text:
BY: GERSON H. SMOGER, J.D, Ph.D.
In conducting a collateral review inHansberry v. Lee,311 U.S. 32, 42 (1940), the U.S. Supreme Court did not seek to prescribe "any particular rule for establishing the conclusiveness of judgments in class suits."
Later, when Rule 23 was amended in 1966, the Advisory Committee explicitly preserved the right of absent class members to contest the validity of a judgment reached in a representative capacity: "[S]ubdivision (c)(3) does not disturb therecognized principlethat the court conducting the action cannot predetermine theres judicataeffect of the judgment; this can be tested only in a subsequent action."
There are, of course, some obvious limitations in any case upon the extent to which absent parties will be concluded. * * * such parties have a clear right in some later litigation to attack the judgment which purports to bind them. In such later case, at least the basic consideration going to the fairness of holding them bound will be open for re-examination. Marvin E. Frankel,Some Preliminary Observations Concerning Civil Rule 23, 43 FRD, 39, 46 (1968), (emphasis supplied).
Subsequently, the U.S. Supreme Court has on several occasions reaffirmed the rule that a class action court cannot control theres judicataeffect of its own judgment. "[A]n absent class action plaintiff is not required to do anything (such as intervene to contest adequacy of representation before a judgment becomes final). He may sit back and allow the litigation to run its course, content in knowing that there are safeguards provided for his protection".Philips Petroleum Co. v. Shutts,472 U.S. 797, 810 (1985).
The Supreme Court has consistently maintained that "an elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."Mullane v. Central Hanover Bank & Trust Co.,339 U.S. 306, 314-15, (1950). In an action under Rule 23(b)(3), notice must also inform the absent class members of their opportunity to opt out.
In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude the member from the class if the member so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if the member desires, enter an appearance through counsel.
However, what can be considered as "the best notice practicable" has varied greatly among courts. In the case ofEisen v. Carlisle & Jacquelin, 417 U.S. 156, 157 (1974) the Supreme Court required personal notice to all of the class members despite the fact that the amount of damages at issue per class member was relatively small. Yet, in a large number of other cases various forms of publication, personal and broadcast notice have been approved. Any challenge, therefore, generally depends on a number of factors raised regarding the reasonableness of the notice at the time the original court approved it. However, given that there is much variability in notice mechanisms, this has proven to be the most frequent areas in which the conclusiveness of class action settlements have been challenged.
Failure of The Notice To Provide a Full Opportunity To Opt Out.
The second item of scrutiny goes to the actual text of the notice. At minimum, notice cannot bar an absent class member�s claims unless it fully informs the class member of the claims included in the class action, as well as the right to opt out. (See, e.g.,Garcia v. Collins, 776 F.2d 841, 848 (4th Cir. 1984)(holding that despite a broadly plead complaint, notice was insufficient to state future claims would be barred); Twigg v. Sears Roebuck and Company, 153 F.3d 1222, 1227-1230 (11th Cir. 1998) ( the language of the notice has to be sufficient to inform the Claimant of the claims asserted)Penson v. Traveller Transport Company, 634 F.2d 989 (5th Cir. 1981) (notice did not inform absent class members of the right to opt out)Republic National Bank of Dallas v. Denson and Addison Company, 68 F.R.D. 208 (N.D. Texas 1975) (holding that notice should inform absent class members of possible conflicts of interest so that they can decide whether to withdraw from the class.);Morgan v. Ward, 699 F. Supp. 1025 (E.D.N.Y. 1988) (class members� individual claim for damages not barred by class action, because he was not notified that membership in a civil rights prisoners� class would foreclose individual actions for damages.) Further, notice ". . . must contain information that a reasonable person would consider to be material in making an informed, intelligent decision of whether to opt out or remain a member of the class and be bound by the final judgment."In Re: Nissan Motor Corp. Anti-Trust Litigation, 552 F.2d 1088, 1105 (5th Cir. 1977).
C. There is a Question As To Whether Notice to Future Personal Injury Claimants Can Ever Be Constitutionally Adequate.
Many persons in the exposure-only category, the Court of Appeals stressed, may not even know of their exposure, or realize the extent of the harm that may incur. Even if they fully appreciate the significance of the class notice, those without current afflictions may not have the information or foresight needed to decide, intelligently, whether to stay in or opt out.
The Restatement of Judgments at � 42(1) holds that "a person is not bound by a judgment for or against the party who purports to represent him if either "(d) * * * there was a substantial diversion of interest" or "(e) the representative failed to prosecute or defend the action with due diligence and reasonable prudence, and the opposing party was on notice of facts making that failure apparent." If "there is in fact a substantial divergence of interest between [the representative and some members of the class] * * * the judgment is not binding on those whose interests are divergent."Id., Comment e.
The structure of Rule 23 also dictates that the initial court�s decision on adequacy cannot be immune from challenge. Rule 23 only requires the court to formally consider adequacy once � in deciding whether to certify the class at all � and this is to be done "as soon as practicable after commencement of (the) action". Rule 23(c)(1). A court�s determination, under Rule 23(a)(4) is, therefore, not a conclusion, but a prediction. The court merely anticipates that the chosen "representative partieswillfairly and adequately protect the interest of the class," while adequacy itself must be maintained "at all times."
Courts then have a duty to thoroughly and scrupulously examine the actions of class representatives at every stage of the proceeding in order to make sure they have provided adequate representation for absent class members.SeeGuerine v. J&W Investment Company, 544 F.2d 863 (5th Cir. 1977). Thus, adequacy of representation is required: during discovery, pre-trial, and trial,see Johnson v. Shreveport Garment Company, 422 F. Supp. 526 (W.D. LA 1976)); post trial modifications of court orders,Crawford v. Honig, 37 F.3d 485, 488 (9th Cir 1994) the award of attorneys fees (National Association of Regional Medical Program, Inc. v. Matthews, 551 F.2d 340 (D.C. Cir. 1976) and the failure to appeal (Gonzalez v. Cassidy, 474 F.2d 67 (5th Cir. 1973)). In sum, as the U.S. Supreme Court has stated, due process requires adequate representation "at all times."Shutts, 472 U.S. at 812 (1985).
C. It Is Difficult to Show the Requisite Alignment of Interest in the Case of "Futures"
As early as InIn Re: Bendectin Products Liability Litigation, 749 F.2d 300, 304 n.8 (6th Cir. 1984) the Sixth Circuit held in response to a class including "futures" being certified that the same counsel could not represent both present and future claimants because both groups "are inherently in conflict with each other for their share of the settlement." Therefore, the court found that the present subclass "had the incentive to try to minimize the size of the [future subclass] in order to increase [their] share of the settlement." On the other hand, both the District court and the 2ndCircuit allowed such a settlement to take place inIn Re: Agent Orange Product Liability Litigation,597 F. Supp. 740 (E.D.N.Y. 1984);Ivy v. Diamond Shamrock, 901 F. 2nd7 (1993).
In the case ofAmchem, 521 U.S.591, 626-27 (1997) the U.S. Supreme Court finally opined on this obvious conflicts:In significant respects, the interest of those within the single class are not aligned. Most saliently, for the presently injured, the critical goal is generous immediate payments. That goal tugs against the interest of exposure-only plaintiffs in ensuring ample, inflation-protected funds for the future.
The class representatives may well have thought that the Settlement serves the aggregate interests of the entire class. But the adversity among subgroups requires that the members of each subgroup cannot be bound to a settlement except by consents given by those who understand that their role is to represent solely the members of their respective subgroups.
Id. (citations omitted) (emphasis added). UnderAmchem, a settlement on behalf of both currently-injured and exposure-only plaintiffs reached by currently-injured plaintiffs cannot be binding on persons who at the time of settlement had not yet manifested injury.
[I]t is obvious that a class divided between holders of present and future claims (some of the latter involving no physical injury . . .) requires division into homogeneous subclasses under Rule 23(c)(4)(b), with separate representation to eliminate conflicting interests of counsel.See527 U.S. at 854-56.
Under the Rules Enabling Act, a Federal Rule may not "abridge, enlarge, or modify any substantive right." 28 U.S.C. � 2072(b). Rule 23 does not change the substantive law ofres judicata, which only precludes claims that were litigated or could have been litigated in the prior action.Heiser v. Woodruff, 327 U.S. 726, 735 (1946).
Generally, "future" claims could not have been individually litigated in the prior settling action. This is because these claims by had yet to accrue in most jurisdictions. (See, for example,Ayers v. Jackson Township, 106 N.J. 557, 583, 561 A.2d 287, 300 (1987) (holding in New Jersey that claim preclusion cannot apply, because the claim could not have been joined with earlier claims, such as property damage; or medical monitoring, as it did not accrue until the disease manifested.)Breaux v. Mine Safety Appliances Co., 717 So.2d 1255 (Lo. App. 5th Cir. 1998) (holding in Louisiana that an asbestos victim who had released his exposure claim was not barred from pursuing a claim for mesothelioma resulting from same exposure, even though the exposure claim had been settled years before).Cole v. Celotex,supra599 So.2d 1058, 1086 (1992) (Dennis J. concurring)). See alsoNational Super Spuds, Inc. v. New York Mercantile Exchange, 660 F.2d 9, 18 (2d Cir. 1981) (Friendly, J.) If a judgment after a trial still cannot extinguish state law claims, the question raised is whether a judgment approving a settlement that has been entered in a representative capacity should be able to do so.Id. This is especially so when the class representatives themselves did not assert the claims which they agreed to extinguish.Id.
The U.S. Supreme Court has failed to address this issue specifically. Nevertheless, it has established guidelines for when a "case" or "controversy" may exist pursuant to Article III. InLujan v. Defenders of Wildlife, 504 U.S. 555 (1992) the Court established an "irreducidible constitutional minimum of standing" which requires that "the plaintiff must have suffered an �injury in fact� - an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) �actual or imminent, not conjectural or hypothetical.�" (Citing Warth v. Seldin, 422 U.S. 490, 508 (1975) and others.) In contrast, potential "future" injuries are not "concrete" in either a "qualitative [or] temporal sense,"Whitmore v. Arkansas, 495 U.S. 149, 155 (1990), nor can they be known to be "imminent."Lujan, 504 U.S. at 560. To be "imminent," there must be a sufficient degree of certainty that the injury will exist in the future to eliminate the possibility the court will decide "a case in which no injury will have occurred at all."Id. at 564 n.2. On these bases, a very compelling argument can be made that a settling court was not empowered to settled the speculative claims of "future" victims.
[I]t is probably impossible to guarantee prospectively the conclusive effect of a class suit judgment. However, that is not really a serious objection to the class suit procedure * * * A litigant always remains free to say there was no actual service of process or that due process was invalid in some respect or that the proceeding was invalidated by fraud, and so on. G. Hazard, J. Gedid and S. Sowle,Historical Analysis of the Binding effect of Class Suits, 146 U of Pa. L. Reb. 1849 (1998).
