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(4) Although the OTDA does not allow MERS to hold and transfer "legal title" to a trust deed, it may have authority to act on behalf of the beneficiary if it can demonstrate that it had a sufficiently expansive agency relationship.
A copy of the opinion in Brandrup, et al. v. Recontrust Company, N.A., et al., is available at: http://www.publications.ojd.state.or.us/docs/S060281.pdf.
A copy of the opinion in Niday v. GMAC Mortgage, LLC, et al., is available at: http://www.publications.ojd.state.or.us/docs/S060655.pdf.
The beneficiary of this Security Instrument is MERS (solely as nominee for Lender and Lender's successors and assigns) and the successors and assigns of MERS. This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note, and (ii) the performance of Borrower's covenants and agreements under this Security Instrument and the Note… Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property, and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument.
As recounted by the Oregon Supreme Court in Brandrup, following the borrowers' defaults, MERS executed a written assignment of the trust deed to the "reputed ultimate successor in interest of the original lender," and recorded that assignment in the land records. Then, the assignees appointed a trustee, such assignment also being recorded, and initiated the nonjudicial foreclosure process under the trust deeds. In each case, borrowers sought to enjoin foreclosure, claiming that (1) the requirement under the OTDA that any assignment of a trust deed by the "beneficiary" be recorded had not been satisfied; and that (2) MERS's "purported" assignment of the trust deed was ineffective, because "the principal for whom MERS purported to act as 'beneficiary' did not hold plaintiff's loan at that date."
The OTDA provides a nonjudicial alternative to the foreclosure process, meaning that lenders, or their successors in interest, could exercise their right to sell the property to satisfy the borrower's obligation without filing suit. See ORS 88.010 (except as otherwise provided by law, lien upon real property shall be foreclosed by a suit). Nonjudicial foreclosure under the OTDA is only available when a home loan is secured by a trust deed, which "conveys an interest in real property to a trustee in trust to secure the performance of an obligation the grantor or other person named in the deed owes to a beneficiary." ORS 86.705(7). So long as certain conditions are satisfied, the trustee appointed under a trust deed may advertise and sell the property to the highest bidder without judicial involvement. See ORS 86.710; ORS 86.755.
One such condition, which was considered at length by the Oregon Supreme Court, involved the recording of "[t]he trust deed, any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee in the mortgage records of the counties in which the property described in the deed is situated." ORS 86.735(1). The Court recognized that, although mortgages may be "assigned by an instrument in writing," ORS 86.060, they have also been held to "follow" the promissory notes that they secure, such that "by operation of law," the sale or transfer of the note effects an equitable transfer of the mortgage. See Bamberger v. Geiser, 24 Or. 203, 206-07 (1893). Although recording a mortgage or trust deed assignment is not required to make the transfer legally effective between the parties, it is "necessary and desirable" for protecting an assignee's interest under the security instrument against a purchaser in good faith for valuable consideration. See ORS 93.640; Williamette Col. & Credit Serv. V. Gray, 157 Or. 77, 83 (1937). However, as stated by the Court, the recordation of a trust deed assignment "by the trustee or the beneficiary" is required before the nonjudicial foreclosure procedures of the OTDA may be invoked. ORS 86.735(1).
First, the Oregon Supreme Court held that, for the purposes of ORS 86.735(1), the "beneficiary" is the "lender to whom the obligation that the trust deed secures is owed," precluding an entity like MERS, which is not a lender, from being a trust deed's "beneficiary" unless it is the lender's successor in interest. In so holding, the Court considered the statutory definition of "beneficiary" as a person "named or otherwise designated in a trust deed as the person for whose benefit a trust deed is given." ORS 86.705. According to the Court, the OTDA contemplates a "unitary beneficiary status," such that the person with the right to repayment of the underlying obligation also controls the foreclosure process, which would be undermined by permitting another party to act as agent or nominee.
Although the lender defendants argued that, under the statute, parties to a trust deed could "name" or "designate" whomever they choose to serve as beneficiary, the Court disagreed that the designation of a beneficiary is "purely a matter of contract." It stated that the resolution of this question did not hinge on the parties' intent but on legislative intent, which cannot be altered by agreement. See e.g. Ocean A. & G. Corp., Ltd. v. Albina M.I. Wks., 260 P. 229 (1927).
Second, the Oregon Supreme Court held that, because MERS was not conveyed the beneficial right to repayment, the provision that MERS holds "legal title" in the trust deed and may exercise rights under it does not alter the trust deed's designation of the lender as beneficiary or make MERS eligible to serve in that capacity. The lender defendants argued that, by defining MERS as the beneficiary "acting solely as a nominee for Lender and Lender's successors and assigns," the trust deed clearly convey an intention that MERS act as agent for the lender or its successors. In response, the Court noted that, while the lender defendants support MER's authority to exercise all of lender's rights and interests, "the trust deed fails to speak to the one interest that an entity must have to qualify as a beneficiary under [the OTDA]." The Court reiterated that the beneficiary is the person to whom the obligation that the trust deed secures is owed. ORS 86.705(2). As interpreted by the Oregon Supreme Court, the trust deed does not convey to MERS the beneficial right to repayment of the secured obligation, thereby making MERS ineligible to serve as beneficiary.
Third, the Oregon Supreme Court was asked whether assignments "by operation of law" – where the promissory note is transferred and the mortgage follows – are included in the statutory recording requirement of ORS 86.735(1). Although the Court noted the text of the OTDA was "not conclusive" with respect to this issue, the Court found it significant that the recording requirement in ORS 86.735 assumes the existence of an assignment in recordable form, and that the transfer of a promissory note cannot serve that function. Considering the state of Oregon law at the time that the OTDA was enacted, the Court found that "assignments of the trust deed" under ORS 86.735 mean "written assignments that are executed and acknowledge… not a post hoc memorialization of a transfer of the secured obligation created solely for the purpose of recording." See Barringer v. Loder, 47 Or. 223, 230 (1905). Therefore, the Oregon Supreme Court held that the OTDA's recording requirement does not require recordation of assignments of trust deeds by operation of law.
Fourth, when asked whether the OTDA allows MERS to retain and transfer legal title to a trust deed as nominee for the lender after the note has been transferred, the Oregon Supreme Court split its analysis into two parts. As an initial matter, the Court held that the OTDA does not allow MERS to hold and transfer "legal title" to a trust deed. The logical interpretation of the OTDA, according to the Court, is that the trustee holds legal title to the lien conveyed by the trust deed and the beneficiary holds equitable title to that lien. As the Court had already established that MERS is neither trustee nor beneficiary, MERS holds "no interest at all in the lien conveyed by the trust deed."
However, the Oregon Supreme Court was unable to determine whether MERS may nevertheless have authority as an agent for the original lender and its successors to act on their behalves with respect to a transfer of interest under a trust deed. The lender defendants argued in the alternative that MERS had authority as an agent of the original beneficiary and any successor to take the steps required to carry out the nonjudicial foreclosure process. However, the Court found that the accuracy of that assertion depends on whether MERS qualifies as an agent under Oregon law. See Vaughn v. First Transit, Inc., 346 Or. 128, 136 (2009) (defining the agency relationship in Oregon). Furthermore, the Court held that the trust deeds themselves do not establish the necessary relationship and that the agency relationship depends on "evidence with respect to who ultimately holds the relevant interests in the notes and trust deeds, and whether that person and each of its predecessors in interest conferred authority on MERS to act on their behalves in the necessary respects." Finding such evidence not present in the record, the Oregon Supreme Court was unable to determine whether MERS acted with authority as an agent of the lender and its successors in interest.
In Niday, the Oregon Supreme Court applied its answers in Brandrup to a dispute that came before it on appeal. Similar to Brandrup, Borrower sued MERS, their lender, and others, arguing that no defendant had a legal or beneficial interest in the trust deed that would allow it to proceed to foreclosure under the OTDA. The trial court granted Defendants' motion for summary judgment and the Oregon Court of Appeals reversed. Finding a genuine issue of material fact to exist, albeit a different on from the Court of Appeals, the Oregon Supreme Court affirmed.
The Oregon Supreme Court's holdings in Niday were substantially similar to its conclusions in Brandrup. Ultimately, the Court found that an issue of fact remained as to whether MERS had authority to act for the lender's successors in interest. According to the Court, even if MERS lacks authority to act as beneficiary, it may have authority to act on behalf of the beneficiary if it can demonstrate that it had an agency relationship with the beneficiary that is "sufficiently expansive."
Although in Brandrup the Court addressed discussed that possibility that MERS would have authority to assign a trust deed, the Court held the same reasoning "would seem to apply equally" to the issue of MERS's authority to foreclose the trust deed. "In either case, MERS' authority to act as the beneficiary's agent depends on who succeeded to the lender's rights, whether those persons manifested consent that MERS act on their behalf and subject to their control, and whether MERS has agreed to so act."
Accordingly, in Niday, the Oregon Supreme Court affirmed the decision of the Court of Appeals, reversing the trial court's judgment and remanding the case for further proceedings.

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Federal courts generally refuse to hear claims that were defaulted in state court because of an “independent and adequate state procedural rule” that the petitioner failed to follow; and which, in turn, caused his or her state habeas corpus petition to be denied on procedural grounds. Avoiding this “kiss of death” in the first place is Job One. If that fails, however, trying to save oneself from the default is discussed here.
A state court rule is “adequate” if it is firmly established and regularly followed by the state courts as a basis for denying state habeas corpus claims. For example, almost all the states do not permit a petitioner to raise a claim on habeas corpus that could have been raised on direct appeal. This is a principle that, in California, is known as the “Dixon Rule”.
