent. Under 35 U.S.C. § 102(b), the PCT publication became invalidating as to claims to subject matter disclosed in that publication unless those claims were entitled to an effective filing date before July 26, 2002.
Beginning in August 2002, i.e., after the July 2002 date, Immersion filed in the United States a series of applications that similarly shared the written description of the ’846 patent and for which Immersion asserted an entitlement to an effective filing date of January 19, 2000, the filing date of the ’846 patent’s application, relying upon Section 120.
which eventually matured into U.S. Patent No. 7,148,875—on August 6, 2002, the same day that the ’846 patent issued. The present dispute is whether the ’875 patent’s application was “filed before the patenting” of the ’846 patent’s application and hence is entitled to the 2000 filing date of the ’846 patent.
In early 2012, Immersion sued HTC Corp. and HTC America, Inc. (collectively, HTC) for infringing the ’720, ’181, and ’105 patents. HTC sought summary judgment that the asserted patent claims are invalid under 35 U.S.C. § 102(b) because the WO ’109 publication of July 26, 2001, disclosed the subject matter of those claims.
The decisive issue was the priority date to which the patents at issue are entitled based on the chain of applications tracing back to the ’846 patent—specifically, whether the link between the ’875 patent’s application and the ’846 patent’s application met Section 120’s timing requirement.
The district court held that the ’875 patent’s application was not “filed before the patenting” of the ’846 patent’s application within the meaning of Section 120, because they were filed on the same day.
According to the appellate court, this is not a case where the language of the statute actually contradicts the longstanding judicial and agency interpretation. Nor is it a case in which the longstanding agency position is plainly outside the agency’s granted authority. Here, the position is essentially a procedural one—establishing when the agency will consider an input into its process (the legal act of “filing”) and an output of its process (the legal act of “patenting”) to occur relative to each other—neither one being a precisely identifiable self-defining physical act, but a legally defined event. The USPTO has been granted authority to establish procedures that organize its processing of requests to issue (or cancel) patents, from entry to exit. See 35 U.S.C. § 2.
Once the appellate court determined that Section 120 permits consideration of whether filing was before patenting within a single day, any argument against same-day continuations runs into insuperable difficulties, given Godfrey and the USPTO’s authority, supported by obvious practical considerations, to declare when the events of “filing” and “patenting” are deemed to occur within the same day.


Source Credit Added Pub. L. 95-454, title II, §205, Oct. 13, 1978, 92 Stat. 1143; amended Pub. L. 97-164, title I, §144, Apr. 2, 1982, 96 Stat. 45; Pub. L. 101-12, §10, Apr. 10, 1989, 103 Stat. 35; Pub. L. 105-311, §10(a), Oct. 30, 1998, 112 Stat. 2954.
1998—Subsec. (b)(1). Pub. L. 105–311, §10(a)(1), substituted “within 60 days” for “within 30 days”.
Subsec. (d). Pub. L. 105–311, §10(a)(2), in first sentence, inserted “, within 60 days after the date the Director received notice of the final order or decision of the Board,” after “filing”.
1982—Subsec. (b)(1). Pub. L. 97–164, §144(1), substituted “United States Court of Appeals for the Federal Circuit” for “Court of Claims or a United States court of appeals as provided in chapters 91 and 158, respectively, of title 28”.
Subsec. (c). Pub. L. 97–164, §144(2), substituted “Court of Appeals for the Federal Circuit” for “Court of Claims or a United States court of appeals”.
Subsec. (d). Pub. L. 97–164, §144(3), substituted “United States Court of Appeals for the Federal Circuit” for “United States Court of Appeals for the District of Columbia”.
For effect of Pub. L. 101–12 on orders, rules, and regulations issued before effective date of Pub. L. 101–12, administrative proceedings pending at time provisions of Pub. L. 101–12 take effect, and suits and other proceedings as in effect immediately before effective date of Pub. L. 101–12, see section 7 of Pub. L. 101–12 set out as a note under section 1201 of this title.