To extend the doctrine of constructive and virtual representation, adopted by courts of equity on considerations of sound policy and practical necessity, to a decree like this, in which it is apparent that there was no real representation of the interests of these plaintiffs, would be to confess that the court is powerless to do justice to suitors who have never before had a hearing.Id. at 404.
To protect the absent class members who had no representation, the Court held that the post-judgment partition of the land among the heirs at law, and their conveyances to third persons for valuable consideration, could not affect the title of the grandchildren, who were allowed to retake the properties over the claims of subsequent purchasers.
Similarly, inHansberry, the Supreme Court reiterated the principle that finality of judgments, no matter how desirable, must be subordinate to due process of law, reversing the Supreme Court of Illinois which had valued finality more highly. (See Lee v. Hansberry, 372 Ill. 369, 24 N.E.2d 37, 39).
While settling Defendants seek to have their class action settlements interpreted as broadly as possible, there are a number of bases upon which putative absent class members may challenge these settlements in collateral proceedings if they desire to bring independent litigation . While such challenges rarely take place, challenging settlements in order to bring an individual lawsuit presents a valuable mechanism with which to prevent overreaching class action settlements from abridging the rights of innocent victims.

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D.C. Law Library - § 38–2021.05. Computation of annuity; options.
↪ § 38–2021.05. Computation of annuity; options.
§ 38–2021.06. Annuity of teachers retired for disability.
§ 38–2021.05. Computation of annuity; options.
(a) Except as otherwise provided in this part, every teacher who shall be retired under the provisions of § 38-2021.03 or § 38-2021.04 shall receive an annuity composed of: (1) the larger of: (A) one and one-half per centum of the average salary as defined in § 38-2021.13, multiplied by so much of the total service as does not exceed 5 years; or (B) one per centum of the average salary, plus $25, multiplied by so much of the total service as does not exceed 5 years; plus (2) the larger of: (A) one and three-quarters per centum of the average salary multiplied by so much of the total service as exceeds 5 years but does not exceed 10 years; or (B) one per centum of the average salary, plus $25, multiplied by so much of the total service as exceeds 5 years but does not exceed 10 years; plus (3) the larger of: (A) two per centum of the average salary multiplied by so much of the total service as exceeds 10 years; or (B) one per centum of the average salary, plus $25, multiplied by so much of the total service as exceeds 10 years. Notwithstanding the preceding sentence, every teacher retired under the provisions of § 38-2021.03 or § 38-2021.05 who is hired on or after the first day of the first pay period that begins after October 29, 1996 shall receive an annuity equal to 2% of the average salary as defined in § 38-2021.13 multiplied by the number of years of the teacher’s creditable service. Each annuity is stated as an annual amount, one twelfth of which, fixed at the nearest dollar, constitutes the monthly rate payable on the first business day of the month after the month or other period for which it has accrued. Annuities payable to any retired teacher who has become eligible for retirement because of age as defined in § 38-2021.03 shall be payable during the lifetime of the annuitant. Annuities payable to any teacher retired on account of disability shall be subject to the conditions set forth under § 38-2021.04.
(ii) Any lump sum paid on termination of the annuity is repaid to the Custodian of Retirement Funds (as defined in § 1-702(6) for deposit in the District of Columbia Teachers’ Retirement Fund established by § 1-713(a).
(2) If unmarried, not in a domestic partnership, and in good health, a reduced annuity payable to him during his life, and an annuity after his death payable to a survivor annuitant having an insurable interest in such teacher, duly designated in writing and filed with the District of Columbia Retirement Board at the time of retirement, during the life of such survivor annuitant equal to 55% of such reduced annuity. The annuity of the survivor annuitant shall commence on the day after the retired teacher dies, and such annuity and any right thereto shall terminate on the last day of the month before the death of the survivor annuitant. The annuity hereunder payable to the teacher shall be 90% of the life annuity otherwise payable if the survivor annuitant is the same age or older than the annuitant, or is less than 5 years younger than the annuitant; 85% if the survivor annuitant is 5 but less than 10 years younger; 80% if the survivor annuitant is 10 but less than 15 years younger; 75% if the survivor annuitant is 15 but less than 20 years younger; 70% if the survivor annuitant is 20 but less than 25 years younger; and 60% if the survivor annuitant is 25 or more years younger. No such election shall be valid until the retiring teacher shall have satisfactorily passed a physical examination under the direction of the Director of the Department of Human Services of the District of Columbia, as prescribed by the Board of Education. No person shall be eligible to receive an annuity under subsection (b) of § 38-2021.09 based upon the service of the same teacher covering the same period of time.
(3) A reduced annuity of equivalent value providing for a life-insurance benefit payable in a lump sum at the time of the annuitant’s death. The face amount of such life insurance may be in any amount which the retiring teacher shall designate at the time of retirement but shall not exceed his contributions accumulated with interest to the date of retirement. Payment of such insurance shall be made in accordance with the provisions of § 38-2021.10. Any annuitant who elects to receive the reduced annuity with fixed life-insurance benefits may reconvert the value of the life insurance to an additional annuity of equivalent value on any anniversary of the retirement date of said annuitant prior to reaching age 70.
(4) In the event an individual designated as a surviving spouse or domestic partner or as a survivor annuitant under this subsection predeceases the teacher designating such individual, the annuity of such teacher shall, effective the day after the death of such individual, be the amount it would have been if no such beneficiary had been named.
(B) Such increase in annuity shall not exceed the sum necessary to increase such annuity, exclusive of annuity purchased by voluntary contributions under this section, to $4,104. The monthly installment of each annuity so increased shall be fixed at the nearest dollar.
(2) The increases provided by this subsection, when added to the annuities of retired employees, shall not operate to increase the annuities of their survivors, except that the annuity of any such survivor who becomes entitled to annuity shall be increased by the per centum provided in paragraph (1) of this subsection appropriate to the commencing date of such survivors annuity.
(d) A teacher who is unmarried and not in a domestic partnership at the time of retiring under a provision of law which permits election of a reduced annuity with a survivor annuity payable to his spouse or domestic partner and who later marries or enters into a domestic partnership may irrevocably elect, in a signed writing filed with the District of Columbia Retirement Board within one year after he or she marries or enters into a domestic partnership, a reduction in his or her current annuity and an annuity after death payable to his or her surviving spouse or domestic partner as provided in paragraph (1) of subsection (b) of this section. The reduced annuity is effective the first day of the month after such election is received by the District of Columbia Retirement Board. The election voids prospectively any election previously made under paragraph (2) or paragraph (3) of subsection (b) of this section.
(e)(1) Notwithstanding any other provision of this part, other than this subsection, the monthly rate of annuity payable under this section shall not be less than the smallest primary insurance amount, including any cost-of-living increase added to that amount, authorized to be paid from time to time under title II of the Social Security Act [42 U.S.C. § 401 et seq.].
(2) Notwithstanding any other provisions of this part, other than this subsection, the monthly rate of annuity payable under this section to a surviving child shall not be less than the smallest primary insurance amount, including any cost-of-living increase added to that amount, authorized to be paid from time to time under title II of the Social Security Act [42 U.S.C. § 401 et seq.], or 3 times such primary insurance amount divided by the number of surviving children entitled to an annuity, whichever is the lesser.
(3) The provisions of this subsection shall not apply to an annuitant or to a survivor who is or becomes entitled to receive from the United States, or the District of Columbia, an annuity or retired pay under any other civilian or military retirement system, benefits under title II of the Social Security Act [42 U.S.C. § 401 et seq.], a pension, veterans’ compensation, or any other periodic payment of a similar nature, when the monthly rate thereof is equal to or greater than the smallest primary insurance amount, including any cost-of-living increase added to that amount, authorized to be paid from time to time under title II of the Social Security Act [42 U.S.C. § 401 et seq.].
(4) An annuity payable from the Teachers’ Retirement and Annuity Fund to a former teacher, which is based on a separation occurring prior to October 20, 1969, is increased by $240.
(5) In lieu of any increase based on an increase under paragraph (4) of this subsection, an annuity payable from the Teachers’ Retirement and Annuity Fund to the surviving spouse of a teacher or annuitant, which is based on a separation occurring prior to October 20, 1969, shall be increased by $132.
(6) The monthly rate of an annuity resulting from an increase under paragraph (4) or (5) of this subsection shall be considered as the monthly rate of annuity payable under subsection (a) of this section for purposes of computing the minimum annuity under this subsection.
(f) Each year, the District of Columbia Retirement Board shall set the applicable interest rate, mortality table, and cost-of-living factor to be used in the determination of actuarial equivalents or for other pertinent benefit calculations under the provisions of this part.
This section is referenced in § 38-2021.03, § 38-2021.04, § 38-2021.06, § 38-2021.08, § 38-2021.09, § 38-2021.19, and § 38-2023.12.
D.C. Law 15-354, in subsec. (b)(2), substituted “District of Columbia Retirement Board” for “Auditor of the District of Columbia”; and, in subsec. (d), substituted “District of Columbia Retirement Board” for “Mayor of the District of Columbia” and “Mayor”.
D.C. Law 17-231 substituted “surviving spouse or domestic partner” for “widow or widower” throughout the section; rewrote subsec. (b)(1); in subsec. (b)(2), substituted “unmarried’, not in a domestic partnership” for “unmarried”; and, in subsec. (d), substituted “unmarried and not in a domestic partnership,” for “unmarried”, “spouse or domestic partner” for “spouse”, and “marries or enters into a domestic partnership”.
The 2013 amendment by D.C. Law 19-301, in (b)(1), substituted “(B) such spouse or domestic partner elects” for “(B) such spouse or domestic partnership elects” and twice substituted “55 years” for “60 years”.
The 2013 amendment by D.C. Law 19-312 added (f).
For temporary amendment of section, see § 4(c) of the New Hires Police Officers, Fire Fighters, and Teachers Pension Modification Emergency Amendment Act of 1996 (D.C. Act 11-428, October 29, 1996, 43 DCR 6147), and § 4(c) of the New Hires Police Officers, Fire Fighters, and Teachers Pension Modification Congressional Adjournment Emergency Amendment Act of 1997 (D.C. Act 12-10, March 3, 1997, 44 DCR 1633).
For temporary addition of (f), see § 2(d) of the Retirement of Public-School Teachers Omnibus Emergency Amendment Act of 2012 (D.C. Act 19-584, January 1, 2013, 60 DCR 134).