In Johnson v. Lee, 136 S.Ct. 1802 (2016), SCOTUS held that the Dixon Rule is “adequate” as a bar to federal habeas corpus, even though it is not followed in every case as a basis for denying habeas corpus in the California Supreme Court. Hence, and from now on, if a California state habeas corpus petition is denied because the Dixon Rule was violated, that will automatically constitute a “procedural default” that will prevent the petition from being heard on the merits on federal habeas corpus.
Johnson is bad news for habeas corpus petitioners because, where a state court habeas corpus claim is denied on the basis of procedural rule that is “regularly” applied, that denial will bar consideration of the petition in federal court, even if it can be shown, as the petitioner did in Johnson, that the rule in question was not always followed in the state courts, and sometimes was even ignored.
On the other hand, there is some light in the Johnson tunnel, because the court emphasized that it was applying the Dixon Rule to bar consideration in federal court largely because of the “exceptions” that were built into the rule by the California courts. Although Johnson doesn’t specifically identify what those “exceptions” are, it cites to a California Supreme Court decision which talks about “special circumstances” that can “excuse” a failure to bring the claim on direct appeal”. And, one of these exceptions is where the habeas petition contains something of “substance” that was not already in the record on direct appeal. That suggests ineffective assistance of counsel (“IAC”), a common habeas corpus claim which is almost never developed on the appellate record, because such a claim is based, by definition, on evidence which the trial attorney did not introduce at trial, and hence was not a part of the record on appeal.
Thus, where one is bringing a claim on habeas corpus that is based largely on the existing record, be wary of a Dixon Rule default, and try to avoid it by supporting the claim with evidence that, because of IAC, trial counsel failed to introduce at trial.
Avoiding a miscarriage of justice requires “a showing by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the defendant guilty under the applicable state law.” Sawyer v. Whitley, 505 U.S. 333 (1992). Such a showing -- perhaps the hardest to make in the entire American legal system – is commonly known as the “actual innocence” exception to procedural default.
Actual innocence claims must be based on new evidence that was not presented at trial, and which can satisfy the very demanding standard set forth above. When deciding the ultimate question of innocence, the habeas court must consider all the evidence – old, new, incriminating, and exculpatory – and then decide whether it is more probable than not that no reasonable juror, considering all the evidence, would have voted for guilty.
Actual innocence can be used as a gateway to the federal court for a claim that would otherwise be barred by some procedural default. For example, a claim that would otherwise be barred by the AEDPA statute of limitations will be considered on the merits if actual innocence is shown and the prisoner has not “unreasonably delayed” in bringing the claim to federal court.
But, to get relief, there’s more: In addition to meeting the very demanding test for actual innocence, the petitioner must also demonstrate a separate constitutional violation – apart from his or her innocence – which “probably” caused the guilty verdict. This latter principle was applied and explained in the recent case of Jenkins v. Hutton, 137 S.Ct. 1769 (2017). In Jenkins, the petitioner filed a federal habeas corpus petition alleging a claim that he could have brought on direct appeal – a miscue that, as explained in the previous section, constituted a procedural default that would normally bar the claim from being heard in federal court. Specifically, the defaulted claim was that the trial court had failed to instruct the jury that, at the penalty phase, Jenkins could only be sentenced to death on the basis of aggravating circumstances which the jury had found to be true during the guilt phase of the trial. To get around the default, Jenkins had argued that he was actually innocent of the death penalty, and that this error in the instruction was the separate constitutional violation he needed to show to get relief. The Sixth Circuit accepted these arguments and reached the merits of Jenkins’ claim, but SCOTUS reversed. The Supreme Court held that the lower court had erred in reaching the merits because, in considering the instructional error claim, that court had considered whether the jury might have relied on aggravating circumstances not found and the guilt phase, and not whether a properly instructed jury could have recommended death. In other words, the lower court had erred by reaching the merits of a defaulted claim without requiring the petitioner to show, in addition to actual innocence, that a separate constitutional error “probably” rather then just “possibly” contributed to the guilty verdict.
A petitioner who has procedurally defaulted, but who cannot thread the needle of “actual innocence,” can still escape the consequence of the default by showing “cause and prejudice.” To do so, s/he must demonstrate “cause” for the default and actual “prejudice” as result of the constitutional violation. To show “cause,” a petitioner must show that an objective factor impeded raising the claim, such as interference by prison officials, ineffective assistance (“IAC”) of trial or appellate counsel; or, that the factual or legal basis for the claim was undiscoverable. This section deals with using IAC of postconviction counsel as “cause” to excuse a procedurally defaulted IAC claim.
In Coleman v. Thompson, 501 U.S. 722 (1991), post-conviction counsel missed a filing deadline in state court. As a result, all the claims from that state habeas petition were barred from federal review as procedurally defaulted based on the state’s “independent and adequate” rule regarding the filing deadline. Coleman argued that his postconviction attorney’s error in missing the deadline constituted IAC and thus was sufficient “cause” for the default. The U.S. Supreme Court disagreed, holding that attorney error can be “cause” only if it constitutes IAC violative of the 6th Amendment. The Court reasoned that, because there is no constitutional right to an attorney in state postconviction proceedings, there could be no 6th Amendment violation. Thus, Coleman’s “cause” showing required proof of some external impediment preventing petitioner or counsel from properly constructing or raising the claim. The Court held that attorney ignorance or inadvertence is not “cause”, because the attorney is the petitioner's agent when acting or failing to act in furtherance of the litigation, and the petitioner must bear the risk of attorney error.
Flash forward to 2012. In Martinez v. Ryan, 566 U.S. 1, the U.S. Supreme Court modified Coleman by allowing for a very narrow exception to the general rule that error by postconviction counsel does not constitute “cause.” The Court held that if a petitioner failed to properly raise a trial counsel IAC claim in a state where such a claim was required to be brought in initial postconviction relief proceedings rather than on direct appeal, he could argue that postconviction counsel’s IAC constituted “cause” to excuse the procedurally defaulted trial counsel IAC claim. In Trevino v. Thaler, 133 S.Ct. 1191 (2013), the Supreme Court expanded that exception to include states where, even if an IAC claim was not required to be brought in post-conviction relief proceedings, the state’s procedural framework was such that an IAC claim could not meaningfully be raised on direct appeal.
Narrow means narrow. In Davila v. Davis, 137 S.Ct. 2058 (2017), SCOTUS refused to extend the Martinez/Trevino holdings to ineffective assistance of appellate counsel claims that were procedurally defaulted by postconviction counsel’s ineffectiveness. Thus, just because a trial counsel IAC claim can be revived in federal court after having been procedurally defaulted below due to postconviction counsel’s error, an appellate IAC claim cannot.
You are probably aware of the Strickland v. Washington two-part test to prove ineffective assistance of counsel (“IAC”): You must show (1) that reasonably competent counsel would not have acted or not acted the way your counsel did; and (2) that there is a reasonable probability that but for your counsel’s unprofessional error(s), the results of the proceeding would have been different, e.g., you would not have been convicted. The U.S. Supreme Court in Buck v. Davis, 137 S.Ct. 759 (2017) recently reaffirmed the definition of prejudice by stating what habeas attorneys have been arguing for decades: If it is reasonably probable that “at least one juror would have harbored a reasonable doubt,” then you have proven prejudice sufficient for your IAC claim. It is also important to remember that the “reasonable probability” standard is even less demanding than the preponderance of the evidence standard. Strickland made clear that the error merely need to “undermine confidence in the outcome.” In other words, if you can manage to show deficient performance, “things that make you go hmmm...”. may get you past the Strickland test for prejudice.
(Why did the Chicken cross the Road?
Alas, your habeas petition was denied in the U.S. District Court. Now what? You need a Certificate of Appealability (“COA”) and you need it fast! Usually, the District Court will tell you in its denial order whether it is granting or denying a COA on one or more of your claims. If they grant it, you’re good to go! File your Notice of Appeal (“NOA”) within the 30-day time limit and you can proceed to the Circuit Court of Appeals to appeal your case. If, however, the District Court denies your COA, you must file a request for a COA in the Circuit Court within 35 days of the district court judgment. If you choose to file a request for a COA in the Circuit Court or in the District Court, all you need to show is that your claim is “reasonably debatable” by “jurists of reason.” Wait what? Think about it this way: If a reasonable legal argument can be made that the district court was wrong in denying your claim, or if your claim is adequately presented to deserve encouragement to proceed further, you win the chance to fight another day – in the Circuit Court of Appeals!
The U.S. Supreme Court in Buck v. Davis, 137 S.Ct. 759 (2017) recently reaffirmed this principle by reversing the 5th Circuit’s denial of a COA after the denial of an ineffective assistance of counsel claim in the District Court. SCOTUS emphasized that the initial determination for whether a COA should be granted is simply: “whether a claim is reasonably debatable, and if so, an appeal is the normal course.” 28 U.S.C. 2253 The Circuit court should not deny a COA by analyzing the issue on its merits (doing so exceeds the scope of the COA analysis). So, just because the District Court does not think the chicken has a good reason to cross the road, the Circuit Court panel just might!
Law partners Kent A. Russell and Tara Hoveland specialize in habeas corpus. Kent has practiced criminal law for over 45 years, has consistently received Martindale- Hubbel’s highest rating for excellence and legal ethics, and is the author of the California Habeas Handbook 2.0, which thoroughly explains state and federal habeas corpus, parole, and other post-conviction remedies. Tara, who has 25+ years of experience and is a certified specialist in appellate law, is a contributing editor for the Handbook, and is admitted in both CA and AZ. To buy the Handbook, use the optional order form on the website – russellhabeas.com – or contact the office by mail (3169 Washington Street, San Francisco, CA 94115) or by phone (415-563-8640).

