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That title up there is a quote from Samuel Goldwyn, he of Hollywood studio fame.
A lawyer recently introduced himself to me and, after telling me that he read this blog every day, said to the effect that he thought I was not always right, but he enjoyed reading it.
Well, I totally agree with him. You see, what you have here is my unvarnished opinion on whatever I choose to write about. My opinions may not always be right, but they might send you off on your own quest for something more solid.
As for what I do in court, the appellate courts may not agree with my opinion (if they care), other chancellors may not agree, and even lawyers may not agree. But in my court I’m never wrong until the COA or MSSC says I’m wrong, or until I change my mind. And I think my opinions, as do yours, and those of other lawyers and judges, have some value in themselves.
Seriously, you should regard this blog as a starting point. As one reader said, he searches here first on chancery issues and then uses what he finds to search on Westlaw. That’s in keeping with what I have said here many times: this is a starting point. Where you go from here with further research and analysis may take you in a different direction.
I am never offended when someone challenges my conclusions and judgments. That is what the law is all about. That is how the law grows and develops. That is what lawyers and judges do. Out of the controversy we hope that truth will emerge, and I think in most cases that is what happens.
Dorothy True died in 2014, at age 100. Her husband had predeceased her. She was survived by her four children: Ann Schmidt; Mary Hegwood; John True, who died after Dorothy’s death; and Jim True.
Jim filed to admit Dorothy’s eight-page holographic will to probate. Ann and Mary petitioned the chancery court to contest the will based on some formal irregularities. Following a hearing, the chancellor ruled that the will was a valid holographic will. It appears that Ann and Mary had proceeded against the executor and anyone else who had entered an appearance. But the estate of John, and some other devisees, as well as some heirs of the decedent, were not made parties. Ann and Mary appealed.
[T]he Legislature has provided that all interested persons must be made parties to the will contest. This requirement is jurisdictional. The Court has no power to proceed with a will contest, if any of the interested parties are not before the court. If the court does proceed the decree is invalid. It does not bind anyone, including those who participated in the contest. Moreover, the right to appeal on the basis of nonjoinder is not waived by the failure to plead it in the trial court.
The court cannot properly entertain a contest of the will without having before it all the parties interested in such contest. It was error to proceed without having them before the court. “There ought to be only one contest of the will, and, if the parties are not before the court when the will is being contested, of course their rights could not be affected by such contest.” This Court has consistently followed that interpretation in other cases.
[S]uch parties were necessary, indispensable parties to the contest of the will. The court was without power to proceed without them.
In Moore this Court held that a chancery court did not have the authority to hear a will contest until “all persons interested” were made parties.
Moore remains good law insofar as it holds trial proceedings must be held in abeyance until all necessary parties are joined in a suit contesting a will. Garrett v. Bohannon, 621 So. 2d 935, 937-38 (Miss. 1993) (internal citations omitted). The Court held that a judgment entered in a will contest “absent joinder of all necessary parties is void” and “must be set aside.” Id. at 938. In both Garrett and Moore, supra, the Supreme Court made it absolutely clear that although a failure to join a necessary party may be waived in some types of cases, it cannot be waived in a will contest; it may be raised for the first time on appeal, even by a party who participated below and failed to join the missing parties. See id. at 937-38; Moore, 247 Miss. at 787-88; 157 So. 2d at 861-63.
¶8. Returning to the present case, it is evident that we must reverse and set aside the judgment below because all necessary parties were not joined. John’s estate and Jamie are entitled to inherit under the contested will but were not joined. John’s estate and Frances’s two daughters were entitled to inherit under the law of intestate succession but were not joined. All were interested parties within the meaning of section 91-7-25 and Supreme Court precedent.
¶9. On appeal, Jim argues that his sisters waived this issue, that the missing parties’ interests were adequately represented, and that their joinder would not have made the slightest difference. [Fn omitted] We are sympathetic to these arguments. However, our Supreme Court has held specifically and repeatedly that the statutory requirement cannot be waived because it is both mandatory and jurisdictional. Its decisions do not reflect careless or imprecise use of the term “jurisdictional.” [Fn omitted] Rather, the point has been made and reaffirmed with deliberation and clarity over the course of many years. As such, any relaxation of or exception to this requirement must come from the Supreme Court or the Legislature.
¶10. Accordingly, the judgment rendered by the chancellor absent joinder of all interested parties is void and must be set aside. The case is remanded for joinder of all interested parties pursuant to the statutory mandate. Garrett, 621 So. 2d at 938.
So, who were the unjoined interested parties who were necessary to jurisdiction in this case? Note at ¶8 that the COA finds both the unjoined devisees and the unjoined heirs as necessary for jurisdiction. That’s because if the will is set aside, the heirs would stand to inherit.
This one is on the lawyers. It’s not the judge’s job to investigate and inquire about who should be made parties in a case such as this.
In 2007, Annie and Frederick Griffin got into a dispute with the mortgage carrier, ABN, over modified terms, and stopped paying. They then sued in federal court alleging fraud and violation of other federal laws on debt collection. ABN filed a motion to compel arbitration, but the matter returned to federal court in 2010 after the arbitrator no longer handled consumer cases. The Griffins filed a motion to declare the arbitration agreement unenforceable, and in response ABN withdrew the arbitration request, no doubt to move the case along. The court granted ABN’s motion.
In January, 2014, the Griffins filed another complaint in chancery court raising the same legal claims and issues as in the federal suit, and based on the same set of facts. There ensued a removal to and remand from federal court, a recusal, and finally a dismissal in chancery on the ground of res judicata. The Griffins appealed pro se.
¶7. “The appropriateness of application of the doctrine of res judicata is a question of law” and will therefore be reviewed de novo. Swaney v. Swaney, 962 So. 2d 105, 108 (¶11) (Miss. Ct. App. 2007).
¶8. We agree with the chancellor that Griffin II [the chancery matter filed after the federal court dismissal] is properly barred under the doctrine of res judicata. The doctrine of res judicata has four identities: (1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made. Harrison v. Chandler-Sampson Ins., 891 So. 2d 224, 232 (¶24) (Miss. 2005).
¶9. All four identities are met in the case at hand. The factual allegations in the complaint of Griffin II were copied almost verbatim from the complaint of Griffin I, and with the exception of dropping a couple of claims (the FDCPA and TILA claims), the complaint reasserts the same claims of fraud. All parties present in Griffin I were also present in Griffin II.
¶10. In addition to those four identities, to qualify as res judicata the prior judgment must have been a final judgment on the merits. Anderson v. LaVere, 895 So. 2d 828, 833 (¶10) (Miss. 2004). Under both Mississippi and Federal Rule of Civil Procedure 41(b), dismissal for failure to prosecute operates as a final judgment and dismissal is with prejudice. An exception is found in Mississippi Rule of Civil Procedure 41(d), which provides that where dismissal is made by the clerk following twelve months of docket inactivity, that dismissal is without prejudice. See Strickland v. Estate of Broome, 179 So. 3d 1088, 1094 (¶18) (Miss. 2015). But the case at hand does not fall under Rule 41(d), but rather falls under Rule 41(b). Prior to dismissal, the Griffins were put on notice by the district judge that the case would be dismissed for failure to prosecute if the litigation did not move forward in a meaningful way. The Griffins responded by shifting their legal position in order to avoid trying the merits of the case. The district court’s dismissal of the action was not only appropriate for failure to prosecute, but was also consistent with the Griffins’ new argument that the case should not be tried in court at all but rather arbitrated.
The court went on to address and reject some other issues raised by the Griffins.
Res judicata is all about identity of issues, facts, and parties. It matters not that the original, dismissed proceeding was in another state or federal court.
Res judicata requires a final judgment on the merits in the dismissed action, and the COA found here that the federal court’s dismissal order was a final judgment on the merits per R41(b), and not a dismissal per R41(d).
Shifting your legal position is a pretty effective way to frustrate your judge. My term for it is game-playing. Courts are for serious business, not for toying with others, delaying, pettifogging, and caviling. That’s the kind of conduct that will get your case thrown out of court. The Griffins’ lawyer was wise to withdraw before he became identified with their tactics and his own credibility with the court took a hit.
Police investigations and reports not infrequently play an evidentiary role in divorce and modification trials in chancery court.