For temporary (90 days) amendment of this section, see § 2(d) of the Retirement of Public-School Teachers Omnibus Congressional Review Emergency Act of 2013 (D.C. Act 20-41, March 25, 2013, 60 DCR 5361, 20 DCSTAT 527).
“Title II of the Social Security Act,” referred to throughout subsection (e), is codified at 42 U.S.C. § 401 et seq.
Application of Law 11-218: Section 7 of D.C. Law 11-218 provided that the act shall apply as of January 28, 1997.
Office of Auditor abolished: The Office of the Auditor of the District of Columbia was abolished and the functions thereof transferred to the Board of Commissioners of the District of Columbia by Reorganization Plan No. 5 of 1952. All functions of the Office of the Auditor including the functions of all officers, employees, and subordinate agencies were transferred to the Director, Department of General Administration by Reorganization Order No. 3 of the Board of Commissioners, dated August 28, 1952, and effective September 2, 1952. The function of receiving written designation for survivor annuity, referred to in subsection (b)(2) of this section, was transferred from the Auditor to the Accounting Officer, Finance Office, Department of General Administration by Reorganization Order No. 20, dated November 10, 1952. Reorganization Order No. 20 was superseded by Organization Order No. 121, dated December 12, 1957. The executive functions of the Board of Commissioners were transferred to the Commissioner of the District of Columbia by § 401 of Reorganization Plan No. 3 of 1967. Organization Order No. 121 was revoked and replaced by Organization Order No. 3, dated December 13, 1967. Part IVC of the latter Order established a Finance Office within the newly created Department of General Administration, and prescribed the functions thereof. These functions were subsequently transferred to the Director of the Department of Finance and Revenue by paragraph 4, Commissioner’s Order No. 69-96, dated March 7, 1969. Functions pertaining to centralized accounting as set forth in Commissioner’s Order No. 69-96 were transferred to the Director of the Office of Budget and Financial Management by Organization Order No. 30, dated April 5, 1972. Organization Order No. 50, dated December 31, 1974, established the Office of Budget and Management Systems, and transferred to that Office the functions of the Office of Budget and Financial Management. The Office of Budget and Management Systems was replaced by Mayor’s Order 79-5, dated January 2, 1979, which Order established the Office of Budget and Revenue Development.
Office of Director of Public Health abolished: Section 1 of the Act of August 1, 1950, 64 Stat. 393, ch. 513, provided that the Health Officer of the District of Columbia would be known as the Director of Public Health. The Health Department of the District of Columbia, including the office of the head thereof, was abolished and the functions thereof transferred to the Board of Commissioners of the District of Columbia by Reorganization Plan No. 5 of 1952. Reorganization Order No. 57 of the Board of Commissioners, dated June 30, 1953, and Reorganization Order No. 52, dated June 30, 1953, combined and redesignated Organization Order No. 141, dated February 11, 1964, established, under the direction and control of a Commissioner, a Department of Public Health headed by a Director, for the purpose of planning, implementing, and directing public health and hospital care programs, and for performing certain other allied medical and paramedical functions. The Anatomical Board was established under the direction and control of the Director of Public Health consisting of members as prescribed in the D.C. Code. The Order prior to redesignation abolished the previously existing Health Department, Gallinger Hospital, Glenn Dale Sanatorium, and the Anatomical Board and transferred their functions and positions to the new Department. The organization of the new Department was set out in the Order. The executive functions of the Board of Commissioners were transferred to the Commissioner of the District of Columbia by § 401 of Reorganization Plan No. 3 of 1967. Functions stated in Organization Order No. 141 were transferred to the Director of the Department of Human Resources by Commissioner’s Order No. 69-96, dated March 7, 1969, as amended by Commissioner’s Order No. 70-83, dated March 6, 1970. The Department of Human Resources was replaced by Reorganization Plan No. 2 of 1979, dated February 21, 1980, which Plan established the Department of Human Services.


*1 Paul R. Hurst, Esq.
*1 Sam Q. Le, Esq.
*1 This appeal involves a size determination of North Star Magnus Pacific Joint Venture (Appellant), a joint venture formed by North Star Construction and Engineering (North Star) and Magnus Pacific Corp. (Magnus Pacific). North Star is a participant in the U.S. Small Business Administration (SBA) 8(a) Business Development (BD) program. North Star, the protégé, and Magnus Pacific, the mentor, entered into a mentor-protégé agreement, which SBA approved on July 5, 2014. Whether the mentor-protégé agreement was in effect at the time Appellant submitted its offer for the instant procurement on July 17, 2015 is disputed and is the subject of this appeal.
*1 On November 20, 2015, the SBA Office of Government Contracting, Area VI (Area Office) issued Size Determination No. 6-2016-019, finding that Appellant is not an eligible small business for the subject procurement. Appellant contends the size determination is clearly erroneous and should be vacated. For the reasons discussed below, the appeal is denied, and the size determination is affirmed.
*1 SBA's Office of Hearings and Appeals (OHA) decides size determination appeals under the Small Business Act of 1958, 15 U.S.C. § 631 et seq., and 13 C.F.R. Parts 121 and 134. Appellant filed the instant appeal within fifteen days of receiving the size determination, so the appeal is timely. 13 C.F.R. § 134.304(a). Accordingly, this matter is properly before OHA for decision.
*1 On May 12, 2015, the U.S. Army Corps of Engineers (Corps), Sacramento District issued Request for Proposals (RFP) No. W91238-15-R-0028 for Hamilton City Flood Risk Management and Ecosystem Restoration in Glenn County, California. The Contracting Officer (CO) set the procurement aside entirely for small businesses, and designated North American Industry Classification System (NAICS) code 237990, Other Heavy and Civil Engineering Construction, with a corresponding annual receipts size standard of $36.5 million. Offers were due July 17, 2015. On that date, Appellant submitted its proposal, self-certifying as a small business.
*1 On July 27, 2015, the CO awarded the contract to Newland Entities, Inc. Appellant's proposal, which offered to perform the contract at the lowest price, was deemed unacceptable on one of the technical factors. The Corps therefore determined Appellant was non-responsible and requested that SBA perform a Certificate of Competency (COC) of Appellant. SBA received the request on October 19, 2015.
*2 During the course of the COC review, information came to light that called into question Appellant's status as a small business concern. Specifically, it was unclear whether there was an SBA-approved mentor-protégé agreement in place at the time Appellant submitted its proposal. On November 3, 2015, SBA initiated a formal size determination of Appellant. 13 C.F.R. § 121.408(a).
*2 Terms of the Agreement. Proposed Mentor agrees to provide such assistance to the Protégé for at least one year pursuant to 13 C.F.R. § 124.520(e)(1)(iii). Continuation of the Agreement is contingent upon SBA's review of the proposed Protégé's report on the Mentor/Protégé relationship as part of the its annual review of the firm's business plan pursuant to 13 C.F.R. § 124.403. The Protégé must request continuance of the Agreement to its servicing district office, in writing, within 60 days prior to the expiration date of the Agreement.
*2 On November 20, 2015, the Area Office issued the size determination finding that Appellant is not an eligible small business for the instant procurement. The Area Office determined Appellant did not qualify for the mentor-protégé exception to affiliation, 13 C.F.R. § 121.103(h)(3)(iii), because it did not have an SBA-approved mentor-protégé agreement in place as of the date it submitted its proposal. (Size Determination at 8, citing Size Appeal of Lukos-VATC JV, LLC, SBA No. SIZ-5532 (2014)).
*3 The Area Office explained that, although SBA had approved a mentor-protégé agreement between North Star and Magnus Pacific on July 5, 2014, that agreement expired one year later on July 5, 2015. To support this conclusion, the Area Office observed the text of the approval letter itself, which states, “This agreement shall expire after one year, unless SBA approves an extension. The protégé must request continuance of the agreement from its servicing district office, in writing, at least 60 days prior to the expiration of the agreement.” (Letter from R. Watkins to J. McClure (July 5, 2014).) Appellant, the Area Office noted, did not receive approval for an extension of the mentor-protégé agreement before it expired.
*3 The Area Office noted further that North Star submitted Amendment 1 to the mentor-protégé agreement, which was signed by the parties on July 6, 2015, to the SBA Sacramento District Office (District Office). The Area Office did not state when North Star submitted this amendment. The record does not establish this date, either.
*3 On October 30, 2015, the District Office responded to North Star, “[SBA] approves your request to extend the mentor-protégé agreement between [North Star] and [Magnus Pacific] for one year through July 4, 2016.” (Letter from P. Tavernia to I. Basrai (Oct. 30, 2015).) The Area Office observed that this communication did not state an effective date and was therefore ambiguous. The Area Office determined the effective date was October 30, 2015, the date the District Office approved the extension. As a result, there was not an approved mentor-protégé agreement in place at the time Appellant submitted its offer.
*4 On December 7, 2015, Appellant filed the instant appeal. Appellant argues the Area Office exceeded its authority by analyzing the substantive requirements of the mentor-protégé program. In doing so, the Area Office erred in determining that there was not an effective mentor-protégé agreement in place as of the date for determining size.
*4 Appellant argues the Area Office did not have jurisdiction to determine that the mentor-protégé agreement was not in effect at the time Appellant submitted its offer. Appellant contends a firm's compliance with the 8(a) mentor-protégé program requirements lies solely within the authority of the 8(a) Office of Business Development, not the Area Office. Size Appeal of Carntribe-Clement 8AJV #1, LLC, SBA No. SIZ-5357 (2012); Size Appeal of Trident3, LLC, SIZ-5315 (2012); Size Appeal of White Hawk/Todd, JV, SBA No. SIZ-4950 (2008) recons. denied, SBA No. SIZ-4968 (2008). Significantly, the regulation that allows district offices to renew mentor-protégé agreements does not authorize area offices to engage in renewal reviews or to make decisions regarding compliance with the Mentor-Protégé Program. See 13 C.F.R. § 124.520.
*4 Appellant contends Size Appeal of Lukos-VATC JV, LLC, SBA No. SIZ-5532 (2014) is distinguishable because, unlike that case, the mentor-protégé agreement at issue here had already been approved. In Lukos, SBA had not approved the mentor-protégé agreement until two days after the challenged firm had submitted its offer. That is why OHA concluded that “if SBA has not yet approved the mentor/protégé agreement, a joint venture between proposed protégé and mentor firms is not entitled to receive the benefits of the mentor/protégé program, including the exclusion from affiliation.” Lukos-VATC JV, LLC, at 15.
*6 In determining the mentor-protégé agreement was not in effect at the time Appellant submitted its proposal, Appellant argues that the Area Office relied “almost exclusively” on one sentence in the approval letter, which states, “This Agreement shall expire after one year, unless SBA approves an extension.” (Appeal at 12, citing Approval Letter.) Appellant argues this sentence does not provide for a specific expiration date, and it must be read in light of SBA's regulations at 13 C.F.R. §§ 124.520(e)(1)(iii), (g)(4), and (e)(4). “The Area Office simply assumed that the ‘expiration date’ must refer to the anniversary date of [the] approval.” (Id. at 15.) Those terms, however, are not defined in the approval letter, the mentor-protégé agreement, or SBA's regulations.