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Филипп Олегович Милович родился 24 июля 1987 года, окончил МИСиС в 2009 году, в 2013 получил степень кандидата физико-математических наук по специальности 01.04.10 Физика полупроводников. Тема диссертации "Структура и механические свойства кристаллов ZrО2, частично стабилизированных Y2О3".
1 Electrotransport Characteristics of Ceramic and Single Crystal Materials with the (ZrO2)0.89(Sc2O3)0.10(Y2O3)0.01 Composition Kuritsyna I.E., Bredikhin S.I., Agarkov D.A., Borik M.A., Kulebyakin A.V., Milovich F.O., Lomonova E.E., Myzina V.A., Tabachkova N.Yu. Russian Journal of Electrochemistry. 2018 – V. 54. – №. 6. – P. 481-485.
2 Investigation of wear and diffusion processes on rake faces of carbide inserts with Ti-TiN-(Ti,Al,Si)N composite nanostructured coating A. Vereschaka, V. Tabakov, S. Grigoriev, N. Sitnikov, N. Andreev, F. Milovich Wear. 2018 – V. 416-417. – P. 72-80.
3 Investigation of wear dynamics for cutting tools with multilayer composite nanostructured coatings in turning constructional steel Vereschaka A., Tabakov V., Grigoriev S., Sitnikov N., Oganyan G., Andreev N., Milovich F. Wear. 2018 – V. 420-421. – P. 17-37.
4 Magnetic and magnetocaloric properties of (1 − x)La0.7Sr0.3MnO3/xNaF composites Gavrilova T.P., Gilmutdinov I.F., Deeva J.A., Chupakhina T.I., Lyadov N.M., Faizrakhmanov I.A., Milovich F.O., Kabirov Yu.V., Eremina R.M. Journal of Magnetism and Magnetic Materials. 2018 – V. 467. – P. 49-57.
5 Microstructure, composition, and luminescent properties of bismuth-doped porous glass and optical fiber preforms 2019 L.D.Iskhakova, V.M.Mashinsky, F.O. Milovich, V.V. Velmiskin, E.A. Plastinin, S.V. Firstov, M.V. Lukashova, P.A. Somov, E.M. Dianov Journal of Non-Crystalline Solids. 2018 – V. 503-504. – P. 28-35.
6 Properties of a granulated nitrogen-doped graphene oxide aerogel Baskakov S.A., Manzhos R.A., Lobach A.S., Baskakova Y.V., Kulikov A.V., Martynenko V.M., Milovich F.O., Kumar Y., Michtchenko A., Kabachkov E.N., Krivenko A.G., Shulga Y.M. Journal of Non-Crystalline Solids. 2018 – V. 498. – P. 236-243.
7 Structural and magnetic properties of nanostructured composites (SrFe12O19)x(CaCu3Ti4O12)1-x Gavrilova T.P., Deeva J.A., Yatsyk I.V., Yagfarova A.R., Gilmutdinov I.F., Lyadov N.M., Milovich F.O., Chupakhina T.I., Eremina R.M. Physica B: Condensed Matter. 2018 – V. 536. – P. 303-309.
8 Structure and Transport Properties of Zirconia-Based Solid Solution Crystals Co-Doped with Scandium and Cerium Oxides Agarkov D.A., Borik M.A., Bredikhin S.I., Kulebyakin A.V., Kuritsyna I.E., Lomonova E.E., Milovich F.O., Myzina V.A., Osiko V.V., Agarkova E.A., Tabachkova N.Y. Russian Journal of Electrochemistry. 2018 – V. 54. – №. 6. – P. 459-463.
9 Structure and transport properties of melt grown Sc2O3 and CeO2 doped ZrO2 crystals Agarkov D.A., Borik M.A., Bublik V.T., Bredikhin S.I., Chislov A.S., Kulebyakin A.V., Kuritsyna I.E., Lomonova E.E., Milovich F.O., Myzina V.A., Osiko V.V., Tabachkova N.Yu. Solid State Ionics. 2018 – V. 322. – P. 24-29.
10 Use of nanoporous glass for the fabrication of heavily bismuth-doped active optical fibres Dianov E.M., Yang L., Iskhakova L.D., Vel’miskin V.V., Plastinin E.A., Milovich F.O., Mashinsky V.M., Firstov S.V. Quantum Electronics. 2018 – V. 48. – №. 7. – P. 658-661.
11 Change in the mechanism of conductivity in ZrO2-based crystals depending on the content of stabilizing Y2O3 additive Borik M.A., Bredikhin S.I., Bublik V.T., Kulebyakin A.V., Kuritsyna I.E., Lomonova E.E., Milovich F.O., Myzina V.A., Osiko V.V., Seryakov S.V., Tabachkova N.Yu. Technical Physics Letters. 2017 – V. 43. – №. 3. – P. 289-292.
12 Effect of the valence state of ce ions on the phase stability and mechanical properties of the crystals of ZrO2-based solid solutions Borik M.A., Bublik V.T., Eremina R.M., Kulebyakin A.V., Lomonova E.E., Milovich F.O., Myzina V.A., Osiko V.V., Tabachkova N.Y., Fazlizhanov I.I., Shustov V.A., Yatsyk I.V. Physics of the Solid State. 2017 – V. 59. – №. 10. – P. 1934-1939.
13 Influence of the yttria dopant on the structure and properties of (ZrO2)0.91–x (Sc2O3)0.09(Y2O3) х (x = 0–0.02) crystals Agarkov D.A., Borik M.A., Bredikhin S.I., Bublik V.T., Iskhakova L.D., Kulebyakin A.V., Kuritsyna I.E., Lomonova E.E., Milovich F.O., Myzina V.A., Seryakov S.V., Tabachkova N.Yu. Russian Microelectronics. 2017 – V. 45. – №. 8-9. – P. 625-632.
14 New data on the composition of products of ultrasonic irradiation of graphite in N-methylpyrrolidone Shulga Yu.M., Lobach A.S., Milovich F.O., Shulga N.Yu., Kiselev D.A., Baskakov S.A. High Energy Chemistry. 2017 – V. 51. – №. 2. – P. 145-147.
15 Phase composition, structure and properties of (ZrO2)1−x−y(Sc2O3)x(Y2O3)y solid solution crystals (x=0.08–0.11; y=0.01–0.02) grown by directional crystallization of the melt Borik M.A., Bredikhin S.I., Bublik V.T., Kulebyakin A.V., Kuritsyna I.E., Lomonova E.E., Milovich F.O., Myzina V.A., Osiko V.V., Ryabochkina P.A., Seryakov S.V., Tabachkova N.Yu. Journal of Crystal Growth. 2017 – V. 457. – P. 122-127.
16 Structure and conductivity of yttria and scandia-doped zirconia crystals grown by skull melting Borik M.A., Bredikhin S.I., Bublik V.T., Kulebyakin A.V., Kuritsyna I.E., Lomonova E.E., Milovich P.O., Myzina V.A., Osiko V.V., Ryabochkina P.A., Tabachkova N.Y. Journal of the American Ceramic Society. 2017 – V. 100. – №. 12. – P. 5536-5547.
17 The impact of structural changes in ZrO2-Y2O3 solid solution crystals grown by directional crystallization of the melt on their transport characteristics Borik M.A., Bredikhin S.I., Bublik V.T., Kulebyakin A.V., Kuritsyna I.E., Lomonova E.E., Milovich F.O., Myzina V.A., Osiko V.V., Ryabochkina P.A., Tabachkova N.Y., Volkova T.V. Materials Letters. 2017 – V. 205. – P. 186-189.
18 Identification of Nanocrystalline Inclusions in Bismuth-Doped Silica Fibers and Preforms Iskhakova L.D., Milovich F.O., Mashinsky V.M., Zlenko A.S., Borisovsky S.E., Dianov E.M. Microscopy and Microanalysis. 2016 – V. 22. – №. 5. – P. 987-996.
19 Melt Growth, Structure and Properties of (ZrO2)1-x(Sc2O3)x Solid Solution Crystals (x=0.035–0.11) Borik M.A., Bredikhin S.I., Kulebyakin A.V., Kuritsyna I.E., Lomonova E.E., Milovich F.O., Myzina V.A., Osiko V.V., Panov V.A., Ryabochkina P.A., Seryakov S.V., Tabachkova N.Yu. Journal of Crystal Growth. 2016 – V. 443. – P. 54-61.
20 Microwave method for synthesis of micro- and nanostructures with controllable composition during gyrotron discharge Batanov G.M., Borzosekov V.D., Golberg D., Iskhakova L.D., Kolik L.V., Konchekov E.M., Kharchev N.K., Letunov A.A., Malakhov D.V., Milovich F.O., Obraztsova E.A., Petrov A.E., Ryabikina I.G., Sarksian K.A., Stepakhin V.D., Skvortsova N.N. Journal of Nanophotonics. 2016 – V. 10. – №. 1. – P. 012520-1-12.
21 Structure and phase composition of thin TiO2 films grown on the surface of metallized track-etched polyethylene terephthalate membranes by reactive magnetron sputtering Artoshina O.V., Milovich F.O., Rossouw A., Gorberg B.L., Iskhakova L.D., Ermakov R.P., Semina V.K., Kochnev Yu.K., Nechaev A.N., Apel P.Yu. Inorganic Materials. 2016 – V. 57. – №. 8. – P. 1579-1587.