A recent example is Heimert v. Heimert, handed down by the COA on November 13, 2012. In this case, Sheri and Walter Heimert had a history of physical altercations involving allegations of biting, strangling, hitting, and on and on, with the physical marks to show for it. The police were called multiple times to intervene, and two police reports, one from August, 2007, and the other from December, 2008, were offered into evidence. The December report showed that Sheri was charged with domestic violence. Her attorney objected that there was an inadequate foundation to admit it, but the chancellor let it in anyway, and Sheri complained on appeal that the report should not have been admitted.
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . (C) in civil actions and proceedings and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
¶17. The police report was taken after an investigation of domestic violence reported by Sheri. No assertion has been made that the document lacks trustworthiness. Sheri argues the police report was inadmissible because it was not authenticated. However, a document may be authenticated by the testimony of a witness with knowledge “that a matter is what it is claimed to be.” M.R.E. 901(b)(1). Sheri was a knowledgeable witness, and she submitted the police report as part of discovery. Sheri testified she was familiar with the document; thus, Sheri’s testimony was sufficient to show that the document was “what it [was] claimed to be” – the police report from December 5, 2008. See Cassibry v. Schlautman, 816 So. 2d 398, 403-04 (¶¶20-23) (Miss. Ct. App. 2001) (finding medical records submitted by plaintiff in discovery were authenticated by plaintiff’s own testimony).
¶18. Further, Sheri testified consistently with the information in the police report, and Walter testified consistently with his version of events in the police report. Thus, even if the police report was admitted into evidence erroneously, the admission was harmless, as it was cumulative. Id. at 404 (¶24) (holding admission of hearsay may be held harmless where corroborating evidence exists). Sheri complains she was prejudiced by the report because it only contained information provided by Walter. However, this is not the case. The report clearly contains information gathered from both Walter and Sheri.
¶19. Sheri was familiar with the police report, and she submitted it as part of discovery. Further, the contents of the police report were corroborated by the testimony. We find the police report was properly admitted into evidence. This issue is without merit.
In other words, Sheri was hoist with her own petard. She herself corroborated the facts in the report in her testimony, and she herself had sifted the poison pill into the recipe by providing it in discovery, thus weakening her arguments against authenticity and trustworthiness.
The easier you make it for the judge to rule in your favor, the more likely it is that she will. That’s a thought I have expressed here many times.
When it comes to equitable distribution, think about how it’s usually done. On day one at 9:46, you ask your client about the living room furniture: its value, age, condition, whether it’s marital or not. Then, at 10:18, you return to the assets after a foray into some HCIT testimony. Ten minutes is devoted to an IRA and the couple’s vehicles. Then some custody testimony. At 11:38, you start questioning about a PERS account. Lunch break. After lunch, more PERS followed by a venture into more HCIT. At 2:09, more testimony about the furniture. Then back to HCIT. Day two is pretty much the same. After everyone has rested, the judge then has to dig through notes to ferret out the evidence on assets so as to make a ruling on equitable distribution. Don’t be surprised if the judge misses something. Oh, and if you happen to interrupt her while she is working on that opinion, don’t be surprised if she is in a foul humor.
Before you go to trial, why not make an asset table? It should have six columns: (1) a number assigned serially to each item to facilitate questioning; (2) a description of the asset (e.g., “Red couch – Living room” or “Apache Industries 401(k) account no. AFP0875-401-CX” or “2015 blue Ford F-150 pickup”; (3) Designation as marital or non-marital; (4) fair market value; (5) Debt associated with the item; (6) Whether Husband (H) or Wife should receive the item. Some people use a spreadsheet to do this; others use a table in a word processing program. When you come up with a template for it, you can use it time and again.
Once you have had the asset list properly identified and introduced, you can question your client from the table. It eases the work of the chancellor considerably, and will go a long way toward giving the judge the impression that you know what you’re doing.
In this district, we require counsel for both parties to come up with a consolidated asset table. You can’t get a trial date in my court until you do, when equitable distribution or alimony is an issue. This requires the parties to agree to what the assets are, but they can disagree as to values, whether the asset is marital or not, and who should receive the item. The obvious virtue of this approach is that the judge does not have to figure out whether the wife’s testimony about the “green chair” was referring to the “chair in the living room” testified to by husband.
We have had few problems getting counsel to cooperate to come up with the list. When a client drag his feet, the judge’s suggestion that he will simply use the more diligent party’s list usually gets cooperation.
Don’t forget to provide your asset list in discovery if that information is requested. You don’t want to be stopped at trial by failure to provide it in discovery.
Remember, too, that although a client may give his or her opinion as to values, some values are best proven otherwise. A residence, for example, should have an appraisal, unless the parties agree to the value. The value of financial assets should reflect the most recent statements. If you want the judge’s ruling to be as accurate as possible, you should provide as accurate as possible information.
The asset table may be appended to an 8.05, or it may be referenced in the appropriate place in the financial statement.
This may seem like extra work, but you will be gratified at how much easier it makes your trial work, and how much clearer and effective your case for equitable distribution will be.
In 2015, Ronnie and Amy Ali were divorced in an acrimonious proceeding that featured over 200 docket entries. Amy was granted the divorce on HCIT, and was awarded custody, child support, equitable distribution, alimony, and attorney’s fees. To secure the financial award, the chancellor ordered Ronnie to maintain a $2 million life insurance policy. Ronnie appealed on several issues, including the life insurance.
¶22. The chancellor ordered Ronnie to maintain a life insurance policy valued at $2 million, with Amy to receive $1.5 million and the minor daughter to receive $500,000 in the event of Ronnie’s death. On appeal, Ronnie argues that the policy amounts required for Amy are excessive in light of the permissible purposes of such awards. We agree.
Periodic alimony is an obligation that “terminates automatically” upon the payor’s death and cannot be imposed upon the payor’s estate, absent an express agreement. Armstrong [v. Armstrong, 618 So. 2d 1278, 1281 (Miss. 1993)]; see In re Hodges, 807 So. 2d at 443 (¶19). While lump-sum alimony fully vests at the time of the divorce judgment, periodic alimony only vests on the date each payment becomes due. In re Hodges, 807 So. 2d at 442 (¶17). So when the payor dies, the only alimony obligations that survive—and the only obligations that may be insured—are unpaid lump-sum alimony and unpaid periodic-alimony payments that have already vested.
Recognizing the possibility that an alimony payor may fall behind in periodic-alimony payments and then die leaving those vested payments unsatisfied, this court has acknowledged the chancellor’s authority to require the alimony payor to maintain a life-insurance policy to protect the recipient spouse against such a contingency. [Johnson v. Pogue, 716 So. 2d 1123, 1134 (¶41) (Miss. Ct. App. 1998)]; see also Beezley v. Beezley, 917 So. 2d 803, 808 (¶17) (Miss. Ct. App. 2005). But in Pogue, this court found that requiring the payor to maintain a $75,000 life-insurance policy to protect against the potential failure to make $500-per-month alimony payments was “excessive.” Pogue, 716 So. 2d at 1134 (¶41).
¶24. Given the standard we have just recited, it is impossible to say that a life insurance policy of $1.5 million is necessary to guard against the potential failure to make $5,500 monthly alimony payments and to repay approximately $376,500 in marital debt. On remand, the chancery court should determine an appropriate award in light of the authorities we have just discussed.
I posted about Coggins at this link.
I think most attorneys have thought about life insurance as a replacement for future years of alimony that will not be paid in the event of the payer’s untimely death. Coggins, however, makes it clear that what is insured is any unpaid arrearage existing at the time of death, since periodic alimony payments cease at the death of the payer.
Does the same rule apply to child support? In the absence of an agreement to the contrary, the child support obligation ceases at the death of the payer, and the estate of the decedent is not liable for future support. It would appear, then, that child support would be subject to the same considerations as alimony.
One failing of most attorneys is to offer any proof of the cost of life insurance. I refuse to award it without some testimony of the projected cost.
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FOR PLAINTIFF-APPELLANT: Prince A.Z.K. Adekoya II, pro se, New York, New York.
FOR DEFENDANTS-APPELLEES: Brandon H. Cowart, Assistant United States Attorney (Sarah S. Normand, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York.
Prince A.Z.K. Adekoya II appeals pro se from an award of summary judgment in favor of defendants on this civil action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics 403 U.S. 388 (1971), for damages sustained to personal property as a result of flooding in a prison storeroom. Specifically, Adekoya challenges the district court's conclusions that (1) sovereign immunity barred his FTCA claim and (2) a failure to exhaust administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), precluded his Bivens claim. We assume the parties' familiarity with the underlying facts and the procedural history of the case, which we reference only as necessary to explain our decision to affirm.