*6 Appellant contends the Area Office relied on the approval letter to change the terms of the mentor-protégé agreement. Such a practice, Appellant argues, is inconsistent with the mentor-protégé agreement's integration clause and is therefore impermissible. Grey v. Am. Mgmt. Servs., 139 Cal. Rptr. 3d 210, 213 (Cal. App. 2012) (relying on integration clause to find contract as “the final expression of the parties' agreement” and excluding extrinsic evidence).
*6 Appellant points out that the mentor-protégé program requires SBA to take affirmative steps before terminating an approved mentor-protégé agreement. For example, SBA may terminate the agreement “if it finds that the Mentor has not provided the assistance set forth in the Agreement or that the assistance has not resulted in any ‘material benefit’ or ‘developmental gains' to the Protégé.” (Appeal at 12-13, quoting Agreement at ¶ 7(iii).) Before exercising certain termination rights, the Agreement and SBA regulations provide that the SBA will notify the mentor of a proposed termination and afford the mentor an opportunity to respond. E.g., 13 C.F.R. §§ 124.520(g)(4) and (h).
*6 Appellant argues the approval letter is not ambiguous with respect to the end-date, because SBA approved the agreement on July 5, 2014, and had not taken steps to terminate it. The October 30, 2015 letter “unequivocally confirmed that the Agreement was continuing for a year-long period of July 5, 2015 to July 4, 2016.” (Appeal at 18). The Area Office's statements that “North Star did not receive approval of the [mentor-protégé agreement] until October 30, 2015” and that “[t]here is no provision in the regulations to retroactively approve the [mentor-protégé agreement]” mischaracterize the issue. SBA had already approved the mentor-protégé agreement, and the approval extended for at least one year until North Star's next review. Appellant reiterates that Part 124 of SBA's regulations do not provide for an affirmative decision to continue the mentor-protégé relationship, but provide for a decision against continuation of the mentor-protégé agreement. See 13 C.F.R. § 124.520(g)(4).
*7 On December 23, 2015, SBA responded to the appeal. SBA argues the Area Office correctly determined that the mentor-protégé joint venture exception to affiliation does not apply, so OHA should uphold the size determination.
*7 SBA argues the Area Office did not exceed its jurisdiction, because it has the authority to determine whether the exception to affiliation for an 8(a) mentor-protégé joint venture applies. Size Appeal of DCS Night Vision JV, LLC, SBA No. SIZ-4997 (2008).
*7 The Area Office also correctly determined that there was not an approved mentor-protégé agreement in place when Appellant submitted its proposal. The mentor-protégé agreement the District Office approved expired after one year and was not reapproved until well after Appellant submitted its proposal. SBA stresses the October 30, 2015 letter is irrelevant because it was issued after July 17, 2015, the date Appellant submitted its proposal, which is the date for determining size. See id. at 8 (“the only relevant evidence that could cause a tribunal to declare the Mentor-Protégé Agreement was in effect would have to be dated before... the date when Appellant submitted its offer, including price.” ); Size Appeal of Dep't of the Navy and Sabreliner Corp., SBA No. SIZ-3443, at 7 (1991) (“What actually occurs after that date with regard to the applicant's size is not relevant to the size determination and cannot be considered.”). Moreover, a mentor-protégé approval that takes place after a joint venture's offer submission is not effective to qualify the joint venture for the mentor-protégé affiliation exception. Size Appeal of Lukos-VATC JV, LLC, SBA No. SIZ-5532 (2014).
*8 Appellant has the burden of proving, by a preponderance of the evidence, all elements of its appeal. Specifically, Appellant must prove the size determination is based upon a clear error of fact or law. 13 C.F.R. § 134.314. OHA will disturb the Area Office's size determination only if, after reviewing the record, the administrative judge has a definite and firm conviction that the Area Office erred in making its key findings of fact or law. Size Appeal of Taylor Consultants, Inc., SBA No. SIZ-4775, at 11 (2006).
*8 I find the Area Office did not err in determining Appellant was not an eligible small business for the instant procurement. The appeal is therefore denied.
*8 Two firms approved by SBA to be a mentor and protégé under § 124.520 of these regulations may joint venture as a small business for any Federal government prime contract or subcontract, provided the protégé qualifies as small for the size standard corresponding to the NAICS code assigned to the procurement and, for purposes of 8(a) sole source requirements, has not reached the dollar limit set forth in § 124.519 of these regulations. If the procurement is to be awarded through the 8(a) BD program, SBA must approve the joint venture pursuant to § 124.513.
*9 13 C.F.R. § 121.103(h)(3)(iii). Therefore, to qualify for this exception, joint venturers must be approved as mentor and protégé firms under 13 C.F.R. § 124.520. This approval process requires the participating firms to enter into a written mentor-protégé agreement “setting forth an assessment of the protégé's needs and providing a detailed description and timeline for the delivery of the assistance the mentor commits to provide to address those needs.” Id. § 124.520(e)(1). The regulations are clear that “SBA must approve the mentor/protégé agreement before the two firms may submit an offer as a joint venture on a particular government prime contract or subcontract in order for the joint venture to receive the exclusion from affiliation.” Id. § 124.520(d)(i). Further, “SBA will review the mentor/protégé relationship annually to determine whether to approve its continuation for another year.” 13 C.F.R. § 124.520(e)(4).
*9 In this case, Appellant has not proved that the Area Office clearly erred in determining that an approved mentor-protégé agreement was not in place as of the date Appellant submitted its proposal for the instant procurement. The approval letter states: “This agreement shall expire after one year, unless SBA approves an extension. The protégé must request continuance of the agreement from its servicing district office, in writing, at least 60 days prior to the expiration of the agreement.” (Approval Letter at 1.) The Area Office interpreted this language to mean that the approval of the mentor-protégé agreement would expire on July 5, 2015. This interpretation is reasonable and does not constitute clear error. Indeed, as SBA notes, had the Acting Associate Administrator intended to set a later date, such as the date of Appellant's annual review, the letter would have explicitly stated as much. Without such a provision, I cannot find fault in the Area Office's determination that the approval expired one year from its approval date. Further, it is noteworthy that North Star and Magnus executed Amendment 1 on July 6, 2015, exactly one year after their mentor-protégé agreement was approved. This indicates that North Star and Magnus themselves were under the impression that the approval of the mentor-protégé agreement would lapse on July 5, 2015, one year after its approval.
*9 Appellant's arguments with respect to the District Office's October 30, 2015 communication are unavailing. Size is determined as of the date the concern submits its initial offer including price. 13 C.F.R. § 121.404(a). In keeping with this rule, OHA has declared that “the only relevant evidence that could cause [it] to declare a mentor-protégé agreement was in effect would have to be dated before ... the date [the joint venture] submitted its offer including price.” Size Appeal of DCS Night Vision JV, LLC, SBA No. SIZ-4997, at 8 (2008). In this case, Appellant submitted its proposal on July 17, 2015. Accordingly, actions from the District Office subsequent to this date are not relevant to whether there was an approved mentor-protégé agreement in place as of the date Appellant submitted its proposal.
*10 Appellant argues unpersuasively that the Area Office erred by reviewing Appellant's compliance with the substantive requirements of the 8(a) BD program, which is beyond its jurisdiction. Size Appeal of Carntribe-Clement 8AJV #1,LLC, SBA No. SIZ-5357 (2012). The Area Office did not review the mentor-protégé agreement for compliance with the 8(a) BD regulations. Rather, the Area Office merely determined whether the agreement was in effect as of the date for determining Appellant's size. This is well within the Area Office's competence. Size Appeal of Lukos-VATC JV, LLC, SBA No. SIZ-5532 (2014).
*10 Appellant argues the Area Office lacked jurisdiction to determine the mentor-protégé agreement was not in effect at the time Appellant submitted its offer. However, OHA has directly rejected this argument. As OHA has explained: “The exception created by 13 C.F.R. § 121.103(h)(3)(iii) presupposes the existence of a mentor-protégé agreement approved by the SBA.” DCS Night Vision JV, at 7. Therefore, “area offices have a duty to examine the record to determine if there actually is an approved mentor-protégé agreement at the time a joint venture submits its offer, including price.” Id. at 8.
*10 Appellant's argument the mentor-protégé program requires SBA to take affirmative steps to terminate an approved mentor-protégé agreement is inapposite. SBA did not terminate the agreement. Rather, the one year term set in SBA's July 5, 2014 approval letter expired, in a fashion similar to the agreement in DCS Night Vision JV. On the date Appellant submitted its offer, SBA had not yet approved the agreement for another year, as required by the regulation. 13 C.F.R. § 124.520(e)(4). This regulation provides, contra Appellant's argument, that SBA's approval of the agreement expires after one year, unless renewed. Accordingly, the argument that the Area Office's determination is varying the terms of the agreement contrary to its integration clause is meritless. It is SBA's approval of the agreement which expired, and the Area Office made no finding which altered the terms of the agreement.
*10 Appellant's argument the District Office's annual approval of its business plan in effect renewed its approval of the mentor-protégé agreement is also meritless. Appellant does not point to any language in the approval that approves the agreement. Had the District Office done so, there would have been no need for the October 30, 2015 approval letter. Further, the District Office approved the business plan on September 28, 2015. Therefore, even if this action is taken as renewal of SBA's approval of the agreement, it would not have been in effect when Appellant submitted its offer on July 17, 2015, so there was no approved mentor-protégé agreement in place.
*11 The Area Office's comment regarding Appellant's 2014 tax return is immaterial to the determination that the mentor-protégé exception to affiliation does not apply and Appellant is therefore not a small business. Accordingly, even if the Area Office was mistaken on this point, it would not be reason to overturn the size determination. E.g., Size Appeals of Med. Comfort Sys., Inc., et al., SBA No. SIZ-5640 , at 16 (2015); Size Appeal of WG Pitts Co., SBA No. SIZ-5575, at 7, n.4 (2014) (finding an area office's mistake immaterial to the decision and therefore harmless error).
*11 The Area Office found that Appellant is not a small business, and Appellant has shown no error in the determination. I therefore DENY this appeal and AFFIRM the size determination. This is the final decision of the Small Business Administration. See 13 C.F.R. § 134.316(d).


text:
G.R. No. 183204, January 13, 2014 - THE METROPOLITAN BANK AND TRUST COMPANY, Petitioner, v. ANA GRACE ROSALES AND YO YUK TO, Respondents.