The California Constitution Gives Contractors, Subcontractors and Material Suppliers Constitutional Rights to Record Mechanics Liens and to Serve Public Works Stop Payment Notices.
Many years ago, wealthy individuals would use a person with few assets as their “general contractor”, who would then buy materials and hire workers and subcontractors to do most of the work.
Once the work was substantially finished, the owner would refuse to pay the phoney “general contractor”, who of course was then insolvent or bankrupt and unable to pay his laborers, subcontractors and suppliers, who thus then had no real way to get paid for their labor, work or materials.
Therefore, at a Constitutional Convention to amend the California Constitution in 1878-1879, the Workingmens’ Party succeeded in adding a mandatory Mechanics Lien right to the California Constitution, to protect the rights of laborers, contractors and suppliers to get paid..
Consequently, the California Constitution now grants mechanics lien rights to all those who furnish labor or material to a construction project.
California Constitution, Article XIV § 3.
Solit v. Tokai Bank (1999) 68 Cal. App. 4th 1435, 1446.
Hampton v. Christensen (1905) 148 Cal. 729, 737.
Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal. 3d 456, 462; Wm. R. Clarke Corp. v. Safeco Ins. Co.(1997) 15 Cal. 4th 882, 889.
Solit v. Tokai Bank (1999) 68 Cal. App. 4th 1435, 1442.
Because mechanics liens are not available where the construction project is performed on the property of the State or its political subdivisions (such as on CalTrans highway construction or other State or local County, City or District public construction jobs), in order to satisfy the Constitutional mandate to “give the laborer and materialman security for their claims." the Legislature therefore created rights to Stop Payment Notices, and Payment Bond requirements, for such public works projects. See generally, Civil Code §§ 9350 et seq; 9550 et seq.
N.V. Heathorn, Inc. v. County of San Mateo (2005) 126 Cal. App. 4th 1526, 1535.
Washington Internat. Ins. Co. v. Superior Court (1998) 62 Cal. App. 4th 981, 986.
Pub Cont. Code § 10223.
(1) “A person that provides work for a public works contract, if the work is authorized by a direct contractor..."
"Work of improvement" includes, but is not limited to: "construction, alteration, repair...in whole or in part, of, or addition, to a ...bridge,...or road." Civ. Code §8049.
In addition, the California Supreme Court has stated that a person furnishing labor or materials used in, on, or about the performance of public work may avail himself or herself of the stop payment notice procedure, providing the work or materials is furnished at the instance of the prime or direct contractor or a subcontractor having charge, in whole or in part, of the project. Theisen v. Los Angeles County (1960) 54 Cal.2d 170, 177; see also George F. Kennedy, Inc. v. Miles & Sons Constr. Div. (1970) 5 Cal.App.3d 516, 520.
The California Supreme Court further stated that "one who agrees with the prime contractor to perform a substantial specified portion of the work of construction which is the subject of the general contract in accord with the plans and specifications by which the prime contractor is bound has 'charge of the construction' of that part of the work of improvement (citation omitted) and is a subcontractor although he does not undertake to himself incorporate such portion of the projected structure into the building." Theisen, 54 Cal.2d at 183.
The material involved in Theisen consisted of 64 doors custom made in accordance with the architect's specification.
The California Supreme Court in Theisen held that the subcontractor/material supplier was entitled to invoke the stop payment notice procedure as a subcontractor/supplier.
The benefit to the construction contractor or supplier of having these Constitutional and statutory rights and remedies is that you may still be able to recover payment EVEN IF the owner or general contractor becomes insolvent or declares Bankruptcy, provided there is equity in the property, money still unpaid by the public agency, or the claims on the bond do not exceed the amount of the payment bond!!
Further, these laws also require that the unpaid claimant who has no direct contract with the property owner have previously served a 20-Day Preliminary Lien Notice (See related article) or a Payment Bond Notice..
Also, to “perfect” or enforce Mechanics Liens, Stop Payment Notice claims, or Public Works Payment Bond claims, suit must be filed very soon (sometimes as soon as 90 days after recording or serving, as discussed in the related articles above), or your Constitutional and statutory rights to such remedies may expire and become invalid!!!
Additionally, there are many technicalities to making proper and effective claims under or to these payment remedies.
Therefore, if you have not been paid, it is best to consult with an experienced Construction attorney very early on, to make sure you don’t make fatal missteps or errors, and to secure your right to be paid what is owed to you.
N.B. The contents of this Article DO NOT constitute legal advice or create an attorney-client relationship, and you may NOT rely on it without seeking legal advice regarding your particular, unique situation from a competent California Construction lawyer or Employment Law attorney.
Please also note that factual situations vary, and statutes, regulations and case law are frequently changing and evolving, and these materials thus also may be or become outdated or incorrect.
For further information on this topic and how the current law may apply to your particular contract, job and issues, Contact Us via email, phone (415)788-1881 or visit our website at www.wolfflaw.com for other contract information.
© George W. Wolff (2016), all rights reserved.