Summary judgment is proper only if "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). We review an award of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party.See Miller v. Wolpoff Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). We also reviewde novo legal determinations such as the lack of subject matter jurisdiction, see Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000), and a failure to exhaust administrative remedies, see Johnson v. Rowley, 569 F.3d 40, 44 (2d Cir. 2009).
The FTCA effects a limited waiver of the federal government's sovereign immunity against civil actions for damages based on "loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). The waiver does not apply, however, to "[a]ny claim arising in respect of . . . the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer," except where property is "seized for the purpose of forfeiture" and additional requirements, not relevant here, are satisfied.Id. § 2680(c).
We agree with the district court that sovereign immunity barred Adekoya's claim under the FTCA both because Adekoya sought to recover based on damage to property during its detention by law enforcement officers, see Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 227-28 (2008) (construing § 2680(c) broadly to cover all law enforcement officers), and because his property was not seized for the purpose of forfeiture. We therefore affirm the grant of summary judgment on Adekoya's FTCA claim.
The PLRA's requirement that prison inmates exhaust administrative remedies prior to seeking relief in federal court, see 42 U.S.C. § 1997e(a), "applies to all inmate suits about prison life," Porter v. Nussle, 534 U.S. 516, 532 (2002). Failure to exhaust may be excused only where (1) administrative remedies were not in fact available; (2) prison officials have forfeited, or are estopped from raising, the affirmative defense of non-exhaustion; or (3) "special circumstances . . . justify the prisoner's failure to comply with administrative procedural requirements."Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004) (internal quotation marks omitted).
Even if we were to conclude, which we do not, that one of the three Hemphill requirements was satisfied by prison officials' reasonable recommendation, offered prior to the Supreme Court's decision in Ali, that Adekoya file an administrative tort claim, we would affirm the grant of summary judgment. Adekoya's complaint states that damage to his property resulted from "the negligence of the defendants that knowingly and intentionally fail[ed] to repair, secure, or protect the storage room against flood." To the extent Adekoya alleges negligence, he fails to state a Fifth Amendment due process claim, see Daniels v. Williams, 474 U.S. 327, 328 (1986), and his bare allegation of intentional misconduct is insufficient to permit him to avoid summary judgment, see Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002).
Although Adekoya's brief in opposition to summary judgment also invokes the Fourth and Eighth Amendments, he has alleged no injury cognizable under either provision. See Hudson v. Palmer, 468 U.S. 517, 525-26 (1984); Trammell v. Keane, 338 F.3d 155, 161 (2d Cir. 2003).


(1) Enjoin any further dissemination of the letter to current employees with the class-waiver form; (2) Enjoin any effort by the respondent-employer or its counsel to chill participation in the case, including prohibiting any further unauthorized communication with any class members concerning joining the case, except as approved by the arbitrator; (3) Enjoin retaliation by [Waterstone] against any individual participating in the case; (4) Direct that [Waterstone] (in a form and manner supervised by the Arbitrator or on consent of claimants’ counsel) promptly notify all class members who received Exhibits A and B of the impropriety of [Waterstone’s] acts and the invalidity of the waivers it solicited; (5) Sanction [Waterstone] with monetary relief for its improper behavior [ ] so that [Waterstone] does not achieve any of the benefit of chilling individuals from participating in this case; (6) Reserve the opportunity for individuals to join the case post-judgment, should they opt-out now, given their employer’s clear statement of its desire that they not join this case; (7) Award Claimant’s costs and attorneys’ fees for the time spent on the motion; [and] (8) Award such further relief in the future, as may become necessary to remedy the ill effects of [Waterstone’s] improper behavior.
In opposition, the respondent-employer argued that the motion should be denied because: (1) the arbitrator lacked jurisdiction over the issue presented, because the parties had not agreed to arbitrate the issue of the permissibility of the subsequent class-waivers; (2) it was procedurally improper, because a class or collective action had yet to be certified; and (3) the employees had not demonstrated the requisite irreparable harm to warrant the relief sought.
It is true that a class has not yet been certified. Indeed, the clause-construction award that contemplates a class arbitration may itself be vacated by the District Court. However, even if the motion to certify a class should be denied, or if the Court should vacate the clause-construction award, the arbitration may continue as a collective proceeding (opt in) as a result of Judge Crabb’s direction that Herrington “must be allowed to join other employees to her case.” (D. Ct. Decn. at 18).
Whether a proceeding continues as a class procedure or a collective procedure, it must be protected from coercive or misleading communications that are designed to, or have the effect of, persuading or intimidating potential claimants to withhold their participations. The law realistically recognizes that such improper communications may be just as effective pre-certification as post-certification. Therefore, it is within the jurisdiction – indeed, it is the duty – of the judge or arbitrator before whom such a proceeding is pending to protect the integrity of the proceeding and to require that all information conveyed by the parties to potential class members about the proceeding be accurate, not coercive, and not misleading.
Waterstone’s argument that control over communications cannot arise until a class is certified is simply wrong. The power (jurisdiction) to control the parties’ communications to class members or putative class members can arise at least as early as when the initial pleading is filed. See, e.g. Hoffman-LaRoche at 487 (“[I]t lies within the discretion of a district court to begin its involvement early at the point of the initial notice.”).
Waterstone’s contention that it has “has never consented to arbitrate its management decisions as to the nature and form of employment agreements with employees who are not parties to this case” (Jurisd. Memo at 1) assumes that this arbitration is about what kind of dispute resolution provision going forward Waterstone may provide in its form employment agreement. The assumption is false. Herrington brought this arbitration to recover past minimum wages and overtime compensation allegedly due to her and to her fellow employees. Jurisdiction over that claim was established with the filing of the demand for arbitration, and it is the duty of the arbitrator to preserve and protect the integrity of the proceedings with respect to that claim. The entire dispute that is subject to this arbitration is therefore to be resolved under the dispute resolution provisions of the pre-Amendment employment agreement that governs Herrington’s claims.
However, whatever may be the legality or enforceability of either Option A or Option B in future disputes that might arise between Waterstone and its mortgage-loan employees, those amendments can have no impact on this Herrington arbitration or on the employee class’s rights or choices in it. Once Herrington commenced her arbitration under the original arbitration clause in the employment agreement, Waterstone could not change the nature or course of this pending arbitration by requiring the putative claimants in this proceeding to agree to an entirely different dispute-resolution regime. This arbitration must, therefore, continue under the Agreement that governed when it was commenced, the Agreement that Waterstone, itself, argued successfully to the District Court requires Herrington’s dispute to be arbitrated.
Thus, the arbitrator granted the claimant-employees’ their requested relief.
Click Herrington v. Waterstone Mortgage Corp. to read the entire Decision and Order on Claimant’s Application for Protective Order, Temporary Restraining Order and Preliminary Injunction.
Nash v. CVS Caremark Corp.
Plaintiff pled this lawsuit for overtime benefits as a “collective action” under the Fair Labor Standards Act (“FLSA”). That is, he purported to act on behalf of himself and “other employees similarly situated” pursuant to 29 U.S.C. § 216(b). After one supposedly “similarly situated” party opted in to the case, Defendants presented both that person and Plaintiff with offers of judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure. The opt-in party previously accepted the offer and was no longer part of the case; Plaintiff rejected the offer, but did not dispute that it was adequate to cover his damages. Defendants then moved to dismiss the suit on grounds that the Rule 68 offer mooted Plaintiff’s claim. However, since that time, other parties opted into the action and seeking to have their claims resolved as part of a “collective action” with Plaintiff. Denying, Defendants’ Motion to Dismiss on mootness grounds, the Court discussed the remedial purposes of the FLSA’s collective action mechanisms.
“The Court agrees with Judge Almond that Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir.2001), in which the First Circuit approved the dismissal of a Rule 23 action as moot, is distinguishable. Cruz emphasized that between the date the plaintiffs in that case received “complete relief,” and the date the district court dismissed the case as moot, “no new plaintiffs tried to intervene, and the named plaintiffs made no effort to amend their complaint to add new parties.” Cruz, 252 F.3d at 533. That is not so here. Four additional parties have, in fact, “tried to intervene” as “similarly situated” plaintiffs by submitting their consents for the Plaintiff to pursue claims on their behalf.