THE METROPOLITAN BANK AND TRUST COMPANY, Petitioner, v. ANA GRACE ROSALES AND YO YUK TO, Respondents.
This Petition for Review on Certiorari3 under Rule 45 of the Rules of Court assails the April 2, 2008 Decision4 and the May 30, 2008 Resolution5 of he Court of Appeals CA) in CA-G.R. CV No. 89086.
On December 15, 2003, the Office of the City Prosecutor of Manila issued a Resolution dismissing the criminal case for lack of probable cause.43 Unfazed, petitioner moved for reconsideration.
WHEREFORE, premises considered, judgment is hereby rendered ordering [petitioner] METROPOLITAN BANK & TRUST COMPANY to allow [respondents] ANA GRACE ROSALES and YO YUK TO to withdraw their Savings and Time Deposits with the agreed interest, actual damages of P50,000.00, moral damages of P50,000.00, exemplary damages of P30,000.00 and 10% of the amount due [respondents] as and for attorney’s fees plus the cost of suit.
The counterclaim of [petitioner] is hereby DISMISSED for lack of merit.
Aggrieved, petitioner appealed to the CA.
WHEREFORE, premises considered, the Decision dated January 15, 2007 of the RTC, Branch 21, Manila in Civil Case No. 04-110895 is AFFIRMED with MODIFICATION that the award of actual damages to [respondents] Rosales and Yo Yuk To is hereby DELETED.
A. THE [CA] ERRED IN RULING THAT THE "HOLD-OUT" PROVISION IN THE APPLICATION AND AGREEMENT FOR DEPOSIT ACCOUNT DOES NOT APPLY IN THIS CASE.
B. THE [CA] ERRED WHEN IT RULED THAT PETITIONER’S EMPLOYEES WERE NEGLIGENT IN RELEASING LIU CHIU FANG’S FUNDS.
At the outset, the relevant issues in this case are (1) whether petitioner breached its contract with respondents, and (2) if so, whether it is liable for damages. The issue of whether petitioner’s employees were negligent in allowing the withdrawal of Liu Chiu Fang’s dollar deposits has no bearing in the resolution of this case. Thus, we find no need to discuss the same.
The Bank is hereby authorized to withhold as security for any and all obligations with the Bank, all monies, properties or securities of the Depositor now in or which may hereafter come into the possession or under the control of the Bank, whether left with the Bank for safekeeping or otherwise, or coming into the hands of the Bank in any way, for so much thereof as will be sufficient to pay any or all obligations incurred by Depositor under the Account or by reason of any other transactions between the same parties now existing or hereafter contracted, to sell in any public or private sale any of such properties or securities of Depositor, and to apply the proceeds to the payment of any Depositor’s obligations heretofore mentioned.
Petitioner’s reliance on the "Hold Out" clause in the Application and Agreement for Deposit Account is misplaced.
The "Hold Out" clause applies only if there is a valid and existing obligation arising from any of the sources of obligation enumerated in Article 115779 of the Civil Code, to wit: law, contracts, quasi-contracts, delict, and quasi-delict. In this case, petitioner failed to show that respondents have an obligation to it under any law, contract, quasi-contract, delict, or quasi-delict. And although a criminal case was filed by petitioner against respondent Rosales, this is not enough reason for petitioner to issue a "Hold Out" order as the case is still pending and no final judgment of conviction has been rendered against respondent Rosales. In fact, it is significant to note that at the time petitioner issued the "Hold Out" order, the criminal complaint had not yet been filed. Thus, considering that respondent Rosales is not liable under any of the five sources of obligation, there was no legal basis for petitioner to issue the "Hold Out" order. Accordingly, we agree with the findings of the RTC and the CA that the "Hold Out" clause does not apply in the instant case.
In view of the foregoing, we find that petitioner is guilty of breach of contract when it unjustifiably refused to release respondents’ deposit despite demand. Having breached its contract with respondents, petitioner is liable for damages.
exemplary damages and attorney’s fees.
In this case, a review of the circumstances surrounding the issuance of the "Hold Out" order reveals that petitioner issued the "Hold Out" order in bad faith. First of all, the order was issued without any legal basis. Second, petitioner did not inform respondents of the reason for the "Hold Out."82 Third, the order was issued prior to the filing of the criminal complaint. Records show that the "Hold Out" order was issued on July 31, 2003,83 while the criminal complaint was filed only on September 3, 2003.84 All these taken together lead us to conclude that petitioner acted in bad faith when it breached its contract with respondents. As we see it then, respondents are entitled to moral damages.
In this case, we find that petitioner indeed acted in a wanton, fraudulent, reckless, oppressive or malevolent manner when it refused to release the deposits of respondents without any legal basis. We need not belabor the fact that the banking industry is impressed with public interest.87 As such, "the highest degree of diligence is expected, and high standards of integrity and performance are even required of it."88 It must therefore "treat the accounts of its depositors with meticulous care and always to have in mind the fiduciary nature of its relationship with them."89 For failing to do this, an award of exemplary damages is justified to set an example.
The award of attorney's fees is likewise proper pursuant to paragraph 1, Article 220890 of the Civil Code.
In closing, it must be stressed that while we recognize that petitioner has the right to protect itself from fraud or suspicions of fraud, the exercise of his right should be done within the bounds of the law and in accordance with due process, and not in bad faith or in a wanton disregard of its contractual obligation to respondents.
WHEREFORE, the Petition is hereby DENIED. The assailed April 2, 2008 Decision and the May 30, 2008 Resolution of the Court of Appeals in CA-G.R. CV No. 89086 are hereby AFFIRMED. SO ORDERED.
1 Allied Banking Corporation v. Lim Sio Wan 573 Phil. 89 102 2008).
2 Bank of the Philippine Islands v. Court of Appeals, G.R. No. 104612, May 10 1994 232 SCRA 302, 309- 310.
4 CA rollo, pp. 125-149; penned by Associate Justice Remedios A. Salazar-Fernando and concurred in by Associate Justices Rosalinda Asuncion-Vicente and Sesinando E. Villon.
7 Sometimes referred to in the records as "China Golden Bridge Travel and Tours, Inc."
10 Joint Peso Account No. 224-322405145-0; Records, Volume I, p. 9.
13 CA rollo, p. 126.
15 Joint Dollar Account No. 0224-01041-0; Records, Volume I, p. 12.
17 CA rollo, p. 126.
18 Records, Volume I, p. 3.
19 CA rollo, pp. 126-127.
21 Records, Volume II, p. 388.
25 CA rollo, p. 127.
26 Id. at unpaged to 140.
27 Records, Volume I, p.223.
54 Records, Volume I, p. 252.
55 Records, Volume II, pp. 502-508; penned by Judge Amor A. Reyes.
60 CA rollo, p. 148.
78 Records, Volume II, p. 346.
80 Article 2220. Willful injury to property may be a legal ground for awarding moral damages if the court should find that, under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the defendant acted fraudulently or in bad faith.
81 Bankard, Inc. v. Dr. Feliciano, 529 Phil. 53, 61 (2006).
82 CA rollo, p. 133.
85 Article 2229. Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages.
86 Article 2232 of the Civil Code provides that: In contracts and quasi-contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner.
87 Solidbank Corporation v. Spouses Arrieta, 492 Phil. 95, 104-105 (2005) and Prudential Bank v. Lim, 511 Phil. 100, 114 (2005).
88 Solidbank Corporation v. Spouses Arrieta, id. at 104.
(1) When exemplary damages are awarded.

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


It would be like having a mental representation of pure color, and not, say, a color swatch, or something of that color (a “thing” in the “world” to which that color truthfully could be attributed).
I can’t perform this extrapolation, and I can’t see how it could be done. I think the best case that can be made for such a hypothetical correspondence theory of sensation is that you compare x (the current sensation) with y (a remembered instance of previously having had a sensation which, for some reason, seems sufficiently similar to y, that somehow you recall it).
And thus have what counts as a mental representation of that sensation. Not as a disembodied feeling, but rather as one thoroughly embedded in (the recollection of) a “real-world” event. You then compare the current sensation (x ) with the mental representation of y, and attempt to discern if they’re the same, or different, and if so, by how much, etc. Through some kind of a cognitive process.
etc. Each f is dynamic (as for that matter are both sets of f ), presenting themselves with varying degrees of force and vivacity, in a manner not unlike the way Hume distinguishes impressions from ideas in the opening paragraphs of A Treatise on Human Nature.
How might this work in practice? Hold out your finger and stick a pin into it. You experience a sensation comprising a certain feature-set, i.e., the sensation is sharp, it is persistent, it may be accompanied by the extrusion of blood, there is swelling, it is localized to the point where you inserted the pin, etc. Being the inquisitive sort, you wonder, just what that sensation is. So you call up the last time you stuck a pin in your finger, circumspectively analyze the feature-set, and conclude it is similar (or, at least, “close enough”).
What would Wittgenstein’s response be to this experiment? He probably wouldn’t have much to say. As he observes at §285, we can’t experience somebody else’s sensations. “Another person can’t have my pains,” §253, because, obviously, they’re not me.
But he then abandons this promising observation in order to pursue two other issues, although he doesn’t clearly distinguish between them. These are: (a) “Knowing that” one has a sensation, such as pain. Here, he says: “It can’t be said of me at all … that I know I am in pain” (§246). If you “knew” you had pain, then you could “doubt” if you had pain, which can be solved by pricking your finger with a pin, as at §288. This simply is “pain,” not “knowledge of” pain.
And, (b) characterizing a sensation, including how it gets named, how we know what other people are saying when they use the word for it, etc. For example, if one says one doubts if one is in pain, we think he doesn’t know the meaning of the word “pain,” §288. “What does that mean [when I say ‘I am in pain’]? Does it mean: ‘If someone else could know what I am calling “pain,” he would admit that I was using the word correctly?’” (§289).
Language is communal. Therefore, in order to communicate, you must be able to tell whether your sensation is the same type of sensation as that experienced by everybody else. If sensations were private mental experiences, then in order to do so, we would have to “extrapolate it from our own case” and assume everybody else feels the same way. This, however, is implausible. “If one has to imagine someone else’s pain on the model of one’s own, this is none too easy a thing to do: for I have to imagine pain which I do not feel on the model of the pain which I do feel,” §302.
I think Wittgenstein goes too far here. He is right that pain is not a “private object before the mind” and that what counts as pain is not learned by means of an “inner ostensive definition.” As revealed by the futility of our earlier attempt to parse a correspondence theory of sensation, sensations cannot be treated “as if their criterion of identity were very like the criterion of identity of material objects.” He also is right that we don’t engage in a cognitive process of self-introspection, somewhat like that I characterized above, at least while the sensation is happening. Rather, we just are experiencing the sensation, in all of its non-feature set, non-predicative fulsomeness.