22 Structure and properties of the crystals of solid electrolytes (ZrO2)1 – x – y(Sc2O3)x(Y2O3)y (x = 0.035–0.11, y = 0–0.02) prepared by selective melt crystallization Borik M.A., Bredikhin S.I., Bublik V.T., Kulebyakin A.V., Kuritsyna I.E., Lomonova E.E., Milovich F.O., Myzina V.A., Osiko V.V., Seryakov S.V., Tabachkova N.Yu. Russian Journal of Electrochemistry. 2016 – V. 52. – №. 7. – P. 655-661.
23 Change in the phase composition, structure and mechanical properties of directed melt crystallised partially stabilised zirconia crystals depending on the concentration of Y2O3 Borik M.A., Bublik V.T., Kulebyakin A.V., Lomonova E.E., Milovich F.O., Myzina V.A., Osiko V.V., Seryakov S.V., Tabachkova N.Y. Journal of the European Ceramic Society. 2015 – V. 35. – №. 6. – P. 1889-1894.
24 Nanostructured crystals of partially yttria-stabilized and Nd3+ doped zirconia: Structure and luminescent properties Borik M.A., Volkova T.V., Kulebyakin A.V., Lomonova E.E., Milovich F.O., Myzina V.A., Osiko V.V., Ryabochkina P.A., Tabachkova N.Yu., Uslamina M.A., Ushakov S.N., Chabushkin A.N. Journal of Alloys and Compounds. 2015 – V. 621. – P. 295-300.
25 Phase composition and spectral-luminescent properties of yttrium partially stabilized zirconia crystals doped with Nd2O3 and CeO2 Borik M.A., Volkova T.V., Kulebyakin A.V., Lomonova E.E., Milovich F.O., Myzina V.A., Ryabochkina P.A., Tabachkova N.Yu., Chabushkin A.N. Optics and Spectroscopy. 2015 – V. 118. – №. 6. – P. 918-923.
26 Structure, Phase Composition and Mechanical Properties of ZrO2Partially Stabilized with Y2O3 Borik M.A., Bublik V.T., Vilkova M.Y., Kulebyakin A.V., Lomonova E.E., Milovich P.O., Myzina V.A., Ryabochkina P.A., Tabachkova N.Y., Ushakov S.N. Modern Electronic Materials. 2015 – V. 1. – №. 1. – P. 26-31.
27 Structure, phase composition, and spectral-luminescent properties of ZrO2-Y2O3-Er2O3 crystals Ryabochkina P.A., Borik M.A., Lomonova E.E., Kulebyakin A.V., Milovich F.O., Myzina V.A., Tabachkova N.Yu., Sidorova N.V., Chabushkin A.N. Physics of the Solid State. 2015 – V. 57. – №. 8. – P. 1579-1587.
28 Структура, фазовый состав и спектрально-люминесцентные свойства кристаллов ZrO2-Y2O3-Er2O3 Рябочкина П.А., Борик М.А., Ломонова Е.Е., Кулебякин А.В., Милович Ф.О., Мызина В.А., Табачкова Н.Ю., Сидорова Н.В., Чабушкин А.Н. Физика Твердого Тела. 2015 – Т. 57. – №. 8. – С. 1549-1557.
29 Phase composition, structure and mechanical properties of PSZ (partially stabilized zirconia) crystals as a function of stabilizing impurity content Borik M.A., Bublik V.T., Kulebyakin A.V., Lomonova E.E., Milovich F.O., Myzina V.A., Osiko V.V., Tabachkova N.Y. Journal of Alloys and Compounds. 2014 – V. 586. – №. 1. – P. S231-S235.
30 Структура, фазовый состав и механические свойства кристаллов ZrO2, частично стабилизированных Y2O3 Борик М.А., Бублик В.Т., Вилкова М.Ю., Кулебякин А.В., Ломонова Е.Е., Милович Ф.О., Мызина В.А., Рябочкина П.А., Табачкова Н.Ю., Ушаков С.Н. Известия ВУЗОВ. Материалы Электронной Техники. 2014 – №. 1. – С. 58-64.
31 Фазовый состав и спектрально-люминесцентные свойства кристаллов частично стабилизированного иттрием диоксида циркония, легированных Nd2O3 и CeO2 Борик М.А., Волкова Т.В., Кулебякин А.В., Ломонова Е.Е., Милович Ф.О., Мызина В.А., Рябочкина П.А., Табачкова Н.Ю., Чабушкин А.Н. Оптика и Спектроскопия. 2014 – Т. 118. – №. 6. – С. 949-955.
32 Application of microwave discharge for the synthesis of TiB2 and BN nano- and microcrystals in a mixture of Ti-B powders in a nitrogen atmosphere Batanov G.M., Berezhetskaya N.K., Borzosekov V.D., Iskhakova L.D., Kolik L.V., Konchekov E.M., Letunov A.A., Malakhov D.V., Milovich F.O., Obraztsova E.A., Obraztsova E.D., Petrov A.E., Sarksyan K.A., Skvortsova N.N., Stepakhin V.D., Kharchev N.K., Plasma Physics Reports. 2013 – V. 39. – №. 10. – P. 843-848.
33 Features of a technique for investigation of partially stabilized zirconia crystals Borik M.A., Bublik V.T., Kulebyakin A.V., Lomonova E.E., Myzina V.A., Milovich F.O., Tabachkova N.Yu. Inorganic Materials. 2013 – V. 49. – №. 15. – P. 1338-1342.
34 Structure and Mechanical Properties of Crystals of Partially Stabilized Zirconia after Thermal Treatment Borik M.A., Bublik V.T., Kulebyakin A.V., Lomonova E.E., Milovich F.O., Myzina V.A., Osiko V.V., Seryakov S.V., Tabachkova N.Y. Physics of the Solid State. 2013 – V. 55. – №. 8. – P. 1690-1696.
35 Study of the structural and physicochemical properties of nanostructured zirconia crystals for fabricating an innovative electrosurgical tool Belov S.V., Borik M.A., Vishnyakova M.A., Danileiko Yu.K., Kulebyakin A.V., Lomonova E.E., Milovich F.O., Myzina V.A., Osiko V.V., Salyuk V.A., Tabachkova N.Yu. Doklady Physics. 2013 – V. 58. – №. 5. – P. 161-164.
36 Исследование структурных и физико-химических свойств наноструктурированных кристаллов диоксида циркония с целью создания инновационного электрохирургического инструмента Белов С.В., Борик М.А., Вишнякова М.А., Данилейко Ю.К., Кулебякин А.В., Ломонова Е.Е., Милович Ф.О., Мызина В.А., Осико В.В., Салюк В.А., Табачкова Н.Ю. Доклады Академии Наук. 2013 – Т. 450. – №. 1. – С. 32.
37 Применение микроволнового разряда для синтеза нано- и микрокристаллов TiB2 и BN в смеси порошков Ti-B в атмосфере азота Батанов Г.М., Бережецкая Н.К., Борзосеков В.Д., Исхакова Л.Д., Колик Л.В., Кончеков Е.М., Летунов А.А., Малахов Д.В., Милович Ф.О., Образцова Е.А., Образцова Е.Д., Петров А.Е., Сарксян К.А., Скворцова Н.Н., Степахин В.Д., Харчев Н.К. Физика Плазмы. 2013 – Т. 39. – №. 10. – С. 942.
38 Структура и механические свойства кристаллов частично стабилизированного диоксида циркония после термообработки Борик М.А., Бублик В.Т., Кулебякин А.В., Ломонова Е.Е., Милович Ф.О., Мызина В.А., Осико В.В., Серяков С.В., Табачкова Н.Ю. Физика Твердого Тела. 2013 – Т. 55. – №. 8. – С. 1578-1584.
39 Effect of Y2O3 stabilizer content and annealing on the structural transformations of ZrO2 Borik M.A., Bublik V.T., Vishnyakova M.A., Kulebyakin A.V., Lomonova E.E., Myzina V.A., Milovich F.O., Osiko V.V., Tabachkova N.Yu. Inorganic Materials. 2012 – V. 48. – №. 2. – P. 156-160.
40 Влияние стабилизирующей примеси Y2O3 и отжига на структурные превращения в ZrO2 Борик М.А., Бублик В.Т., Вишнякова М.А., Кулебякин А.В., Ломонова Е.Е., Мызина В.А., Милович Ф.О., Осико В.В., Табачкова Н.Ю. Неорганические Материалы. 2012 – Т. 48. – №. 2. – С. 200-204.
41 Особенности методики исследования кристаллов частично стабилизированного диоксида циркония Борик М.А., Бублик В.Т., Кулебякин А.В., Ломонова Е.Е., Мызина В.А., Милович Ф.О., Табачкова Н.Ю. Заводская Лаборатория. Диагностика Материалов. 2012 – Т. 78. – №. 7. – С. 26-30.
Кафедра Материаловедения Полупроводников и Диэлектриков Московского Института Стали и Сплавов готовит специалистов широкого профиля для научной и производственной работы в области аналитических методов исследования, разработки и производства различных материалов, в том числе биосовместимых материалов (полупроводники, диэлектрики, металлы), используемых в микро- и наноэлектронике, оптоэлектронике, солнечной энергетике, силовой электронике и в устройствах отображения информации, в медицине.

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One of the biggest concerns for most Americans is the size and power of government,specifically the “regulatory arm” of the Federal bureaucracy. Truckers know this all too well. Many times, in the name of “safety,” the Federal Motor Carrier Safety Administration (“FMCSA”) broadens their reach by promulgating new rules and regulations as we, the members of the industry, stand by scratching our heads, knowing that these same regulations, which are supposedly enacted to increase safety, often actually create unsafe road conditions when implemented, as a matter of “unintended consequences.” (Example: Speed Limiters).