As Judge Almond noted, where even one similarly-situated plaintiff opts in to an FLSA suit after the rejection of a Rule 68 offer, courts “have refused to permit defendants to moot putative FLSA collective actions.” Yeboah v. Central Parking Sys., No. 06 CV 0128(RJD)(JMA), 2007 WL 3232509, at *3 (E.D.N.Y. Nov. 1, 2007); see Reyes v. Carnival Corp., No. 04-21861-CIV., 2005 WL 4891058, at *2 (S.D.Fla. May 25, 2005) (refusing to dismiss FLSA action where “other plaintiffs. opted in to [the] suit [after] the offer of judgment was made”); Roble v. Celestica Corp., 627 F.Supp.2d 1008, 1013-14 (D.Minn.2007) (finding that identifying opt-ins sustained jurisdiction); Rubery v. Buth-Na-Bodhaige, Inc., 494 F.Supp.2d 178, 179-80 (W.D.N.Y.2007) (denying motion to dismiss where more than fifty people had filed consents to join FLSA action). This is true even if, as here, there is no dispute about the adequacy of the offer. See Yeboah, 2007 WL 3232509, at *5 (explaining that even if the plaintiff could not dispute the sufficiency of the judgment, “it neither mooted plaintiff’s FLSA claim nor deprived [the court] of subject matter jurisdiction,” because of the “presence of opt-ins.”).
Defendants contend that the opt-ins cannot be considered “plaintiffs” or “parties” to the suit for purposes of any exception to mootness carved out by Cruz. See Cruz, 252 F.3d at 533. Cruz stressed that there had been no “decision on class certification” under Rule 23, appearing to require a formal grant of class status in order to preserve a controversy after named parties obtain full relief. Here, the case has not yet reached the equivalent stage in the § 216(b) context: “preliminary collective action certification,” which requires an initial demonstration that the plaintiff “is ‘similarly situated’ to the other members of the proposed class.” Poreda v. Boise Cascade, L.L.C., 532 F.Supp.2d 234, 238 (D.Mass.2008). In the absence of preliminary certification, Defendants argue, Plaintiff has no procedural right to act on behalf of purported “similarly situated” parties. “[A] § 216(b) plaintiff … presents only a claim on the merits …. [and][i]n contrast to the Rule 23 plaintiff, a § 216(b) plaintiff has no claim that he is entitled to represent other plaintiffs.” Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1249 (11th Cir.2003).
In other words, Defendants insist, without the only safe harbor arguably warranted by Cruz-collective action status-this lawsuit died the moment that Plaintiff rejected his Rule 68 offer. At that time, there were no other opt-ins with live claims, and plaintiff had no right to stand in for anyone else. Later opt-ins could not resurrect the action once it expired.
This logic has some superficial appeal. But its limitation is that, if true, employers could always “use Rule 68 as a sword … and avoid[ ] ever having to face a collective action.” Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 919 (5th Cir.2008). Congress clearly did not intend such an “anomaly” in enacting § 216(b). See id. Neither does Cruz, which concerns Rule 23, require the result Defendants urge here, which would effectively thwart Congress’ preference to “avoid multiple lawsuits where numerous employees” allege FLSA violations. Prickett v. DeKalb County, 349 F.3d 1294, 1297 (11th Cir.2003).
The Court recognizes that Cruz may create some tension with the underlying rationale for decisions allowing § 216(b) opt-ins to preserve jurisdiction. As explained by the Fifth Circuit in Sandoz, at bottom those cases rest on what is known as the “relation back” doctrine. See Sandoz, 553 F.3d at 921;see, e.g., Yeboah, 2007 WL 3232509, at *3 (citing Weiss v. Regal Collections, 385 F.3d 337, (3d Cir.2004), a Rule 23 case dealing with the “relation back” doctrine). Sandoz acknowledged the quandary raised by Cameron-Grant: a named FLSA plaintiff “cannot represent any other employees until they affirmatively opt in to the collective action.” Sandoz, 553 F.3d at 919 (citing Cameron-Grant, 347 F.3d at 1249.). “If our analysis stopped there,” the court reasoned, “[the plaintiff’s] case would be moot,” because she had received an adequate offer of judgment before any opt-ins joined the case. Id. Nevertheless, the court cited Sosna v. Iowa, 419 U.S. 393 (1975), as providing a solution. There, the Supreme Court observed that a Rule 23 controversy might become moot “before the district court can reasonably be expected to rule on a certification motion.” Id. at 402 n. 11. Depending on the circumstances, in such instances class certification might “be said to ‘relate back’ to the filing of the complaint,” which would preserve jurisdiction. Id. at 402 n. 11.Sandoz found that the “relation back” doctrine was just as appropriate for § 216(b) as Rule 23, because both types of actions were vulnerable to strategic mooting by Defendants. Accordingly, “there must be some time for a[n FLSA] plaintiff to move to certify a collective action before a defendant can moot the claim through an offer of judgment.” Sandoz, 553 F.3d at 921.
“As discussed, and as Judge Almond noted, granting dismissal in these circumstances would impair the Congressional preference for collective actions embodied in 216(b). The Court offers some additional comments on this topic below. But there is also a second policy consideration that favors affirming the R & R. Specifically, the present motion underscores the unique danger of tactical manipulation in FLSA cases. Thus, as explained below, to the extent Cruz could be read to establish a broad mootness regime that reaches beyond the Rule 23 context, an exception for FLSA actions is warranted.
[The] defense strategy creates a virtually unwinnable situation for plaintiffs in collective or class action lawsuits. Defendant makes an offer of “judgment” to Plaintiff, then alleges that the action is moot. Plaintiff therefore must either pursue discovery very early in the case, when a court likely will deem it premature, or seek class certification and/or notice before discovery, which runs the risk of harming the interest of those as-yet undiscovered class members. Reed v. TJX Cos., NO. 04 C 1247, 2004 WL 2415055, at *3 (N.D.Ill. Oct. 27, 2004). The FLSA enforcement scheme clearly does not envision such a minefield. Section 216(b) does not require plaintiffs to petition for provisional certification of a “collective action” when filing a complaint. In fact, the final ruling on whether the named plaintiff may maintain a “collective action” usually occurs “after discovery is complete.” Poreda, 532 F.Supp.2d at 239. The collective action process “should be able to ‘play out’ according to the directives” of § 216(b) and the cases applying it, to permit “due deliberation by the parties and the court” on collective action certification. See Weiss, 385 F.3d at 347-48 (discussing the Rule 23 process).
The moot-and-dismiss tactic also facilitates forum-shopping and plaintiff-shopping. At oral argument, Defendants confirmed that multiple lawsuits regarding the overtime claims asserted here are pending in different jurisdictions around the country. Permitting use of Rule 68 to moot cases in one or more forums and thereby cherry-pick another, potentially with the weakest collective action representative, upends the longstanding principle that, in cases based on federal-question jurisdiction, the plaintiff is the “master of the claim.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).
Defendants might object that Rule 23 actions present the same worries. After all, Rule 23 advances a policy similar to § 216(b): the efficient resolution of widespread small claims dependent on common legal and factual questions. Arguably, the opt-out structure of Rule 23 embodies an even firmer commitment to aggregating claims, in contrast to the opt-in rule for § 216(b) cases. And if this is true, how can the cited policies provide any basis to distinguish Cruz, where the same concerns were not enough to stave off dismissal of a Rule 23 action? In that case, the plaintiffs alleged, there was a large pool of class members, and the defendant had defused class action litigation by mooting the claims of the named parties. See Cruz, 252 F.3d at 535.
The answer to the question above is that FLSA actions are more vulnerable to manipulation than Rule 23 actions. For the latter, filing a complaint tolls the statute of limitations for all alleged class members, whether they know of the lawsuit or not. See Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350 (1983) (“The filing of a class action tolls the statute of limitations as to all asserted members of the class ….”). In contrast, parties alleged to be “similarly situated” in a § 216(b) case must affirmatively opt in to toll the limitations period. See29 U.S.C. § 256 (explaining that an FLSA action is not considered to be commenced for a similarly situated party until he submits written consent to join the case); Bonilla v. Las Vegas Cigar Co., 61 F.Supp.2d 1129, 1136-37 (D.Nev.1999) ( “[A]ll potential plaintiffs to § 216(b) actions must file their consent to the suit to toll the statute of limitations.”) (emphasis in original).