However, he is wrong, if he means there never are occasions when we engage in this form of circumspective analysis – though it occurs with reference to specific, remembered incidents, and not some abstract concept. Furthermore, he is wrong if he thinks that just because the use of the word is connected with observable behavior, he somehow has done away with the sensation itself. The sensation is far more than the grammar of its concept, or a grammatical problem. It isn’t some linguistic fiction. Rather, it actually exists.
Here’s an example of just such circumspection at work and in actual practice. I recently went and got my eyes checked, and underwent an examination of the sort an opthamologist typically administers to a patient who needs for glasses (which I do) (yet again). The patient peers into a complex piece of equipment fitted with different lenses, while staring at a chart upon which are printed letters and numbers of different sizes. The opthamologist asks the patient, “What is the smallest line you can see?” or something to such effect, and the patient responds. The opthamologist then flips over a different strength of lens, and the patient is invited to respond to the question, “Is that better? Is that worse?” If the patient isn’t sure, then the opthamologist repeats the exercise. The patient says, “Yes, A is clearer than B,” or vice versa.
In other words, the patient has engaged in a cognitive process, and reached a conclusion of the sort that might be expressed by the phrase, “I know that …”. The patient accomplishes this outcome by comparing the feature-set of incoming sensations (the letters are crisp, the letters are blurry, that’s an “R” and not a “K,” etc.) with the feature-set of the remembered mental representation (the way the alpha-numeric characters appeared when viewed through the previous lens). The patient has to be “referring” to a “mental representation” (or at least engaging in some form of a cognitive process with respect to it), for the simple reason that the previous image no longer physically is present.
The reason why Wittgenstein’s view is wrong, is because of course we experience pain as a phenomenon, even though we might not know what to call it. To continue with the doctor example, the patient isn’t concerned with “naming” what the sensation is, or establishing criteria for the correct application (use) of that identifier. Rather, the patient simply is participating in a process to enable the doctor to evaluate the patient’s condition. The doctor may, but need not, disclose a diagnosis to the patient. The doctor may not arrive at a diagnosis immediately; a variety of observations first might have to be accumulated, the doctor ventures a hypothesis, looks to refute it, confirms it, etc. That is, a word or phrase – a descriptor – probably isn’t assigned to this collection of observations, until some point in the diagnostic process, subsequent to its onset.
Non-conclusionary patient self-reports (i.e., “Where does it hurt?” “It hurts here.”) are an important element the doctor considers, in addition to the doctor’s own clinical observations. It would not be possible for the patient to make these reports, unless the patient in fact was experiencing an underlying symptom. In fact, come to think of it, the entire medical discipline of psychiatry relies almost completely upon patient self-reports.
(1) Functional behavior, that is, the ability to use language, follow rules, manipulate equipment, and the like. These are important to Wittgenstein, because of his theory that actual sensations simply collapse into sensation-experiencing behavior (the type of behavior exhibited by someone experiencing a sensation).
(a) Attention – vigilance: the ability to focus awareness to a specific stimulus in the environment, and to respond to that stimulus.
(b) Speed of processing: the amount of time needed to complete a simple cognitive task, which often includes encoding information, making a decision, then formulating and executing a response (functional behavior).
(c) Working memory: short-term maintenance and manipulation of information, such as in the opthamologist example.
(d) Executive functioning: scheduling processes or task management.
(e) Declarative memory: the explicit recall of previously-learned information; the ability to encode, store and retrieve information from long-term memory.
(f) Reasoning: higher-level cognitive processes which involve complex strategic planning and information-processing skills.
Wittgenstein has nothing to say about any of these phenomena, except to deny they exist. We do not “know” we are having a sensation, we simply have it.
(3) Sensations, which often may be comorbid with cognitive processes. These run the gamut from sublime feelings of happiness or contentment to extremes such as auditory or visual hallucinations. Like I said earlier, Wittgenstein seems to deny these exist. Or, if and to the extent they exist, basically they are irrelevant, because they are manifested in behavior, and there’s nothing more that can be said about them.
(4) Actual brain activity. For example, functional MRI can detect when the dorsal-lateral pre-frontal cortex becomes saturated with oxygenated hemoglobin. This in turn sets up a pattern of activity across the entire brain. Dorsal-lateral hyper-frontality (the hemoglobin is or becomes too deoxygenated, therefore the brain circuits abnormalize) may be caused by asynchronous firing of neurons; which in turn may be caused by low levels of dopamine or norepenephrin. This condition often correlates with the behavioral symptoms to which we have assigned the word “schizophrenia.” It can be moderated with psychotropic medications such as modafinil, which tend to reverse the entire cycle I just have described. Wittgenstein has nothing at all to say about the brain.
Parsing these distinctions through Wittgenstein interestingly illuminates where he’s onto something and where he’s barking up the wrong tree, figuratively speaking.
 Wittgenstein, L., Tractatus Logico-Philosophicus 151 (1961).
 Govier, T., “Variations on Force and Vivacity in Hume,” The Philosophical Quarterly 44 (Jan. 1972); Landy, D., “Humes Impression/Idea Distinction,” 32 Hume Studies 119 (Apr. 2006).
 Temkin, J., “Wittgenstein on Epistemic Privacy,” 31 The Philosophical Quarterly 97 (Apr. 1981).
 Fogelin, R., Wittgenstein 170 (2nd ed. 1987).
 Kripke, S., Wittgenstein on Rules and Private Language 115 (1982).
 Pears, D., Ludwig Wittgenstein 151 (1986 ed.).
 Pears, D., Ludwig Wittgenstein 154 (1970 ed.).
 Brenner, W., Wittgenstein’s Philosophical Investigations 43 (1999).
 Ayer, A., Wittgenstein 77 (1985).
 Kenny, A., Wittgenstein 182 (1973).
 McGinn, M., Wittgenstein and the Philosophical Investigations 121 (1997). Ayer calls it a “private ostensive definition,” Ayer, A., Wittgenstein 80 (1985).
 Pears, D., Ludwig Wittgenstein 150 (1970 ed.). Might we not, with Quine, simply state that such propositions are referentially opaque? Quine, W., Word & Object 141 (1960).
 I read §296 as originating with Wittgenstein’s sarcastic interlocutor, so it doesn’t count. Also – why does he use an exclamation point here? It comes off as though he’s some kind of a child making an exciting discovery.
 A. J. Ayer (of all people) comes to Wittgenstein’s defense. “Wittgenstein did not deny that we have sense-experiences, including sensations of pain and feelings of movement, or that these experiences are private in at least one reputable sense of the term. He may have imagined situations in which one would have a ground for saying that different persons shared their thoughts or sensations, but in the normal way he allowed each of us to have his own. Neither did he advance the view that a man’s sensations and feelings, let alone his thoughts and images, are identical with physical events. He did not maintain that it is only if they are interpreted in physical terms, whether as referring to physiological states, or to dispositions to overt behavior, that statements about one person’s experiences can be made intelligible to another.” Ayer, A., Wittgenstein 74 (1985).
 Ayer, A., Wittgenstein 109 (1985).
 E.g., if the patient is unconscious and a bone is sticking out of the patient’s arm, then the doctor confidently might diagnose the patient has a broken arm, without soliciting patient input. Or, the patient might have no idea of what’s going on, due to lack of specialized knowledge, cognitive impairment, absence of insight, or for any number of other reasons.
 The use of this kind of introspective evidence in cognitive science is the subject of considerable academic debate, as it should be; see, e.g., Jack, A. & Roepstorff, A. (eds.), Trusting the Subject? (2003). One volume wasn’t enough, so they put out another one with more essays, in 2004.
 This taxonomy is not original with me; see, e.g., Green, M., “Cognitive Impairment and Functional Outcome in Schizophrenia and Bipolar Disorder,” 67 J. Clin. Psychiatry 3 (2006).


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【1】a. Sinor, Denis. The Cambridge History of Early Inner A-sia, Cambridge University Press. 1990, 97-110.
【2】a. Kossack G. Van den Arfangen des skythoiranichenTierstils Skythika. Munchen: Bayerische Akademie der Wis-senschaften. Philosophisch-historische Klosse 98: 24-86.
b. Dudarev S. L, To the question about the place of the Kim-merian complexes from the Western Asia in the system of thechronological and cultural connections in the Northern Black Searegion, Caucasus and the Eastern European regions, Journal ofAncient History: 1998, pp. 77-93.
【3】Klochko V. I, Kovalyukh N. N, Skripkin V, MotzenbeckerI., Isotope chronology of the Snbotiv settlement, Radiocarbon 40（2）: 667-673.
【4】Petrenko, Vladimir G. Scythian culture in the North Cau-casns, Nomads of the Eurasian Steppes in the Early Iron Age,Berkeley: Zinat Press, 1995, pp. 18-21.
【5】Skory S. A. Kimmeriytsy v ukrainskoy lesoostepi. Kiev,Poltava, 1999.
【6】Murzin, V. Yu. Proiskhozhdenie skifov: osnovnie etapyformirovaniya skifskovo etnosa, Kiev, 1990.
【7】a. Artamonov, M.I. “K voprosu o proiskhozhdenii skifov”,Vestnik drevney istorii, Moscow, 1950, pp. 37-47.b. Grakov, B. N. Skify （the Scythians）, Moscow, 1971, pp.23-25.
【8】Teranozhkin, A. I. Kimmerijtsy, Kiev. 1976.
【9】Gryaznov M. P. Arzhan–tsarskiy kurgan ranneskifskogovremeni, Leningrad: Nauka, 1980, p.61.
【10】Rostovtsev, M. L. Skifiya i Bospor, Leningrad, 1925, pp.302-303,308.
【11】Kyzlasov, L. R. Uyukskii kurgan Arzhan i repros pro-iskhozhdeniya sakskoi kul’ try, Sovetskaya Arkheologiya, 1977,p. 2.
【12】Pogrebova M. N. and Raevsky D. S. Rormie skify i drevniy Vastok. Moscow. 1992.
【13】Kuz’ mina E. E. Mythology and Art of Seythians andBoctrians, Moscow, 2002.
【14】Jacobson, Esther. the art of the scythians: the interpene-trcaion of cultures at the edge of the Hellenic world, E. J. Brill:Leiden, New York, Kfiln, 1995, pp. 31-38.
【15】Bokovenko, N. A., Asian Influence on European Scythia,Ancient Civilizations from Scythia to Siberia, Vol. 3, No. 1., Lei-den: E. j. Brill, 1996, pp. 97-112.
【16】Jacabson, Esther, The Art of the Scythians: The Inter-penetration of Cultures at the Edge of the Hellenic World. Lei-den: E. J. Brill, 1995.18-19.