The following write up is in response to the Oct 17th Press Release that went out by the Federal Trade Commission.
Imagine this: you’re running your online truck permit business, and all of a sudden you have all your assets frozen without notice or due process, not able to access any funds, and control of your business is wisked out of your hands, and placed into the hands of a court-appointed lawyer, and you have no idea what’s happened!
Recently, the United States Federal Trade Commission (“FTC”) convinced a Federal Judge into believing that a 15 year old small business truck permit company Dotauthority.com and its sister company Dotfilings.com, were allegedly engaged in deceptive business practices and that there was an emergency situation that required such extreme measures. FTC was granted, ex-parte, a temporary restraining order (“TRO”) by the United States District Court for the Southern District of Florida last month. That means that government lawyers secretly went to a Federal judge, told only their side of the story, convinced His Honor there was a bona fide emergency situation that required him to immediately act without giving the other side a chance to know about the request. The judge believed what he was told and he then immediately froze all of the owners’ personal and business assets and allowed the government to seize the businesses—all without a hearing!
Unbeknownst to the owners of these companies, including James Lamb. We have had Mr Lamb on our show numerous times (James has– through his volunteer efforts as chairman of his “Small Business in Trucking Coalition”– promoted safe truck parking for drivers, helped a trucker beat bogus ‘obstruction of justice’ charges when they woke the driver up during DOT mandated rest time, promoted truckers’ right to carry interstate with pro-gun legislation that is about to be introduced in the US Senate, and has generally promoted and protected the rights of small businesses against big business encroachment).
All of their personal and business assets, including bank accounts were frozen for 2 weeks until the September 29th hearing in front of the same Federal Judge. James was left with no means to feed his one year old baby daughter, other than the goodwill of friends and relatives and his cash on hand.
After hearing the evidence, including James’ personal testimony on September 29th, the same judge reversed his prior decision and unfroze James’ assets and returned control of the businesses back over to James and his partner. While the judge did issue a preliminary injunction that will remain in place from now until the case goes forward for trial, the judge suggested the businesses should continue to be allowed to operate and he simply strengthened James’ existing disclaimers in the interest of clarity. It would appear the FTC is now trying to kill the businesses by declaring a public relations war on the businesses through the media in response. And that plan may very well be working.
Reading between the lines, what this basically means is: whereas the FTC got the judge to originally take over the businesses and freeze all assets immediately, as if James were part of some ISIS terrorist cell, the judge after hearing determined the government deceived him in its presentation of the “facts” before the hearing and determined that justice required for him to undo these harsh, intrusive actions… and that the alleged “emergency” purported by the government never actually existed in the first place.
Given the United States District Court for the Southern District of Florida promptly and fully lifted this previously-imposed asset freeze and terminated its previously imposed receivership, the ruling calls into question the propriety of the overbroad and aggressive tactics of the FTC and their motives for blindsiding the businesses instead of following the normal civil process of simply talking to the business owners first..
Dotauthority.com and UCRfilings.com are two of the websites that are used by the permit companies involved in the case to allegedly engage in deceptive practices. These are bona fide companies that have helped motor carriers comply with their regulatory filing obligations, apply for operating authority, and secure other related truck permits much like OOIDA does. And they have done so for fifteen years. There are scores– if not hundreds– of such companies across America servicing this industry. In fact, they are an entire industry within the industry in and of themselves. They act as third-party service providers that educate, consult with, and train small business carriers and brokers on federal regulations, and their compliance obligations; they offer services so owner-operators can outsource this part of their business to the experts so they can focus on the business of trucking.And these permit services declare themselves as such on their websites and marketing materials.
In fact, James is a former New York Department of Transportation Investigator who is admitted to practice before the US Surface Transportation Board and the Federal Maritime Commission, so he clearly knows his stuff and how to keep truckers and carriers out of trouble. Thus, his brand “DOT Authority” which offers a double entendre, playing on the term operating authority as he clearly is an authority on the DOT.
And whereas the FTC would have us believe that these companies somehow “threaten” carriers, these companies simply warn carriers about the real civil penalties that they may face from the government if they fail to comply with their obligations. They merely offer a convenient way for carriers to meet their requirements to avoid getting fined (kind of like getting milk from the convenience store instead of making the trek to the grocery store), including a way for their annual permits to be renewed automatically so that they don’t ever forget to comply and then get reminded on January 2nd with a Happy New Year “gift” in the form of a $1,000 or more ticket by a state trooper or DOT agent.
What are the dangers of over reach?
This case should scare folks. Can the Federal Government just “allege” activity without real proof?
Are we following a new model of GUILTY until proven INNOCENT?
We note this was a complaint filed by a federal government agency, the FTC, not a class action by individuals as some others in trucking media have suggested.
Question: But should ‘reason to believe’ be transformed into a government right to destroy a business and the lives of the business owners before the accused even steps foot into court and has a chance to defend themselves?
We note this is not a criminal case, but rather a civil case, although it could be argued that criminal conduct has been alluded to in their press release.
James has attempted to get that message out to carriers and has offered to help them comply. His company prepares and files these reports for carriers (much like a taxpayer has an accountant prepare his or her taxes) or enables carriers to do it themselves through an automated service at a lesser cost.
The FTC has apparently taken overzealous issue with this service as well, suggesting carriers should not be asked to pay for something they can do themselves.
REALLY? How dare you hire a painter when you can paint your house yourself!
Perhaps the FTC needs to read the First Amendment as we are free to talk with, associate with, and contract with anyone we wish in America. Big Brother does not always know best.
These permit company owners post on their websites obvious disclaimers, stating they are a 3rd party consulting firm and are not affiliated with any government authority.
Despite admitting to having seen these disclaimers, the FTC still filed charges alleging the owners were engaging in deceptive online advertising practices by misleading consumers into believing that their permit companies were affiliated with a governmental entity. It just doesn’t make sense. Either the disclaimers were there, or they were not there. And they clearly were there.
In fact, you can visit these websites yourself and see the disclaimers boldly written. There are no fraudulent Federal logos on the websites to confuse or mislead people. I myself have been on the websites and never thought they were government websites, but rather what they obviously are, 3rd party filing companies. There are many small companies who are willing to pay 3rd party consultants to file all their paperwork just as some small businesses have accountants and bookkeeping partners handle their paperwork..
The part of this that really scares me, though, is that all the FTC needed is to have their “reason to believe”…. even though the disclaimers are obviously stated on the permit company owners’ websites.
I have no doubt the permit companies will win this civil case in the Federal Courts and justice will ultimately prevail. The sad part, however, is that in a case like this, the mere allegation of wrongdoing and the issuance of press releases before trial is often enough to destroy the reputations of the businesses and force them to close even before the trial.
So, if this makes you angry and fear the overreaching abuse of Federal authority more than ever, well, then you are right to be afraid. You have a right to be angry and afraid.
Comment on the this article and share your voice!!
I don’t know James Lamb, even though I have contacted him a few times. but I find this action by the feds alarming. If anything the FTC should have had to bring this situation into a court room after notifying the parties involved. Take this move by the feds as a notice that they will back door the American trucking industry in a matter they desire, so, you darn better know your rights while you still have some. I have not seen the documents myself thus, like are legal system is suppose to work, I will not convict this person or the companies involved until such. I would suggest the feds do the same thing.
October 24, 2016 – Fort Lauderdale, FL – Corporate Defendants Dotauthority.com, Inc., Dotfilings.com, Inc., Excelsior Enterprises International, Inc., and JPL Enterprises International, Inc. and individual defendants James P. Lamb, and Uliana Bogash (collectively, the “Defendants”) announced today that they have stood their ground against Federal Trade Commission (“FTC”) allegations of deceptive online advertising by effectively eliminating the most restrictive aspects of a previously-issued ex parte Temporary Restraining Order. After an evidentiary hearing in the case (CIVIL ACTION NUMBER: 0:16-cv-62186-WJZ), the United States District Court for the Southern District of Florida promptly and fully lifted a previously-imposed asset freeze and terminated its previously imposed receivership. The ruling called into question the propriety of the overbroad and aggressive tactics employed by the FTC in this case, which the Court ultimately deemed unwarranted.
Although the litigation is still ongoing, the Court’s September 29, 2016 Order is particularly noteworthy due to the reversal of the FTC’s requested ex parte remedies, especially given the steep initial advantages normally enjoyed by the FTC in such proceedings and, relatedly, the exceptionally low success rate of similarly situated defendants .
This case arose from the FTC’s allegations that the Defendants were engaging in deceptive online advertising practices in violation of Section 5(a), of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. § 45(a) and Section 4 of the Restore Online Shoppers’ Confidence Act (“ROSCA”), 15 U.S.C. § 8403. The Defendants operate several permit renewal businesses that help interstate commercial carriers remain compliant with the slew of complex and rapidly-changing state and Federal regulations. The FTC alleged that the Defendants were engaging in deceptive businesses practices by misleading consumers into believing that Defendants were affiliated with a governmental entity.
On September 15, 2016, the FTC obtained an ex parte TRO, freezing the Defendants’ personal and business assets, and imposing a court-appointed receiver to wrest control of the Defendants’ businesses during the pendency of the proceedings. Defendants were thus placed in the position of having to defend themselves without access to any funds for legal fees or business records-records and funds that were necessary for the Defendants to support their defense. Unless the FTC’s requested relief was immediately overturned, the asset freeze and receivership would remain in place for the pendency of the litigation; a sure death sentence for the Defendants’ businesses.