This means that defendants can bleed value out of a large pool of outstanding FLSA claims in a way they cannot with a comparable group of Rule 23 claims. “Picking off” § 216(b) plaintiffs delays the point at which any collective action can be provisionally certified. This stalls notification to potential “ similarly situated” parties. O’Donnell v. Robert Half Int’l, Inc., 534 F.Supp.2d 173, 177 (D.Mass.2008) (“A class may be conditionally certified and notified of the pendency of an action only if the putative class members are “similarly situated” with the named plaintiffs.”) The longer it takes for an FLSA class to mature, the lower members’ damages will be once they opt in, given the two-year limitations period. See29 U.S.C. § 255 (2010). In a parallel situation under Rule 23, the clock for absentees stops upon the filing of a complaint that raises their claims. Thus, even if employers pick off some named plaintiffs, the limitations period for absentees pauses while any applicable class action is pending.
[I]f [Defendants were] successful in dismissing the case as mooted, the four plaintiffs who opted in … would arguably have to either initiate new individual FLSA actions or join another applicable collective action. Thus, the tolling of the limitations period for their claims could be delayed and, if they were ultimately successful, their back pay damages could be reduced since the value of their claims is potentially diminished with each passing day. (R & R at 4-5.) The point is that FLSA opt-ins are more exposed to the erosion and possible expiration of their claims than Rule 23 absentees.
Thus, the Court denied Defendants’ Motion to Dismiss.
The case was before the Court on Defendant’s interlocutory appeal, challenging the reasoning of the lower Court in granting class certification on Plaintiff’s California state law claims. The dispute centered around whether the lower court abused its discretion in finding that the predominance requirement of Federal Rule of Civil Procedure 23(b)(3) was satisfied, based-in large part-on an employer’s internal policy of treating its employees as exempt from overtime laws. The Ninth Circuit, remanded for further factual findings, holding that while such uniform exemption policies are relevant to the Rule 23(b)(3) analysis, it is an abuse of discretion to rely on such policies to the near exclusion of other relevant factors touching on predominance.
Analyzing the issue, the Court stated, “[u]nder Rule 23(b)(3), a class may be certified where “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”Fed.R.Civ.P. 23(b)(3). The predominance inquiry of Rule 23(b)(3) asks “whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Local Joint Executive Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1162 (9th Cir.2001) (citation and internal quotation marks omitted). The focus is on “the relationship between the common and individual issues.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir.1998).
The question here is whether the district court abused its discretion in finding Rule 23(b)(3)‘s predominance requirement was met based on Wells Fargo’s internal policy of treating all HMCs as exempt from state and federal overtime laws. To succeed under the abuse of discretion standard, Wells Fargo must demonstrate that the district court either (a) should not have relied on its exemption policy at all or (b) made a clear error of judgment in placing too much weight on that single factor vis-a-vis the individual issues.
The first line of attack, that Wells Fargo’s exemption policy was an impermissible factor, is a non-starter. An internal policy that treats all employees alike for exemption purposes suggests that the employer believes some degree of homogeneity exists among the employees. This undercuts later arguments that the employees are too diverse for uniform treatment. Therefore, an exemption policy is a permissible factor for consideration under Rule 23(b)(3).
Wells Fargo’s arguments are better construed as a challenge to the weight accorded to the internal exemption policies under the third abuse of discretion prong: mulling the proper factors but committing clear error in weighing them. To analyze this question, we first ask how much weight the district court gave to the exemption policy. Plaintiffs suggest the weight was minimal; Wells Fargo claims that the district court’s reliance was tantamount to estoppel.
A review of the California certification order lends substantial credence to Wells Fargo’s position. Although the court’s analysis of each exemption was careful and considered, its ultimate decision was clearly driven by Wells Fargo’s uniform exemption policy. Indeed, the court found “serious issues regarding individual variations among HMC job duties and experiences” but nevertheless concluded that common questions predominated because “it is manifestly disingenuous for a company to treat a class of employees as a homogenous group for the purposes of internal policies and compensation, and then assert that the same group is too diverse for class treatment in overtime litigation.”E.R. 17. As such, we must conclude that the district court’s reliance on Wells Fargo’s internal exemption policy was substantial.
This leads to the central question: whether such heavy reliance constituted a clear error of judgment in assaying the predominance factors. District courts within this circuit have split on the relevance of exemption policies. The district court relied primarily on Wang v. Chinese Daily News, Inc., 231 F.R.D. 602, 612-13 (C.D.Cal.2005), which found predominance of common issues based on an employer’s policy of treating all employees in a certain position as uniformly exempt from overtime compensation requirements. In contrast, another district court has expressed doubt about Wang, and found that uniform exemption policies are merely a minor factor in the predominance analysis. See Campbell v. PricewaterhouseCoopers, LLP, 253 F.R.D. 586, 603-04 (E.D.Cal.2008) (rejecting “estoppel” position of Wang ).
In determining which rule is appropriate, we begin by examining Rule 23 itself. A principal purpose behind Rule 23 class actions is to promote “efficiency and economy of litigation.” Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 553 (1974). In particular, Rule 23(b)(3)‘s predominance and superiority requirements were added “to cover cases’in which a class action would achieve economies of time, effort, and expense, and promote … uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.'” Anchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997) (quoting Fed.R.Civ.P. 23(b)(3) Adv. Comm. Notes to 1966 Amendment). Thus, the ” ‘notion that the adjudication of common issues will help achieve judicial economy’ ” is an integral part of the predominance test. Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1189 (9th Cir.2001) (quoting Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996)). Whether judicial economy will be served in a particular case turns on close scrutiny of “the relationship between the common and individual issues.” Hanlon, 150 F.3d at 1022.
Viewed in light of these principles, the rule espoused in Wang has little justification. Wang essentially creates a presumption that class certification is proper when an employer’s internal exemption policies are applied uniformly to the employees. Such an approach, however, disregards the existence of other potential individual issues that may make class treatment difficult if not impossible. Indeed, this case is a prime example, as the district court identified “serious issues regarding individual variations” that were not susceptible to common proof, but nevertheless felt compelled to certify the class.
Of course, uniform corporate policies will often bear heavily on questions of predominance and superiority. Indeed, courts have long found that comprehensive uniform policies detailing the job duties and responsibilities of employees carry great weight for certification purposes. Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 160 (S.D.N.Y.2008) (“Where … there is evidence that the duties of the job are largely defined by comprehensive corporate procedures and policies, district courts have routinely certified classes of employees challenging their classification as exempt, despite arguments about ‘individualized’ differences in job responsibilities.”). Such centralized rules, to the extent they reflect the realities of the workplace, suggest a uniformity among employees that is susceptible to common proof.
But Wells Fargo’s blanket application of exemption status, whether right or wrong, is not such a rule. In contrast to centralized work policies, the blanket exemption policy does nothing to facilitate common proof on the otherwise individualized issues.
To illustrate, consider the federal outside salesperson exemption. This exemption applies where, among other things, the employee is “customarily and regularly away from the employer’s place of … business….”29 C.F.R. § 541.500(a). Often, this exemption will militate against certification because, as the district court noted, it requires “a fact-intensive inquiry into each potential plaintiff’s employment situation….” E.R. 11. A centralized policy requiring employees to be at their desks for 80% of their workday would change this individual issue into a common one. Therefore, such a corporate policy would be highly relevant to the predominance analysis. A uniform exemption policy, however, has no such transformative power. Whether such a policy is in place or not, courts must still ask where the individual employees actually spent their time. As one court succinctly explained, “[t]he fact that an employer classifies all or most of a particular class of employees as exempt does not eliminate the need to make a factual determination as to whether class members are actually performing similar duties.” Campbell, 253 F.R.D. at 603.
Perry v. Freedom Mortg. Corp.
This case was before the Court on Defendant’s motion to dismiss or strike count II of Plaintiffs Complaint, which alleged overtime law violations pursuant to the New Jersey Wage Law (“NJWL”). The Court denied Defendant’s motion, explaining that it was premature at the pleading stage. This case is of note, because there is conflict of authority within the 3rd Circuit, as to whether Rule 23 “opt-out” classes and 216(b) “opt-in” classes can ever be brought together, or whether the Court should necessary deny its inherent supplemental authority necessarily in such cases.