【18】a. Bolticon, J. P. D. Aristeas oflsland, Oxford, 1962, pp.81,82.
【19】“Hudson. G. F., Europe and China.”A Survey of their Re-lations from the Earliest Times to 1800, vel. 1, London: Arnold,1931. pp. 35,36.
【23】Sophie Legrand., The emergence of the Scythians: BronzeAge to Iron Age in South Siberia, The emergence of the Karasukculture, Antiquity 80（2006）: 843-879.
【24】Mallory, J. P., F. G. McCormac, P. J. Reimer andMarsadolov, L. S., The Date Of Pazyryk, A ncient interactions: eastand west in Eurasia, McDonald Institute for Archaeological Re-search, Boyle, 2002.
【25】A. Y. Alekseev, N. A. Bokovenko, Y. Baltrik, K.A.Chgunov, G. Cook, V. A. Dergaehev, N. Kovalyukh, G. Possnert, J.van der Plicht, E. M. Scott, A. Sementsov, V. Skripkin, S. Vasiliev,G. Zaitseva, A chronology of the Scythian antiquities of Eurasiabased on new archaeological and C14 data, Radiocarbon 43（2001）pp. 1085-1107.
【29】Murzin, V. Yu, Proiskhozhdenie skifov: osnovnie etapyformirovaniya skifskovo etnosa, Kiev, 1990.
【30】Kossack, G. Neufunde aus dem Novocerkassker For-menkreis und ihre Bedeutung furr die Geschichte steppenbezo-gener Reitervolker der spaten Bronzezeit. II Mare Nero 1, 1994.pp. 19-54.
【31】Volkov, V. V. Early Nomads of Mongolia, Nomads of theEurasian Steppes in the Early Iron Age, Berkeley: Zinagt Press,1995: 330.
【35】Clenova, Natal’ ja L., On the Degree of Similarity betweenMaterial Culture Components within the “Scythian World”, TheArchaeology of The Steppes Methods And Strategies, Napoli,1994, pp. 520-521,524, fig. 1.2.5.
【36】a. иecceh, A. Hekotopble naMRTHHKH VIII-VII BB.ДOH. э.на CeBepHOM KABKA3e, Bonpocbi cknФo-capmatckoйapxeoлorHH, MockBa, 1954. c. 124, PHc. 13.
【37】демиденкоC.B.2008.ьонэовыекомnыдревнux HnemeH Huж-нeso　лo6onx6я u южноболpupan6rю（V.B.дон.э.-шв.н.э.URSS,MOCKBA.
【39】Konsgtantin V.C}ug unov, Hermann Parzinger, AnatoliNagler. Der Goldschatz van ArZan. Ein Frstengrab der Skythen-zeit in der sdsibirischen StepPe, Schirmer/Mosel, 2006.
【45】Alexxei Kovatev, Uberlegangeu zur Herknnft der skythenaufgind archaologischer Daten, Eurasia A ntiqua, pp. 247-271,1998/4.
【48】Kuz’ mina, Elena E., The origin of the Indo-lranians, TheNetherlands; Boston: Brill, 2007.
【52】Marsadolov, Leonid, The Cimmerian Tradition of the Gor-dian Tumuli （Phrygia）: Found in the Altai Barrow（Bashadar,Pazyryk）, Kurgans, Ritual Sites, and Settlements: EurasianBronze ond Iron Age, Oxford: The Basingstoke Press, 2000, pp.247-258.
【55】a. Bunker, Emma C. Gold in the Ancient Chinese World:A Cultural Puzzle, A rtibus A sioe, 1993, Vol. LIII/1-2, pp. 27-50.
【58】Rice, T. T. 1957. The Scythians, London, p. 43.
【59】Bokovenko, N., & I. Zasetskaya. Migrations of early no-mads of the Eurasain steppe in the context ef climatic changesImpact of the Environment on Hnman Migration in EursaiaLondon: Kluwer Academic Publishers, 2004. pp. 21-34.
【60】Van Geel, B., Bokovenko, N. A., Burova, N. D., ChugunovK. V., Dergachev, V. A., Dirksen, V. G., Kulkova, M., Nagler, A.Parzinger, H., van der Plicht, J., Vasiliev, S. S., Zaitseva, G. IClimate change and the expansion of the Scythian culture after 85BC: a hypothesis. Jouraal of Archacological Science, Volume 31Issue 12, pp. 1735-1742.
【61】Tairov, A. D., Izmemeniya klimata stepei i lesostepeTsentralnoi Evraziyi vo H-I tys. do n. e.: meterialy k istoricheskim rekonstruktsiyam. Cbelyabinsk: Rifei, 2003.
【62】Koryakova, Ludmila., Epimakhov, Andrej VladimirovichThe Urals and Western Siberia in the Bronze and Iron AgesCambridge University Press, 2007.
【63】Kurochkin, G. N., Generator kochevykh narodov v Tsen-tralnoi Aziyi i mekhanizm ego funktionirovaniya. Paleodemografiy.i migrationnye protsessy v Zapadni Sibiri v drevnosti i sredr,evekovy’e. Barnauh Altai State University, 1994,pp. 89-92.
Abstract: Referring to the archaeological materials of Xinjiang, this paper discusses the origins of the earlScythian Culture and the relationship between Scythian Culture and the eastern Eurasian Steppes. Xinjiang and itperipheral areas had had interactions with Pontic area before the westward migration of Scythians, in which the re-mains of the Sandaohaizi Culture played primary role, and its expansion was also the main cause of the westward mi.gration of Scythians. After the westward migration of Scythians, the Eurasian Steppes enter an age of nomadic econo-my as the main economic type and the polarization of the peoples living on the steppes was intensified but their cul-tures were converging and the nomadic culture was gradually formed on the steppes.

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The Commonwealth is not required to prove that the defendant himself performed the act that caused the victim's death. However, to establish that a defendant is guilty of murder [or voluntary manslaughter or involuntary manslaughter], the Commonwealth must prove two things beyond a reasonable doubt. First, the Commonwealth must prove that the defendant knowingly participated in the commission of the crime [identify the crime if needed to avoid confusion]. Second, the Commonwealth must prove that he did so with the intent required to commit the crime.
A defendant may knowingly participate in a crime in several ways. He may personally commit the acts that constitute the crime. He may aid or assist another in those acts. He may ask or encourage another person to commit the crime, or help to plan the commission of the crime. Alternatively, the defendant may knowingly participate by agreeing to stand by at or near the scene of the crime to act as a lookout, or by providing aid or assistance in committing the crime, or in escaping, if such help becomes necessary. An agreement to help if needed does not need to be made through a formal or explicit written or oral advance plan or agreement; it is enough if the defendant and at least one other person consciously acted together before or during the crime with the intent of making the crime succeed.
The Commonwealth must also prove beyond a reasonable doubt that, at the time the defendant knowingly participated in the commission of the crime [identify the crime if needed to avoid confusion], he had the intent required for that crime. You are permitted, but not required, to infer the defendant's mental state or intent from his knowledge of the circumstances or any subsequent participation in the crime. The inferences you draw must be reasonable, and you may rely on your experience and common sense in determining the defendant's knowledge and intent.
Mere knowledge that a crime is to be committed is not sufficient to convict the defendant. The Commonwealth must also prove more than mere association with the perpetrator of the crime, either before or after its commission. It must also prove more than a failure to take appropriate steps to prevent the commission of the crime.
Mere presence at the scene of the crime is not enough to find a defendant guilty. Presence alone does not establish a defendant's knowing participation in the crime, even if a person knew about the intended crime in advance and took no steps to prevent it. To find a defendant guilty, there must be proof that the defendant intentionally participated in some fashion in committing that particular crime and that he had or shared the intent required to commit the crime. It is not enough to show that the defendant simply was present when the crime was committed or that he knew about it in advance.
Where a defendant is charged with felony-murder, the Commonwealth must prove beyond a reasonable doubt that the defendant knowingly participated in the commission of the underlying crime [identify the life felony to avoid confusion], that he did so with the intent required to commit the underlying crime, and that he had or shared the intent to kill, the intent to cause grievous bodily harm, or the intent to do an act which, in the circumstances known to him, a reasonable person would have known created a plain and strong likelihood that death would result.
Where an element of an offense is that a person who committed the crime possessed, carried, or used a weapon, the Commonwealth must prove beyond a reasonable doubt either that the defendant himself possessed a weapon, or that the defendant knew that a person with whom he participated in the commission of the crime was armed with a weapon. However, mere knowledge that a participant in the crime was armed is not sufficient to hold the defendant liable for the acts of that participant. The Commonwealth must also prove that the defendant knowingly participated in the commission of the crime, with the intent required to commit the crime.
The defendant is not guilty of knowingly participating in the commission of the crime if there is a reasonable doubt whether he withdrew from the planned crime in an effective and timely manner. A defendant withdraws from a planned crime by clearly communicating his intent not to be involved in the crime and ending his involvement. A withdrawal is effective and timely only if: (1) the defendant withdraws from the planned crime before the commission of the crime has begun; (2) the defendant, by words or conduct, clearly communicates his withdrawal to the other participant[s] in the planned crime; and (3) the communication of the withdrawal is done early enough that the other participant[s] has [have] a reasonable opportunity to abandon the crime. A withdrawal is not timely and effective if it comes so late that the crime cannot reasonably be stopped.
The defendant is charged with having committed a number of crimes with other participants. For each such crime, the Commonwealth must prove that the defendant was a knowing participant during that crime and did not withdraw in a timely and effective manner. For example, a defendant may knowingly participate in one crime, and thus may be guilty of that offense, but then may withdraw from any later planned crime, and, if the withdrawal is timely and effective, the defendant is not guilty of the later offense.
 Commonwealth v. Deane, 458 Mass. 43, 50-51 (2010) ("Commonwealth is not required to prove exactly how a joint venturer participated in the murders . . . or which of the two did the actual killing"). See Commonwealth v. Zanetti, 454 Mass. 449, 467, 470-471 (2009) (promulgating model jury instruction). Cf. Commonwealth v. Echavarria, 428 Mass. 593, 598 & n.3 (1998) (giving "exemplary" example, but one that uses obsolete joint venture language).
 Commonwealth v. Deane, 458 Mass. at 50-51; Commonwealth v. Zanetti, 454 Mass. at 467-468, 470-471 (promulgating model jury instruction). See Commonwealth v. Marrero, 459 Mass. 235, 247 (2011); Commonwealth v. Housen, 458 Mass. 702, 706-707 (2010); G. L. c. 274, § 2.
 Commonwealth v. Zanetti, 454 Mass. at 462-464. Commonwealth v. Santos, 440 Mass. 281, 290 (2003); Commonwealth v. Soares, 377 Mass. 461, 470, cert. denied, 444 U.S. 881 (1979).