Two weeks later, on September 29, 2016, the federal court took witness testimony and heard arguments from the Defendants’ counsel, all of which highlighted the facts that (i) the FTC’s ex parte request for an asset freeze and receivership was improvident, (ii) the FTC acted inappropriately by implying that exigent circumstances existed when, in fact, no emergency existed, and (iii) the Defendants’ business was both legitimate and extremely helpful to thousands of customers nationwide who relied on the Defendants for their interstate commercial carriers registrations.
Defendants prevailed at the hearing, and the asset freeze and receivership were immediately lifted. A greatly modified preliminary injunction still issued; however, the restrictions of the injunctions were entirely acceptable to the Defendants and, in fact, were offered to the FTC by the Defendants prior to the evidentiary hearing.
To understand the significance of the Court’s September 29 ruling, it is necessary to examine two substantial advantages enjoyed by the FTC in litigating matters involving claims of deceptive advertising. When online advertisers face off against the FTC, it is a wildly uneven playing field.
First, the FTC typically imposes a drastically accelerated litigation timeline, forcing defendants to scurry and draft complex responsive pleadings in very short order. In the case at hand, for instance, Defendants were given only a handful of days to prepare for the preliminary injunction hearing and to draft a lengthy memorandum in opposition to the FTC’s motion for a preliminary injunction.
Second, the FTC is held to a different standard of law, making it easier for the Commission to obtain preliminary injunctions. Unlike private litigants, the FTC does not need to prove irreparable injury when seeking a TRO –such injury is presumed in a statutory enforcement action. Because irreparable injury is presumed, the FTC’s burden of establishing success on the merits is decreased, and a district court “‘need only to find some chance of probable success on the merits'” in order to award preliminary relief.
The two aforementioned factors create a markedly uphill battle for defendants accused of violating the FTC Act and those that wish to oppose the entry of a preliminary injunction against them. The resounding defeat of the FTC in this phase of the case underscores the importance of the Defendants’ attorneys’ accomplishment in the face of the overwhelmingly odds that were stacked in favor of the FTC.
Having suffered a resounding defeat in the early stages of the case, the FTC has undertaken efforts to bolster its flailing case by publishing false and defamatory statements about the Defendants in press releases and FTC-sponsored blog posts. These activities, which are all too familiar to counsel who handle FTC matters, demonstrate the FTC’s unabashed policy of posting self-serving and defamatory half-truths about ongoing cases in which it is involved, under the guise of “legitimate reporting.” An example of the FTC’s improvident behavior can be seen in its October 17, 2016 press release, in which the FTC summarily stated that the Defendants were “government imposters,” despite the fact that the Defendants’ websites were (and remain) replete with disclaimers identifying them as independent consulting firms. This illustrates the ongoing and vexing obstacle that any defendant facing a FTC-related case must hurdle, namely, that the FTC tries its cases in the press before stepping foot into court.
Challenges in the case still remain, however, the Defendants have effectively halted the FTC’s momentum and highlighted the improvident and improper actions of the FTC. The record now reflects the overly aggressive nature of the FTC’s conduct by formally acknowledging the impropriety of the asset freeze and court-appointed receiver. With hope, the ruling will help to make it harder for the FTC to employ similarly aggressive and improvident tactics against other online advertisers in the future.
1. See e.g., FTC v. A TO Z Marketing, Inc., No. 14-56582 (9th Cir.); No. 8:13-cv-00919 (C.D. Cal.) (granting preliminary injunction in response to FTC allegations of deceptive online marketing in violation of Section 5(a) of the FTC Act); FTC v. Sale Slash, LLC, et. al., No. 2:15-cv-03107-PA-AJW (granting preliminary injunction against Defendants Apex Customer Care LLC, Penway LLC, Renvee LLC, Optim Products LLC, and Edgar Babayan in response to FTC allegations of deceptive online marketing in violation of Section 5(a) of the FTC Act); and FTC v. American Yellow Browser, Inc., No. 1:15-cv-02047 (N.D. Ill.) (granting preliminary injunction to halt allegations of deceptive online marketing in violation of Section 5(a) of the FTC Act).
2. FTC v. IAB Mktg. Assoc., LP, 746 F.3d 1228, 1232 (11th Cir. 2014) (citing FTC v. Univ. Health, Inc., 938 F.2d 1206, 1218 (11th Cir. 1991)).
3. FTC v. World Wide Factors, Ltd., 882 F.2d 344, 347.
4. Id. (quoting United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 176 (9th Cir. 1987)).
The action by the FTC is very troubling especially giving false information to the court to gain access to close down a legitimate company without proper cause. Thankfully the court promptly lifted the injunction after being advised the court was dubbed into ordering the injunction by the FTC and in lifting the injunction admonished the FTC for its false and unsubstantiated charges.
God bless the USA and our court system which acted in the correct manner to admonish the bad actions of the FTC.. Someone who instigated this action should be terminated immediately as a way to show other members of the FTC they cannot take unlawful actions without some risk of dismissal!!!!
Exactly how many complaints, and by who, have been made to prompt the FTC into this investigation?
Exactly how did Mr. Lamb scam anyone?
DOTAuthotity,com doesn’t look like a government web site to me!
Don’t government web sites end in .gov NOT .com???
DOTAuthority is a third party provider offering services for a fee.
This is a commercial solicitation and advertisement.
DOTAuthotity is not affiliated with any government authority.
Oh, I get it now, Drivers who don’t know how to conduct business have sought out someone who does know how to conduct business, for a Fee!
And now these Drivers have been scammed because they Obviously CAN”T READ and this Fact makes this man a thief!!!
How much did these Independents SAVE by having their Running Authority set up and maintained by a professional that Can Read and possibly even Write????
Mr. Lamb took on a Very Powerful gun lobby group when he stood up for OTR Drivers need and desire to carry a weapon for self defense across state lines.
Is it possible that a couple of phone calls were made to Shut This Man Down????
Mr. Lamb has had his assets unfrozen by the same judge that froze them with a court order.
Doesn’t this have any significance towards Mr. Lambs character???
Isn’t Mr. Lamb entitled to his day in court before we HANG HIM????
I know all of you truckers have total and complete faith in the FMCSA so Of Course The FTC is completely in the right here!!!!!
I’ve always wondered why the FTC does not go after the mega carriers for false advertisement??
Oh, Thats Right, the megas have money and lots of it while their Drivers are grossly underpaid just as they ADVERTISE!!!!
MythBuster: FTC appears to be deceiving the public, industry and the media into thinking DOTAuthority.com and its related companies have been shut down. In truth, despite the FTC’s cries of wolf, a Federal Judge strengthened existing disclaimers, and ruled businesses be turned back over to Lamb and his partner and be allowed to operate in accordance with court order as the case moves forward for trial.
services as one method to comply with a fee-based regulatory program, then where are the arrests and the indictments?
very powerful and wealthy people in the industry, exposing abuse and corruption.
Could this be ” in retaliation for his political activities, either within the industry or at-large. The questions is: who might want to take Mr. Lamb down?


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The collective-bargaining agreement between Maine and respondent local union, the exclusive bargaining agent for certain state employees, requires nonmember employees represented by the union to pay the local a “service fee” equal to the portion of union dues related to ordinary representational activities, e.g., collective bargaining or contract administration activities. That fee does not include nonchargeable union activities such as political, public relations, or lobbying activities. The fee includes a charge that represents the “affiliation fee” the local pays to the national union. But, it covers only the part of the affiliation fee that helps to pay for the national’s own chargeable activities, which include some litigation activities that directly benefit other locals or the national itself, rather than respondent local. The petitioners, nonmembers of the local, brought this suit claiming, inter alia, that the First Amendment prohibits charging them for any portion of the service fee that represents litigation that does not directly benefit the local, i.e., “national litigation.” The District Court found no material facts at issue and upheld this element of the fee. The First Circuit affirmed.
Held: Under this Court’s precedent, the First Amendment permits a local union to charge nonmembers for national litigation expenses as long as (1) the subject matter of the (extra-local) litigation is of a kind that would be chargeable if the litigation were local, e.g., litigation appropriately related to collective bargaining rather than political activities, and (2) the charge is reciprocal in nature, i.e., the contributing local reasonably expects other locals to contribute similarly to the national’s resources used for costs of similar litigation on behalf of the contributing local if and when it takes place. Pp. 4–13.
(a) Prior decisions frame the question at issue. The Court has long held that the First Amendment permits local unions designated as the exclusive bargaining representatives for certain employees to charge nonmember employees a service fee as a condition of their continued employment. With respect to litigation expenses, the Court also held that a local could charge nonmembers for expenses of litigation normally conducted by an exclusive representative, including litigation incidental to collective bargaining, but said (in language that the petitioners here emphasize) that litigation expenses “not having such connection with the bargaining unit are not to be charged to objecting employees.” Ellis v. Railway Clerks, 466 U. S. 435, 453. Later, the Court held, with respect to the chargeability of a local’s payment of an affiliation fee to a national, that the local “may charge objecting employees for their pro rata share of the costs associated with otherwise chargeable activities of its state and national affiliates, even if those activities were not performed for the direct benefit of the objecting employees’ bargaining unit.” Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 524. The Court added that the local unit need not “demonstrate a direct and tangible impact upon the dissenting employee’s unit,” although there must be “some indication that the payment [say, to the national] is for services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.” Ibid. However, the Lehnert Court split into three irreconcilable factions on the subject here at issue, payment for national litigation. Pp. 4–9.