“The underlying Complaint in this case is a putative class claim, filed by Plaintiff, contending that Freedom violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. and the New Jersey’s Wage Law (“NJWL”), N.J.S.A. 34:11-56a et seq. by improperly classifying mortgage loan officers to prevent them from receiving overtime pay for work in excess of 40 hours a week. In its motion to dismiss Plaintiff’s NJWL claim, Freedom argues that Plaintiff’s FLSA and NJWL claims are legally incompatible. This Court concurs with and adopts Judge Linares’ reasoning in Freeman v. Hoffman-Laroche, Inc. No. 07-1503, 2007 U.S. Dist. LEXIS 92589, at * 70*10 (N.J.D. Dec. 18, 2007), determining that dismissal of a cause of action under NJWL solely for “inherent incompatibility” with FLSA is not appropriate.


text:
Whether a district court injunction that required petitioner to obtain a permit before harvesting timber on its property constituted a taking under the Fifth Amendment.
The opinion of the court of appeals (Pet. Supp. App. sa1-sa30) is reported at 296 F.3d 1339. The opinion of the Court of Federal Claims (Pet. App. 2a-11a) is unreported.
The judgment of the court of appeals was entered on July 19, 2002. A petition for rehearing was denied on September 3, 2002 (Pet. App. 1a). The petition for a writ of certiorari was filed on November 27, 2002. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
1.	The Endangered Species Act of 1973 (ESA), 16 U.S.C. 1531 et seq., mandates protection and conservation measures for species of fish or wildlife determined to be endangered or threatened. Administration of the ESA is divided between the Secretaries of the Interior (through the Fish and Wildlife Service (FWS)) and of Commerce (through the National Marine Fisheries Service), depending upon the species involved. See 16 U.S.C. 1532(15); 50 C.F.R. 402.01(b).
The ESA authorizes the appropriate Secretary to list a domestic or foreign species as endangered or threatened. 16 U.S.C. 1533(a).1 Section 9(a)(1)(B) of the Act, 16 U.S.C. 1538(a)(1)(B), provides that it is generally unlawful to "take" any endangered species within the United States. The ESA defines the term "take" to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. 1532(19). The term "harm" is defined by Interior Department regulations to include "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. 17.3; see 50 C.F.R. 222.102 (Commerce Department definition of "harm"); Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687 (1995) (upholding Interior Department regulation defining "harm" for purposes of "take" prohibition). For species under her jurisdiction, the Secretary of the Interior has generally extended Section 9's take prohibition to cover threatened as well as endangered species. 50 C.F.R. 17.31(a). The ESA establishes both civil and criminal penalties for violations of Section 9 and implementing regulations. 16 U.S.C. 1540.
Under Section 10(a)(1)(B) of the ESA, the Secretary may permit the "take" of a listed species "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. 1539(a)(1)(B). The applicant for an Incidental Take Permit (ITP) under Section 10 must submit a conservation plan describing the impact of the take, steps the applicant will take to minimize and mitigate those impacts, and alternatives the applicant has considered. 16 U.S.C. 1539(a)(2)(A); 50 C.F.R. 17.22(b)(1), 222.307(b)(5). Upon receipt of a complete application, the Secretary publishes notice of the application in the Federal Register. 50 C.F.R. 17.22, 222.303(b). The Secretary may issue an ITP if she finds that the taking will be incidental and "will not appreciably reduce the likelihood of the survival and recovery of the species in the wild," and that the applicant will minimize and mitigate the impacts on the species "to the maximum extent practicable" and will implement any other terms and conditions the Secretary deems necessary and appropriate. 16 U.S.C. 1539(a)(2)(B); 50 C.F.R. 17.22(b)(2), 222.307(c)(2). The take of any listed species in compliance with the terms of an ITP does not violate Section 9 of the ESA. See 16 U.S.C. 1538(a)(1).
2.	Petitioner Boise Cascade Corporation owns a tract of timberland of approximately 65 acres, known as the Walker Creek Unit, located in Clatsop County, Oregon. Pet. 5; C.A. App. 14.2 A pair of northern spotted owls, a federally listed threatened species, nested on the site from 1990 to 1996. C.A. App. 14. In order to protect the spotted owl nesting site, the Oregon Department of Forestry prohibited logging in an area that included the Walker Creek Unit. Ibid.
In October 1997, the State of Oregon notified petitioner that because the owls had not occupied the nesting site during the 1997 nesting season-the female owl had died and the male owl had moved to a nesting site outside the Walker Creek Unit-the State considered the owls to have abandoned the site. C.A. App. 14, 196. Petitioner then submitted a plan to harvest the timber on the Walker Creek Unit. Id. at 14-15. The State approved the plan but advised petitioner that it should consult with the FWS before it commenced logging operations. Id. at 15.
After inspecting the site, the FWS informed petitioner that the Walker Creek Unit "contain[ed] nesting habitat as well as foraging or dispersal habitat for spotted owls" and that logging would "create a risk of harm to the northern spotted owls which would use this site." C.A. App. 15, 211. The FWS suggested that if petitioner "desire[d] certainty in this matter," it could file an application for an ITP or pursue a land exchange with the State. Id. at 211. Instead of applying for an ITP, petitioner filed suit against the FWS in federal district court, seeking a declaration that logging on the Walker Creek Unit would not "take" spotted owls within the meaning of the ESA, and an injunction prohibiting the FWS from taking any action to prevent the logging. Pet. App. 19a-24a. The United States filed a counterclaim to enjoin petitioner from logging on the Walker Creek Unit without an ITP. C.A. App. 15.
During the 1998 nesting season, a subadult spotted owl was found to have been in the area of the Walker Creek Unit. C.A. App. 134. On October 15, 1998, the district court permanently enjoined petitioner from "taking any northern spotted owls by the logging of any further timber in its Walker Creek Unit without a permit issued pursuant to Section 10 of the ESA." Pet. App. 36a. Petitioner again did not appeal.
On November 6, 1998, petitioner submitted an application for an ITP under Section 10 of the ESA. C.A. App. 16, 134. On December 10, 1998, while the FWS was evaluating the completeness of the ITP application, petitioner filed a mandamus action to require the FWS to publish notice of the application in the Federal Register. Id. at 132-135. On December 23, 1998, the FWS published notice of that application. Id. at 16. On February 5, 1999, the district court ordered the FWS to act on petitioner's permit application by September 1, 1999. Id. at 16-17, 157.
By letters dated July 30, 1999, the FWS notified petitioner that it no longer needed an ITP to conduct logging on the Walker Creek Unit tract. C.A. App. 159, 212. The subadult spotted owl that had previously been detected in the vicinity of the Walker Creek Unit was found dead on May 17, 1999, and subsequent surveys detected no spotted owls. Id. at 212. Accordingly, the FWS concluded that "no spotted owls would be taken by [petitioner's] planned harvest of the property" and that a permit was therefore no longer required. Id. at 159, 212. On August 17, 1999, the district court dissolved the injunction that it had previously entered against logging without a permit on the Walker Creek unit. Id. at 17.
3.	On October 6, 1999, petitioner filed the instant suit in the Court of Federal Claims (CFC), seeking "just compensation for the temporary taking of merchantable timber, which it was prevented from logging as the result of an injunction obtained by the government." C.A. App. 13. Petitioner's complaint set forth four claims. First, the complaint alleged that the district court injunction had imposed a temporary servitude upon petitioner's property by "requiring [petitioner's] merchantable timber to be left standing so it could be occupied as a northern spotted owl nesting site," and by "requir[ing] [petitioner] to allow government personnel to come onto [petitioner's] property for the purpose of determining if northern spotted owls were present." Id. at 17. Petitioner alleged that the injunction thereby effected a per se taking under this Court's decision in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), and it sought just compensation in the amount of $295,012. C.A. App. 17. Second, the complaint alleged that by temporarily depriving petitioner of all economically productive use of its timber, the injunction constituted a per se taking under Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). C.A. App. 17-18. Third, the complaint alleged that "[p]rotecting habitat where there are no identifiable owls present to be harmed and where that habitat has not been designated critical to the survival of the species, does not advance a legitimate governmental interest under the ESA," and that the injunction therefore constituted a taking under Agins v. City of Tiburon, 447 U.S. 255 (1980). C.A. App. 19. Fourth, the complaint alleged that petitioner had a reasonable investment-backed expectation that it would be able to harvest the timber on the Walker Creek Unit and that, by prohibiting logging, the injunction worked a temporary taking under Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). C.A. App. 20.