 Commonwealth v. Zanetti, 454 Mass. at 462-463; Commonwealth v. Soares, 377 Mass. at 470.
 Commonwealth v. Mavredakis, 430 Mass. 848, 863-864 (2000), quoting Commonwealth v. Colon–Cruz, 408 Mass. 533, 545 (1990) (escape); Commonwealth v. Miranda, 441 Mass. 783, 791-792 (2004), quoting Commonwealth v. James, 30 Mass. App. Ct. 490, 499 n.10 (1991) (lookout).
 Commonwealth v. Zanetti, 454 Mass. at 466-467; Commonwealth v. Deane, 458 Mass. at 50-51; Commonwealth v. Echavarria, 428 Mass. at 598 n.3.
 A joint venturer need not be proved to have committed the murder with extreme atrocity or cruelty, as long as one joint venturer committed the killing with extreme atrocity or cruelty. See Commonwealth v. Chaleumphong, 434 Mass. 70, 79-80 (2001), quoting Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983) (finding no error in instruction that "[i]t is not necessary for the Commonwealth to prove that [the defendants] had a conscious awareness that the acts were being committed with extreme atrocity or cruelty or that either of them desired the acts to be carried out in that manner . . . . We have consistently held that 'proof of malice aforethought is the only requisite mental intent for a conviction of murder in the first degree based on murder committed with extreme atrocity or cruelty'").
 Commonwealth v. Carnes, 457 Mass. 812, 823 (2010), citing Commonwealth v. Soares, 377 Mass. at 470.
 Commonwealth v. Carnes, 457 Mass. at 837 ("reasonable"); Commonwealth v. Zanetti, 454 Mass. at 470.
 Commonwealth v. Soares, 377 Mass. at 471; Commonwealth v. Perry, 357 Mass. 149, 151 (1970).
 Commonwealth v. Echavarria, 428 Mass. at 598 n.3.
 Commonwealth v. Zanetti, 454 Mass. at 470-471 (appendix providing model jury instruction); Commonwealth v. Maynard, 436 Mass. 558, 564-565 (2002), quoting Commonwealth v. Ortiz, 424 Mass. 853, 859 (1997).
 Commonwealth v. Deane, 458 Mass. at 58, citing Commonwealth v. Ortiz, 424 Mass. at 859; Commonwealth v. Zanetti, 454 Mass. at 470-471 (appendix providing model jury instruction).
 Commonwealth v. Brown, 477 Mass 805, 832 (2017).
 Commonwealth v. Britt, 465 Mass. 87, 100 (2013) ("The Commonwealth should only bear the burden of proving that a joint venturer had knowledge that a member of the joint venture had a weapon where the conviction on a joint venture theory is for a crime that has use or possession of a weapon as an element"). Therefore, "the requirement of knowledge of a weapon in the context of murder in the first degree on a joint venture theory applies only where the conviction is for felony-murder and the underlying felony has as one of its elements the use or possession of a weapon." Id. Neither possession nor use of a firearm is an element of murder in the first degree based on deliberate premeditation or extreme atrocity or cruelty. See id.
 Commonwealth v. Akara, 465 Mass. 245, 254 (2013); Commonwealth v. Zanetti, 454 Mass. at 467-468.
 Commonwealth v. Rivera, 464 Mass. 56, 74 (2013), quoting Commonwealth v. Miranda, 458 Mass. 100, 118 (2010) (defendant entitled to withdrawal instruction only where there is evidence of "an appreciable interval between the alleged termination and [the commission of the crime], a detachment from the enterprise before the [crime] has become so probable that it cannot reasonably be stayed, and such notice or definite act of detachment that other principals in the attempted crime have opportunity also to abandon it").
 Commonwealth v. Fickett, 403 Mass. 194, 201 n.7 (1988).
 See Commonwealth v. Rivera, 464 Mass. at 74, quoting Commonwealth v. Miranda, 458 Mass. at 118; Commonwealth v. Pucillo, 427 Mass. 108, 116 (1998) (no error where judge instructed jury that "the withdrawal and abandonment must be 'in a timely and effective manner,'" that "if [the] withdrawal comes so late that the crime cannot be stopped, then it is too late and it is not effective," and "that 'a withdrawal is effective only if it is communicated to the other persons in the joint venture'").
 Commonwealth v. Pucillo, 427 Mass. at 116.
 Commonwealth v. Hogan, 426 Mass. 424, 434 (1998).

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The dissertation in hand is engaged in the understanding and cognition of earthquakes. Essentially it is the attempt to draw near the natural phenomenon and to broaden our conception of it: (i) What actually is an earthquake? What makes it up? Why might it be fascinating? (ii) How were and how are earthquakes depicted in the textual and pictoral tradition in Europe? (iii) How is the form of depiction related to the content 'earthquake'? How does the phenomenon change when the form of depiction is altered? (iv) And last not least: which form seems to be most suitable for the depiction of an earthquake? According to the above questions 16 'earthquake-depictions' are sampled to investigate the relation between form and content. The attempt is made to provide a collection of great diversity in form: Today's usual manner of earthquake depiction is represented by the reaction, the earthquake of Kobe has received (§ 13 seismological article, § 14 press releases, § 15 earthquake simulator in the Natural History Museum London); then there are chosen: two samples of the Old Greek tradition (§ 1 myth of Poseidon, § 2 Aristoteles' 'Meteorologica'), further two from the Roman tradition (§ 3 Seneca's 'Naturales Quaestiones', § 4 'Aetna'), and two from the Christian tradition (§ 5 'Bible', § 6 Thomas Aquinas on Aristotle's 'Meteorologica'); furthermore there are some samples looked upon that show reaction on the Lisbon earthquake of 1755 (§ 8 shocking ballads, § 9 Voltaire, § 10 copper engravings of Le Bas, § 11 Immanuel Kant, § 12 John Michell). Last not least the science fiction novel 'Richter 10' by Clarke and McQuay (§ 16) is examined. Finally I complain that the manner of scientific depiction is 'un-sensual' and disposing. Therefore the dissertation is meant to flow into a counter-project. The last chapter scrutinizes the experience of the investigations before under a wider angle. In consequence I suggest to investigate an acoustical transponation of the earth's movements. An example of the new kind of sound that emerges from that is drawn from a 1994 earthquake in Chile. A range of further considerations show that not only the form of the acoustical transformation seems promising but also its content: far from the mainstream of seismological research the new acoustic form renders the question of earthquake prediction in a unusual but new and fairly easy way. All of this results in me hoping that the releasing of this new form of depiction triggers of a new field of scientific research at the same time.


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Many believe that we need a constitutional amendment to overturn Roe v. Wade. However, Section Five of the Fourteenth Amendment expressly empowers the Congress, by appropriate legislation, to enforce the guarantees of due process and equal protection contained in the Amendment’s first section. As someone who believes in the inherent and equal dignity of all members of the human family, including the child in the womb, would you propose to Congress appropriate legislation, pursuant to the Fourteenth Amendment, to protect human life in all stages and conditions?
Ron Paul responded to my question not by embracing judicial supremacy, but by denying that the 14th Amendment authorizes Congress to legislate to protect the unborn. Interestingly, Paul himself has a perfect pro-life voting record–in Congress. In his view, however, the abortion question is one that the Constitution leaves ultimately to the individual states, not the national government.
In his exchange with me, Congressman Paul argued that reading the 14th Amendment broadly enough to empower Congress to protect the unborn would be inconsistent with the 10th Amendment–the constitutional provision reminding us that powers not delegated by the Constitution to the federal government are reserved to the states and the people. But the Constitution, in its 14th Amendment, plainly does delegate to Congress power to enforce its guarantees of due process and equal protection. Congressman Paul, like the other Republican candidates, believes that the unborn, no less than those human beings at later developmental stages, are members of the human family–in other words, persons–entitled to the same protections as others. And he is right to believe it.
I am hard-pressed to understand Paul’s objection. If the Constitution grants a power to the central government, then the central government possesses that power. Should it be up to the States, individually, to decide the abortion issue? If it should, then why not leave slavery up to the States, individually? In other words, why should the Fourteenth Amendment any less binding than the Thirteenth Amendment? It seems to me that Paul is more enamored of “States’ rights,” than he is of liberty. And make no mistake about it, abortion is anti-libertarian.
The Supreme Court’s abortion decisions can be overturned only by an overruling decision of the Court itself or by a federal constitutional amendment. Congress has no power under § 5 of the Fourteenth Amendment to define the unborn child as a “person” for purposes of § 1 of the Amendment, when the Court has held (in Roe) directly the opposite. Removal of the Supreme Court’s appellate jurisdiction over abortion cases would not affect the binding force of those decisions and would actually prevent a differently constituted Court from overruling Roe and Casey. The proposals made to the Republican presidential candidates at their “Tea Party” forum do not offer a realistic means of overturning Roe v. Wade and do not deserve the support of the pro-life community.
Roe can be overturned only by a decision of the Court itself overruling Roe or by a federal constitutional amendment–neither a federal statute enacted under § 5 of the Fourteenth Amendment defining the word “person” as used in § 1 of the Amendment, nor a statute removing the Supreme Court’s appellate jurisdiction over abortion cases would have that effect.
It is conceivable that a Republican-controlled Congress could pass the law suggested by Robert George, and that a Republican president would enforce the law. Perhaps even a Democrat president would enforce the law as long as he was confronted by a Republican-controlled Congress and popular opinion on the morality of abortion, which has been shifting toward the pro-life position. The Supreme Court would be well advised to make like the Three Wise Monkeys.
My main concern is that the precedent of blatant departmentalism on a salient issue would be a dangerous one. Use of the doctrine would invite a Democrat-controlled Congress to conspire with a Democrat president to ignore, say, a Supreme Court ruling that overturns Obamacare or the McCain-Feingold Act.
P.P.S. In “Human Personhood Begins at Conception.” philosopher Peter Kreeft presents the arguments commonly used to explain why the unborn child is not a human person and then shows clearly and simply why each of these arguments cannot possibly be true.

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Korolev V. Korovin M. live score (and video online live stream*) starts on 17.4.2019. at 07:00 UTC time at Court 2 stadium, Antalya, Turkey in Antalya, Singles M-ITF-TUR-10A - ITF Men. Here on SofaScore livescore you can find all Vladimir Korolev vs Mikhail Korovin previous results sorted by their H2H matches. Links to Korolev V. vs. Korovin M. video highlights are collected in the Media tab for the most popular matches as soon as video appear on video hosting sites like Youtube or Dailymotion. We're not responsible for any video content, please contact video file owners or hosters for any legal complaints.
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NAME: Korolev V. - Korovin M.
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