034 Pa. Code § 131.68. Discovery of records.
§ 131.68. Discovery of records.
(1) Employment, earnings or work environment.
(2) Treatment, including vocational and physical rehabilitation.
(3) Mental or physical examination.
(8) Tissue slides and samples.
(b) A party may take the discovery deposition at any time after the assignment of the petition to a judge.
(c) The notice of discovery shall conform to § 131.64(b) (relating to notice of oral depositions) and shall also contain a description of the items to be produced at the deposition.
(d) The service of the notice of discovery shall conform to § 131.64(c).
(e) Objections shall conform to § 131.65 (relating to objections to taking of oral depositions).
(f) A deposition under this section shall be in the form of a written affidavit of the custodian of records as deponent without interrogation. The affidavit shall be in the form, and contain the information specified in § 131.69 (relating to form of deposition affidavit). Title 42 Pa.C.S. § § 61516160 shall be followed, if applicable.
(g) The deposition affidavit and the records or items authenticated thereby will be admissible into evidence in the proceeding before the judge in the same manner as if the deponent appeared before the judge and testified to the authenticity of the records or items.
(h) Failure to comply with this section may result in the application of § § 131.13(m) and 131.61(d) and (e) (relating to continuances or postponements of hearings; and exchange of information).
(i) Subsections (a)(h) supersede 1 Pa. Code § § 35.14535.152.
The provisions of this § 131.68 amended under sections 401.1 and 435(a) and (c) of the Workers Compensation Act (77 P. S. § § 710 and 991(a) and (c)); section 2205 of The Administrative Code of 1929 (71 P. S. § 565); and section 414 of The Pennsylvania Occupational Disease Act (77 P. S. § 1514).
The provisions of this § 131.68 adopted March 29, 1991, effective March 30, 1991, 21 Pa.B. 1401; amended December 6, 2002, effective December 7, 2002, 32 Pa.B. 6043. Immediately preceding text appears at serial pages (261801) and (222327) to (222328).
Although this regulation gives parties the right to inspect records concerning earnings from employment; neither this regulation nor 77 P. S. § 833 authorize unlimited discovery. Discovery requests must be reasonable and relevant to the proceedings before the referee. Honesdale Borough v. Workmens Compensation Appeal Board, 659 A.2d 70 (Pa. Cmwlth. 1995); appeal denied 670 A.2d 144 (Pa. 1995).
This section cited in 34 Pa. Code § 131.62 (relating to oral depositions); and 34 Pa. Code § 131.69 (relating to form of deposition affidavit).