The CFC granted the government's motion to dismiss the complaint. Pet. App. 2a-11a. The court invoked the "settled principle in takings law that a regulatory process that requires a property owner to obtain a permit before proceeding with a particular use of his or her property does not, in itself, effect a taking of the property." Id. at 8a. Rather, the court explained, "[o]nly when a permit is denied and the effect of the denial is to prevent economically viable use of the land in question can it be said that a taking has occurred." Ibid. (quoting United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 127 (1985) (internal quotation marks omitted)). The court concluded that "the permit process was an obligatory component of the Endangered Species Act on which no claim of taking may be based. A permit process that only temporarily curtails the use of private property cannot fairly be characterized as the appropriation of private property to public use." Id. at 10a-11a. The CFC also rejected petitioner's contention that the district court injunction had effected a "physical taking" by requiring petitioner to admit government personnel to the land and by forbidding petitioner to oust the northern spotted owl. Id. at 11a. The court explained that those "incidents of the permitting process * * * were transitory in character, involved no continuous governmental presence at the site and imposed no additional burdens on the property beyond the temporary curtailment of logging inherent in the permitting process itself." Ibid.
4.	The court of appeals affirmed. Pet. Supp. App. sa1-sa30.
a.	The court of appeals held that petitioner's regulatory takings claims lacked merit because the effect of the district court's injunction was simply that no logging on the Walker Creek Unit tract could take place without a permit. Pet. Supp. App. sa9-sa21. The court explained that, under the precedents of this Court and the Federal Circuit, "the imposition of such a requirement, without more, simply cannot give rise to a compensable taking." Id. at sa16. The court relied on the "longstanding rule" that, unless and until a permit application is actually denied, "only extraordinary delays in the permitting process ripen into a compensable taking." Id. at sa20. Because petitioner had made "no claim of delay in the permitting process," the court of appeals "affirm[ed] the [CFC's] dismissal of the regulatory takings claims." Id. at sa21.
b.	Petitioner also contended that "the district court's injunction worked a per se taking under [this] Court's decision in Loretto because (1) [petitioner] was prevented from excluding spotted owls from its property; and (2) [petitioner] was required to allow government agents to enter its property to conduct owl surveys." Pet. Supp. App. sa21. The court of appeals rejected that claim. Id. at sa21-sa29. The court observed that "[t]he holding of Loretto is quite narrow" and "applies only to permanent physical occupations either by the government or by a third party acting under government authority." Id. at sa22.
With respect to "the alleged taking of an 'owl easement' across [petitioner's] property," the court stated that the district court injunction did not deprive petitioner of any pre-existing right to exclude the birds because "[t]he ESA itself precludes [petitioner] from harassing, harming, pursuing, wounding, or killing spotted owls. [Petitioner] lost whatever right it had to 'exclude' the owls nesting on its land when they were listed as a threatened species under the ESA." Pet. Supp. App. sa23 (citations omitted). The court also observed that the temporary ban on logging could not properly be characterized as a "forced government intrusion" upon petitioner's land because "[t]he government has no control over where the spotted owls nest, and it did not force the owls to occupy [petitioner's] land. The government simply imposed a temporary restriction on [petitioner's] exploitation of certain natural resources located on its land unless [petitioner] obtained a permit." Id. at sa25.
The court of appeals similarly rejected petitioner's claim of "a per se taking based on the requirement that it allow government officials to enter its land to conduct owl surveys." Pet. Supp. App. sa25. The court observed that "[t]ransient, nonexclusive entries by the [FWS] to conduct owl surveys do not permanently usurp [petitioner's] exclusive right to possess, use, and dispose of its property." Id. at sa26. It concluded that "the extremely limited and transient nature of the intrusion in this case, coupled with its purpose, which was to discover information necessary to the adjudication of a case that [petitioner] itself initiated, preclude a finding that a taking occurred as a matter of law." Id. at sa29.
Petitioner contends that it suffered a physical occupation of its property, and thus a per se taking under this Court's decision in Loretto, on the theory that "the FWS both claimed the right to use Petitioner's property for a spotted owl nesting habitat, and prevented Petitioner from engaging in any action to exclude the owls from its property." Pet. 11. Petitioner also suggests (see Pet. 10, 19, 22) that the district court effected a physical taking by authorizing FWS personnel to enter the Walker Creek Unit.4 Petitioner's claims lack merit and do not warrant this Court's review.
474 U.S. at 127. In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 122 S. Ct. 1465, 1485 (2002), this Court reaffirmed that the normal delays associated with land-use permitting processes should not be treated as per se takings.
In the present case, neither the ESA itself nor the district court injunction foreclosed the possibility that timber could be harvested on petitioner's land. The Act makes clear that land-use activities may proceed, even when their incidental effect is to "take" members of an endangered species, so long as the landowner has obtained an ITP. The district court required the FWS to rule on petitioner's ITP application by a date certain, and the FWS determined before that date that an ITP was unnecessary, leaving petitioner free to harvest the timber on its land. That determination was made less than nine months after petitioner submitted its ITP application. Petitioner has made "no claim of delay in the permitting process," Pet. Supp. App. sa21, nor has it attempted in this Court to demonstrate a taking under the multi-factor analysis of Penn Central. This Court's decisions in Riverside Bayview and Tahoe-Sierra therefore foreclose petitioner's takings claim.
2.	In Loretto, this Court held that a "permanent physical occupation" of real property constitutes a per se Fifth Amendment taking. 458 U.S. at 426-435. The Court applied that rule to a state-law requirement that the owner of an apartment building permit the installation of cable television equipment on the building's roof. Id. at 438-440. The Court has also held that a "permanent physical occupation" of real property occurs when members of the public "are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed." Nollan v. California Coastal Comm'n, 483 U.S. 825, 832 (1987).
Nothing in this Court's decisions suggests that a prohibition on timber harvesting should be regarded for takings purposes as a "physical occupation," either by the trees themselves or by the wildlife whose habitat is protected. As the court of appeals explained, "[t]he government has no control over where the spotted owls nest, and it did not force the owls to occupy [petitioner's] land. The government simply imposed a temporary restriction on [petitioner's] exploitation of certain natural resources located on its land unless [petitioner] obtained a permit." Pet. Supp. App. sa25. Petitioner's theory would obliterate the distinction, central to this Court's Just Compensation Clause jurisprudence, between physical and regulatory takings. Under petitioner's theory, restrictions on a broad range of ground-disturbing activities (e.g., logging, mining, filling of wetlands) could be recharacterized as "physical occupations" of the land by its existing physical features.
Land-use restrictions that deprive a parcel of all economic value may effect a taking under this Court's decision in Lucas. And even where the economic consequences of land-use regulation are less severe, the property owner may be able to establish a taking under the multi-factor analysis described in Penn Central. The government does not cause a per se taking under Loretto, however, simply by prohibiting the destruction or alteration of some pre-existing physical feature of the land.
3.	Petitioner contends (Pet. 20) that "[t]here is a split among the lower courts in cases involving wildlife over whether a property owner can sustain a claim based on a physical taking theory." Contrary to petitioner's suggestion, the cases upon which petitioner relies do not conflict with the court of appeals' decision.
In Southview Associates, Ltd. v. Bongartz, 980 F.2d 84 (1992), cert. denied, 507 U.S. 987 (1993), the Second Circuit rejected a claim similar to the one petitioner advances here. The plaintiff there claimed that the denial of a permit to construct a residential subdivision based on harm to necessary deer habitat constituted a per se taking under Loretto. Id. at 92-93. The court of appeals provided a detailed analysis of that claim and ultimately concluded that the permit denial "represent[ed] a regulation of the use of Southview's property, rather than a per se physical taking." Id. at 95. That holding is fully consistent with the court of appeals' decision in this case.
Bailey v. Holland, 126 F.2d 317 (4th Cir. 1942), did not involve a physical taking claim at all. The plaintiff there sued to enjoin enforcement of a regulation prohibiting hunting of migratory water fowl on lands adjacent to a federally owned refuge. Id. at 319. The plaintiff contended, inter alia, that the hunting ban constituted a regulatory taking. Id. at 324. The Fourth Circuit rejected that claim. Ibid.
Wisconsin v. Herwig, 117 N.W.2d 335 (Wis. 1962), involved a criminal prosecution for violation of a rule prohibiting hunting in an area of privately owned land. The defendant had a valid hunting license, but was nonetheless charged with hunting on his own land because it was designated a closed area. The court affirmed the defendant's acquittal, finding that the hunting ban worked a regulatory taking of his property under the state constitution. Id. at 340. The court did not discuss the proper treatment of per se physical invasions under the Fifth Amendment, and the case did not involve temporary restrictions on particular uses of property during permitting procedures.