(b) Because Lehnert failed to find a majority as to the chargeability of national litigation expenses, the lower courts have been uncertain about the matter. Having examined the question further, however, the Court now believes that, consistent with its precedent, costs of such litigation are chargeable provided the litigation meets the relevant standards for charging other national expenditures that the Lehnert majority enunciated. Under those standards, a local may charge a nonmember an appropriate share of its contribution to a national’s litigation expenses if (1) the subject matter of the national litigation bears an appropriate relation to collective bargaining and (2) the arrangement is reciprocal—that is, the local’s payment to the national affiliate is for “services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.” 500 U. S., at 524. Logic suggests that the same standard should apply to national litigation expenses as to other national expenses, and the Court can find no significant difference between litigation activities and other national activities, the cost of which this Court has found chargeable. The petitioners’ arguments to the contrary, which rest primarily on their understanding of Ellis and Lehnert, are rejected. Pp. 9–11.
(c) Applying Lehnert’s standard to the national litigation expenses at issue demonstrates that they are both appropriately related to collective bargaining activities and reciprocal, and are therefore chargeable. First, the record establishes that the kind of national litigation activity for which the local charges nonmembers concerns only those aspects of collective bargaining, contract administration, or other matters that the courts have held chargeable. No one here denies that under Lehnert this kind of activity bears an appropriate relation to collective bargaining. See, e.g., 500 U. S., at 519. Second, although the location of the litigation activity is at the national (or extraunit) level, such activity is chargeable as long as the charges are for services that may ultimately inure to local members’ benefit by virtue of their membership in the national union. Ibid. Respondent local says that the payment of its affiliation fee gives locals in general access to the national’s financial resources—compiled via contributions from various locals—which would not otherwise be available to the local when needed to effectively negotiate, administer, or enforce the local’s collective-bargaining agreements. Because no one claims that the national would treat respondent local any differently from other locals in this regard, the existence of reciprocity is not in dispute. Pp. 11–13.
In this case, a local union charges nonmembers a service fee that (among other things) reflects an affiliation fee that the local union pays to its national union organization. We focus upon one portion of that fee, a portion that the national union uses to pay for litigation expenses incurred in large part on behalf of other local units. We ask whether a local’s charge to nonmembers that reflects that element is consistent with the First Amendment. And we conclude that under our precedent the Constitution permits including this element in the local’s charge to nonmembers as long as (1) the subject matter of the (extra-local) litigation is of a kind that would be chargeable if the litigation were local, e.g., litigation appropriately related to collective bargaining rather than political activities, and (2) the litigation charge is reciprocal in nature, i.e., the contributing local reasonably expects other locals to contribute similarly to the national’s resources used for costs of similar litigation on behalf of the contributing local if and when it takes place.
Maine has designated the Maine State Employees Association (the local union) as the exclusive bargaining agent for certain executive branch employees. A collective-bargaining agreement between Maine and the local requires nonmember employees whom the union represents to pay the local union a “service fee.” And that service fee equals that portion of ordinary union dues that is related to ordinary representational activities, e.g., collective bargaining or contract administration activities. In calculating the fee, the union starts with ordinary union dues and subtracts a sum representing the pro rata cost of nonchargeable union activities such as political, public relations, or lobbying activities.
The service fee includes a charge that represents the affiliation fee the local pays to its national union, the Service Employees International Union. The included charge takes account of the affiliation fee, however, only insofar as the fee helps to pay for the national’s activities that are of a chargeable kind, such as collective-bargaining or contract administration activities. The local does not charge nonmembers for the portion of the affiliation fee that helps pay for the national’s activities of a kind that would not normally be chargeable, such as political, public relations, or lobbying activities.
The local includes in the chargeable portion of the affiliation fee an amount that helps the national pay for litigation activities, some of which do not directly benefit Maine’s state employees’ local but rather directly benefit other locals or the national organization itself. (For purposes of simplicity, we shall call all this extraunit litigation “national litigation.”) As is true of all other parts of the affiliation fee, the local’s charge to nonmembers reflects these national litigation costs only insofar as the national litigation concerns activities that are of a chargeable kind. The local does not charge nonmembers for the portion of national litigation costs that concerns activities of a kind that would not normally be chargeable, such as political, public relations, or lobbying activities.
Numbers may help illustrate the scope of the issue. In 2005, the full service fee the local charged nonmembers amounted to about 49% of a member’s ordinary union dues. (The petitioners here, beneficiaries of grandfathering rules, paid a half fee, amounting to about 24.5% of a member’s fee.) The full fee for employees like the petitioners would have amounted to about $9.70 per month. About $1.34 per month of that $9.70 reflected a pro rata share of the portion of the national affiliation fee that the local believed was chargeable. The portion of the $1.34 per month affiliation fee charge that represented national litigation costs—the cost here at issue—amounted to considerably less.
Although the amount at issue per nonmember may be small, nonmembers believed the principle important. And in December 2005, nonmembers challenged in arbitration several aspects of the local’s service fee, including the element at issue here. In 2006, the arbitrator found all aspects of the service fee lawful. Before the arbitrator reached his decision, however, the petitioners, who are nonmembers of the local union, brought this lawsuit in Maine’s Federal District Court also challenging various aspects of the service fee, including this element. In particular, they claimed that the First Amendment prohibits charging them for any portion of the service fee that represents what we have called “national litigation,” i.e., litigation that does not directly benefit the local. The District Court, finding no material facts at issue, upheld this element of the fee. 425 F. Supp. 2d 137 (2006). The Court of Appeals for the First Circuit affirmed the District Court’s determination. 498 F. 3d 49 (2007). Because of uncertainty among the Circuits as to whether, or when, the Constitution permits charging nonmembers for the costs of national litigation, we granted certiorari. Compare Otto v. Pennsylvania State Educ. Assn.-NEA, 330 F. 3d 125 (CA3 2003), with Pilots Against Illegal Dues v. Air Line Pilots Assn., 938 F. 2d 1123 (CA10 1991).
Prior decisions of this Court frame the question before us. In Hanson, Street, and Abood, the Court set forth a general First Amendment principle: The First Amendment permits the government to require both public sector and private sector employees who do not wish to join a union designated as the exclusive collective-bargaining representative at their unit of employment to pay that union a service fee as a condition of their continued employment. Taken together, Hanson and Street make clear that the local union cannot charge the nonmember for certain activities, such as political or ideological activities (with which the nonmembers may disagree). But under that precedent, the local can charge nonmembers for activities more directly related to collective bargaining. In such instances, the Court has determined that the First Amendment burdens accompanying the payment requirement are justified by the government’s interest in preventing freeriding by nonmembers who benefit from the union’s collective-bargaining activities and in maintaining peaceful labor relations. Street, 367 U. S., at 768–772; Hanson, 351 U. S., at 233–238.
In Abood, the Court explained the basis for a First Amendment challenge to service fees as follows: “To be required to help finance the union as a collective-bargaining agent might well be thought . . . to interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.” 431 U. S., at 222. But the Abood Court rejected such a challenge. It found that, “the judgment clearly made in Hanson and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.” Ibid. The Court added that, “ ‘furtherance of the common cause leaves some leeway for the leadership of the group. As long as they act to promote the cause which justified bringing the group together, the individual cannot withdraw his support merely because he disagrees with the group’s strategy.’ ” Id., at 223 (quoting Street, supra, at 778 (Douglas, J., concurring)).
In Ellis and Lehnert, the Court refined the general First Amendment principle. In particular, it refined the boundaries of Abood’s constitutional “leeway” by describing the nature of the cost elements that the local, constitutionally speaking, could include, or which the local could not constitutionally include, in the service fee. In 1984, the Court wrote in Ellis that service fees are constitutionally permissible when they relate to the union’s duties of “negotiating and administering a collective agreement and in adjusting grievances and disputes.” 466 U. S., at 446–447 (citing Railway Clerks v. Allen, 373 U. S. 113, 121 (1963)). Accordingly, the Court explained, the local union could charge the nonmember for union “expenditures [that] are necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.” 446 U. S., at 448. In doing so, the union could charge nonmembers for “the direct costs of negotiating and administering a collective-bargaining contract” and for “the expenses of activities or undertakings normally or reasonably employed to implement or effectuate the duties of the union as exclusive representative of the employees in the bargaining unit.” Ibid.
Applying this standard, the Ellis Court examined the particular service fee charges challenged in that case. The Court held that the local union could charge nonmembers for the costs of a national convention, id., at 448–449; for the costs of social activities, id., at 449–450; and for the costs of those portions of publications not devoted to political causes, id., at 450–451. Convention expenses are chargeable, the Court explained, because, if a local union is to function effectively, “it must maintain its corporate or associational existence.” Id., at 448.
The Court also held that the local union could charge nonmembers for litigation expenses incidental to the local union’s negotiation or administration of a collective-bargaining agreement, fair representation litigation, jurisdictional disputes, or other litigation normally conducted by an exclusive representative. Id., at 453. But the Court then said (in language that the petitioners here emphasize) that “expenses of litigation not having such connection with the bargaining unit are not to be charged to objecting employees.” Ibid. (emphasis added).