text:
Applicant applied to register the mark TRUCOOL in block letters for "synthetic coolant for use in the metal working industry for machining operations." [FN1] Registration was refused under Section 2(d) of the Lanham Act on the grounds that applicant's mark, as applied to applicant's goods, so resembles the mark TURCOOL--previously registered for "cutting oil" [FN2]--that confusion is likely. When this refusal was made final, applicant filed this appeal.
Applicant and the Examining Attorney have filed briefs. No oral hearing was requested.
Applicant acknowledges "that there is a close relationship between the goods" of its application and the goods of the cited registration. (Applicant's brief p. 1). "The only issue, therefore, is whether the two marks themselves are sufficiently similar as to be likely to cause confusion among purchasers of the goods." (Applicant's brief p. 1). Applicant's argument that confusion is not likely is based on its contentions (1) that TRUCOOL and TURCOOL are dissimilar in appearance, sound and meaning, and (2) that applicant's goods and registrant's goods "are sold to and used by purchasers likely to have knowledge of the source with whom they are dealing." (Applicant's brief p. 2). We disagree, and affirm the refusal to register.
"It is necessary to note at the outset that, where as here, the goods of the parties are similar in kind and/or closely related ... the degree of similarity of the marks under which these products are sold need not be as great as in the case of diverse or different goods." ECI Division of E-Systems v. Environmental Communications, 207 USPQ 443, 449 (TTAB 1980). "It is not necessary to constitute an infringement that every word of a trademark would be appropriated." Saxlehner v. Eisner & Mendelson Co., 179 U.S. 19, 33 (1900).
*2 Even assuming applicant is correct in asserting that its goods and the goods of the cited registration are sold to and used by only knowledgeable individuals, the similarity of TURCOOL and TRUCOOL is so great that confusion is nevertheless likely. Application of Computer Communications, Inc., 484 F.2d 1392, 1394, 179 USPQ 51, 52 (CCPA 1973) ("... being skilled in one's art does not necessarily preclude mistaking one trademark for another when the marks are as similar as those before us, and cover merchandise in the same general field.") See also Daltronics, Inc. v. H.L. Dalis, Inc., 158 USPQ 475, 481 (TTAB 1968).
FN1. Serial No. 600,158, filed May 22, 1986, claiming first use on April 21, 1986.
FN2. Registration No. 760,235, issued November 19, 1963 to Purex Corporation, Ltd. (California corporation), doing business as Turco Products, Inc. and renewed for an additional twenty years.
FN3. Obviously, correct pronunciation as desired by the applicant cannot be relied upon to avoid a likelihood of confusion. There is no "correct" pronunciation for a trademark. Yamaha International Corp. v. Stevenson, 196 USPQ 701, 703 (TTAB 1977). See also In re Belgrade Shoe Co., 411 F.2d 1352, 162 USPQ 227 (CCPA 1969).
FN4. It should be noted that similarity of the marks in one respect--sight, sound or meaning--will not automatically result in a finding of likelihood of confusion even if the goods are identical or closely related. Rather, the rule is that taking into account all of the relevant facts of a particular case, similarity as to one factor (sight, sound or meaning) alone "may be sufficient to support a holding that the marks are confusingly similar." Trak Inc. v. Trag Inc., 212 USPQ 846, 850 (TTAB 1981) (emphasis added). To the extent that the above cited statements from General Foods Corp. v. Wisconsin Bottling, Inc., supra and In re Mack, supra suggest that a finding of similarity as to sight, sound or meaning automatically results in a finding of likelihood of confusion when the goods are identical or closely related, said statements are hereby clarified.

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


text:
About Us - M/s New Era Shipping Ltd. | M/s New Era Shipping Ltd.
New Era Handling agency was promoted by Shri V. G. Jadhav, Shri Atul V. Jadhav, Smt. Ratnaprabha V. Jadhav in the year 1978, to undertake the work as Contractors of Zuari Industries ‘Bagging Plant’.
Later the group diversified in barge operations, registering New Era Barges Pvt. Ltd in 1983, with Mr. Atul V. Jadhav, Mr. V. G. Jadhav and Mrs. Ratnaprabha V. Jadhav, as Directors. The Company purchased a barge m.v. “GOPAL”.
The group i.e. New Era Handling Agency & New Era Barges Pvt. Ltd., was managed by Shri Atul V. Jadhav. Two barges were purchased in the subsequent years.
New Era Barges Pvt Ltd was renamed as New Era Shipping Ltd and now it is renamed again as New Era Shipping Pvt Ltd w.e.f. from 17.09.11.
During the year 2005-06, the Company entered into shipping business and acquired their first sea going vessel m.v. “HERMEEZ”. A sister vessel m.v. “KINSHIP MODESTY” was acquired in the year 2006-07.
At present we have expanded our business and now we are looking after the Management of the following ships of M/s Chowgule & Co Pvt Ltd.

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