In 1991, the Court in Lehnert again described when an expense is chargeable. The Court said that a chargeable expenditure must bear an appropriate relation to collective-bargaining activity. 500 U. S., at 519. (Its specific description of that relation is not at issue here. Compare ibid., with id., at 557–558 (Scalia, J., concurring in judgment in part and dissenting in part)). The Court then considered one aspect of the matter here before us, the chargeability of a local union’s payment to a national organization, say, an affiliation fee. The Court assumed that, in any given year, such a payment would primarily benefit other local units or the national organization itself, but it would not necessarily provide a direct benefit to the contributing local. The petitioners in the case (nonmembers of a teacher’s union) argued that the Constitution forbids a local union to charge nonmembers for these activities, i.e., for “activities that, though closely related to collective bargaining generally, are not undertaken directly on behalf of the bargaining unit to which the objecting employees belong.” Id., at 519.
The Court divided five to four on the general affiliation fee matter. The majority of the Court rejected the nonmembers’ claim. The Court noted that it had “never interpreted” the chargeability test “to require a direct relationship between the expense at issue and some tangible benefit to the dissenters’ bargaining unit.” Id., at 522. Indeed, “to require so close a connection would be to ignore the unified-membership structure under which many unions, including those here, operate.” Id., at 523. Rather, the affiliation relationship is premised on the “notion that the parent will bring to bear its often considerable economic, political, and informational resources when the local is in need of them.” Ibid. And that “part of a local’s affiliation fee which contributes to the pool of resources potentially available to the local is assessed for the bargaining unit’s protection, even if it is not actually expended on that unit in any particular membership year.” Ibid.
The Court then held that “a local bargaining representative may charge objecting employees for their pro rata share of the costs associated with otherwise chargeable activities of its state and national affiliates, even if those activities were not performed for the direct benefit of the objecting employees’ bargaining unit.” Id., at 524 (emphasis added). Of particular relevance here, the Court added that the local unit need not “demonstrate a direct and tangible impact upon the dissenting employee’s unit.” Nonetheless, it said, there must be “some indication that the payment [say, to the national affiliate] is for services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.” Ibid.
Finally, the Lehnert Court turned to the subject now before us, that of payment for national litigation. On this point, the Court split into three irreconcilable factions. A plurality of four wrote that, even though the union was “clearly correct that precedent established through litigation on behalf of one unit may ultimately be of some use to another unit,” it nonetheless found “extraunit litigation to be more akin to lobbying in both kind and effect.” Id., at 528. The plurality added that litigation is often “expressive.” It concluded that “[w]hen unrelated to an objecting employee’s unit, such activities are not germane to the union’s duties as exclusive bargaining representative.” Ibid.
The Member of the Court who provided the fifth vote for the other portions of the Court’s opinion dissented from the part of the opinion on national litigation. Justice Marshall noted that the plurality’s discussion of national litigation costs was dicta because no such costs were at issue in the case. Id., at 544 (opinion concurring in part and dissenting in part). Nevertheless, Justice Marshall characterized any rule that found national litigation costs per se nonchargeable as “surely incorrect” and indicated such costs should be assessed under the plurality’s own test, i.e., whether the litigation bears an appropriate relation to collective bargaining. Id., at 546–547.
At the same time, four Members of the Court agreed with the nonmembers that including national costs in the service fee violates the First Amendment except when those costs pay for specific services “actually provided” to the local. Id., at 561 (Scalia, J., concurring in judgment in part and dissenting in part). They thought that a local union cannot charge nonmembers for national activities unless there is a direct relationship between the expenses and “some tangible benefit to the dissenters’ bargaining unit.” Id., at 562 (internal quotation marks omitted). In other words, the dissent expressly rejected the majority’s chargeability test for national expenses. But the dissent did not separately discuss national litigation activities, perhaps because, as Justice Marshall pointed out, they were not directly at issue in that case.
As a result of the Lehnert Court’s failure to find a majority as to the chargeability of national litigation expenses, the lower courts have been uncertain about the matter. Compare Otto, 330 F. 3d, at 138, with Pilots Against Illegal Dues, 938 F. 2d, at 1130–1131. Having examined the question further, we now believe that, consistent with the Court’s precedent, costs of that litigation are chargeable provided the litigation meets the relevant standards for charging other national expenditures that the Lehnert majority enunciated. Under those standards, a local union may charge a nonmember an appropriate share of its contribution to a national’s litigation expenses if (1) the subject matter of the national litigation bears an appropriate relation to collective bargaining and (2) the arrangement is reciprocal—that is, the local’s payment to the national affiliate is for “services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.” 500 U. S., at 524.
We reach this conclusion in part because logic suggests that the same standard should apply to national litigation expenses as to other national expenses. We can find no significant difference between litigation activities and other national activities the cost of which this Court has found chargeable. We can find no sound basis for holding that national social activities, national convention activities, and activities involved in producing the nonpolitical portions of national union publications all are chargeable but national litigation activities are not. See Ellis, 466 U. S., at 448–451. Of course, a local nonmember presumably has the right to attend, and consequently can directly benefit from, national social and convention activities; and a local nonmember can read, and benefit from, a national publication. But so can a local nonmember benefit from national litigation aimed at helping other units if the national or those other units will similarly contribute to the cost of litigation on the local union’s behalf should the need arise.
The petitioners’ arguments to the contrary rest primarily upon their understanding of Ellis and Lehnert. Ellis, we must concede, sets forth certain kinds of national litigation—for the most part directly related to a local union’s particular interests—as chargeable; but it then goes on to say, as we have earlier pointed out, ante, at 6–7, that “expenses of litigation not having such a connection with the bargaining unit are not to be charged to objecting employees.” 466 U. S., at 453. Nonetheless, as the Court of Appeals noted, the Ellis Court focused upon a local union’s payment of national litigation expenses without any understanding as to reciprocity. Indeed, Justice Kennedy pointed out in his Lehnert dissent, “Ellis . . . contains no discussion of whether a bargaining unit might choose to fund litigation . . . through a cost sharing arrangement under the auspices of the affiliate.” 500 U. S., at 564 (opinion concurring in judgment in part and dissenting in part). Ellis nowhere explains why reciprocal litigation funding arrangements would fail to benefit a local union. Hence, Ellis does not answer the question presented here.
We must also concede that a plurality in Lehnert wrote that national litigation expenses were not chargeable “[w]hen unrelated to an objecting employee’s unit.” 500 U. S., at 528. But, again, reciprocal litigation funding was not before the Court; hence the plurality could not (and did not) decide whether an understanding as to reciprocity produced the relationship necessary for chargeability. Regardless, a plurality does not speak for the Court as a whole.
Nor can one simply add together the four Lehnert dissenters and the four Members of the plurality in an effort to find a majority of Justices who hold the petitioners’ view. That is because the Lehnert majority, speaking for the Court, adopted a more liberal standard of chargeability than the standard embraced by the dissent. And the question here is whether that standard permits charging nonmembers for national litigation expenses. There was no majority agreement in Lehnert about the answer to this last mentioned question. The best we can do for the petitioners is to find Lehnert ambiguous on the point at issue.
Applying Lehnert’s standard to the national litigation expenses here at issue, we find them chargeable. First, the kind of national litigation activity for which the local charges nonmembers concerns only those aspects of collective bargaining, contract administration, or other matters that the courts have held chargeable. Ellis, supra, at 446–447. The lower courts found (and the petitioners here do not dispute) that the local charges nonmembers only for those national litigation activities that, in respect to subject matter, “were comparable to those undertaken” by the local and which the local “deemed chargeable” in its calculation of the “service fee.” 498 F. 3d, at 52, 64–65. And no one here denies that under Lehnert this kind of activity bears an appropriate relation to collective bargaining. See, e.g., Lehnert, 500 U. S., at 519; see also id., at 524 (“[A] local bargaining representative may charge objecting employees for their pro rata share of costs associated with otherwise chargeable activities of its state and national affiliates … ”).
Second, the location of the litigation activity is at the national (or extraunit), not the local, level. But, as we have just said (under Lehnert), activity at the national level is chargeable as long as the charges in question are “for services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.” Ibid.
The Court of Appeals treated the litigation charge at issue as reciprocal in nature, and concluded the District Court must have done so as well. See 498 F. 3d, at 64–65. The local union here says that the payment of its affiliation fee gives locals in general access to the national’s financial resources—compiled via contributions from various locals—“which would not otherwise be available to the local union when needed to effectively negotiate, administer or enforce the local’s collective bargaining agreements.” Brief for Respondents 18–19. The resources in question include resources related to litigation. No one claims that the national would treat the local union before us any differently, in terms of making these resources available, than the national would treat any other local. The petitioners do not suggest the contrary. And we consequently conclude, as did the lower courts, that the existence of reciprocity is assumed by the parties and not here in dispute.
I join the opinion of the Court but write separately to note that our decision, as I understand it, does not reach the question of what “reciprocity” means. Petitioners have taken an all-or-nothing position, contending that non-members of a local may never be assessed for any portion of the national’s extraunit litigation expenses. See ante, at 4 (noting that petitioners “claimed that the First Amendment prohibits charging them for any portion of the service fee that represents what we have called ‘national litigation,’ i.e., litigation that does not directly benefit the local” (emphasis added)). The opinion correctly concludes, “as did the lower courts, that the existence of reciprocity is assumed by the parties and not here in dispute.” Ante, at 13.
Thus, this case does not require us to address what is meant by a charge being “reciprocal in nature,” or what showing is required to establish that services “ ‘may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.’ ” Ante, at 12 (citing Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 524 (1991)). I understand the Court’s opinion to conclude that the litigation expenses at issue here are chargeable only because the parties assumed that the benefit of any such expenses would be reciprocal.
Because important First Amendment rights are at stake, the Government’s argument regarding the burden of establishing true reciprocity has considerable force. Nonetheless, since petitioners in this case did not raise the question whether the Maine State Employees Association’s pooling arrangement was bona fide, we need not reach that question today.

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