In Shellnut v. Arkansas State Game & Fish Commission, 258 S.W.2d 570 (Ark. 1953), the Supreme Court of Arkansas struck down a state regulation that prohibited hunting on lands surrounded by state wildlife refuges. The plaintiffs brought suit to enjoin enforcement of the regulation on the ground that it materially reduced the value of their lands by precluding them from preventing damage to their crops caused by deer. Id. at 573. Like the Wisconsin Supreme Court's decision in Herwig, the Arkansas Supreme Court's decision was based on the state rather than the federal constitution, see id. at 573-574, and it predates this Court's modern takings jurisprudence. Nor did that case involve temporary land-use restrictions imposed during the pendency of a permit application process. Petitioner has therefore identified no conflict in authority warranting this Court's review.
4.	Petitioner suggests in passing (see Pet. 10, 19, 22) that the district court injunction effected a per se physical taking by authorizing FWS officials to enter and inspect petitioner's tract. That claim lacks merit. Although a per se taking may occur when members of the public "are given a permanent and continuous right to pass to and fro" along private property, Nollan, 483 U.S. at 832 (emphasis added), this Court has not suggested that the government must pay compensation whenever its officials enter privately owned land to monitor compliance with applicable legal requirements. To the contrary, the Court in Loretto emphasized the constitutional distinction between "cases involving a permanent physical occupation, on the one hand, and cases involving a more temporary invasion, * * * on the other." 458 U.S. at 428; see id. at 428-435; cf. New York v. Burger, 482 U.S. 691, 699-701 (1987) (discussing circumstances under which warrantless searches of commercial property will be deemed reasonable under the Fourth Amendment).
1	An endangered species is one that is in danger of extinction throughout all or a significant portion of its range. 16 U.S.C. 1532(6). A threatened species is one that is likely to become endangered within the foreseeable future throughout all or a significant portion of its range. 16 U.S.C. 1532(20).
2	Petitioner's complaint identified "50 acres of merchantable timber," C.A. App. 14, but apparently the tract is somewhat larger. See Pet. 5; Pet. Supp. App. sa1.
3	On June 28, 1998, petitioner filed suit in the Court of Federal Claims (CFC), alleging a Fifth Amendment permanent taking of the Walker Creek Unit resulting from the district court's injunction. See C.A. App. 134. The United States argued that the takings claim was not ripe because petitioner had not sought a permit from the FWS. Ibid. On November 13, 1998, the CFC entered a voluntary dismissal of petitioner's complaint without prejudice in order to facilitate petitioner's pursuit of available administrative remedies. Ibid.
4	Petitioner does not press in this Court its prior claim, rejected by the court of appeals (see Pet. Supp. App. sa9-sa21), that the district court injunction effected a regulatory taking of its property.
5	On January 13, 2003, this Court denied the petition for a writ of certiorari in Seiber v. Oregon, No. 02-348, which presented a substantially similar question.

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The company data protection officer of CRIF Bürgel GmbH can be contacted at the above address, FAO Data Protection department or by email to datenschutz@crifbuergel.de.
When you visit our website, we collect, process and use personal data to the extent permitted by law or necessary for processing or if you have given your consent for this.
The name of the website accessed, file, date and time of access, amount of data transferred, notification of successful access, browser type along with version, the operating system of the user, referrer URL (the site previously visited), IP address and the requesting provider. This data is only used for statistical evaluations for the purpose of running, securing and optimising the offering.
The legal basis for the collection of data via log files is article 6 para. 1 clause 1 letter b GDPR (for the fulfilment of the contract for the use of the homepage) and article 6 para. 1 clause 1 letter c GDPR (for the security of data processing). Furthermore, we have a legitimate interest within the meaning of article 6 para. 1 clause 1 letter f GDPR to continually improve and optimise the offering on our homepage in the interests of the users.
The data collected and stored via server log files is deleted after 7 days at the latest or - in the case of IP addresses - made anonymous by truncation.
You can subscribe to our free newsletter on our website. To subscribe to the newsletter, simply enter your email address. You also have the option to enter your name and address. The actual registration takes place via a "double opt-in procedure". This means that after registration you will receive another email with a confirmation link. This validation is necessary to verify your email address.
The legal basis for sending the email is article 6 paragraph 1 letter a GDPR (consent).
You can unsubscribe from our newsletter at any time. You will find a link to unsubscribe at the end of each newsletter. Deregistration is also seen as revocation of your consent. In this case, the data you have provided will be deleted.
For further information about our services, please contact us via our online contact form. Your data will be stored in our Customer Relationship Management system ("CRM system") and forwarded internally for further processing. All personal data with which you provide us in connection with this contact request will be used only for the purposes of responding to your enquiry or making contact with you, and for the associated technical administration.
The legal basis for data processing is article 6 para. 1 clause 1 letter a GDPR (consent) or article 6 paragraph 1 clause 1 letter b GDPR (implementation of pre-contractual measures).
The enquiries will be deleted after two years at the latest. Legal retention periods shall be observed accordingly.
According to article 6 para. 1 clause 1 letter b GDPR, the disclosure is necessary for the processing of contractual relationships with you, e.g. to suppliers or recipients of goods or services named by you.
There is a legal obligation to pass on data in accordance with article 6 para. 1 clause 1 letter c GDPR, e.g. to financial or criminal prosecution authorities.
The disclosure is required under article 6 para. 1 clause 1 letter f GDPR to assert, exercise or defend legal claims and there is no reason to assume that you have an overriding interest worthy of protection in not disclosing your data; such disclosure may take place to government institutions and law enforcement authorities, for example, in the event of attacks on our IT systems.
Our newsletter is sent by the dispatch service Newsletter2Go GmbH, Köpenicker Strasse 126, 10179 Berlin as a processor under article 28 GDPR. The data protection provisions of Newsletter2Go can be viewed at https://www.newsletter2go.de/datenschutz/.
We remain the controller for data protection even if processors are involved. We do not intend to transfer your personal data to a third country.
Cookies are used, among other things, for the purposes of enabling certain functions of the websites and for managing the session on a technical level. We use so-called session cookies to recognise that you have already visited individual webpages of our website within a session and to enable session control, e.g. to save form entries or shopping baskets during the session. Session cookies are deleted at the latest when you close your web browser.
In addition, we use temporary cookies that are stored in the web browser of your end device for a defined period of time to optimise and guarantee user-friendliness. If you visit our site again, it is automatically recognised that you have already visited our web pages and which settings you have stored so you do not need to deal with these again.
Furthermore, we use tracking cookies to statistically record the use of our website and to evaluate it for the purpose of optimising and advertising our offering. These cookies enable us to automatically recognise your end device the next time you visit our site and to localise it to a certain extent via IP addresses. These cookies are also automatically deleted after a defined time, at the latest after 365 days. More details can be found in the following chapter on web analysis.
The cookies necessary for the functioning of the website, the cookies for session control and the session cookies are processed in accordance with article 6 para. 1 clause 1 letter b GDPR (contract fulfilment). Data processing by means of cookies to optimise the websites and to ensure user-friendliness is carried out in accordance with article 6 para. 1 clause 1 letter f GDPR (legitimate interest) and for advertising purposes and web analysis of tracking cookies in accordance with article 6 para. 1 sentence 1 letter a GDPR (consent).
We use the web analysis service etracker, which is operated by etracker GmbH ("etracker") in Germany. This service collects and stores data for marketing and optimisation purposes. Usage profiles under a pseudonym can be created from this data. Cookies can be used to do this. Etracker's cookies do not contain any information that enables a user to be personally identified. More information can be found at www.etracker.com/de/datenschutz.html. Data collection and storage can be objected to at any time at www.etracker.de/privacy?et=ET_PARAMETER with effect for the future.
We use the web analysis service Google Analytics, which is provided by Google Inc. ("Google") in the USA.
This service collects and stores data for marketing and optimisation purposes. Usage profiles under a pseudonym can be created from this data. Cookies can be used to do this. Information generated by the cookie about your use of the homepage is usually transmitted to and stored on a Google server in the USA. We have activated IP anonymisation on our homepage, i.e. Google will shorten your IP address within member states of the European Union or in other states party to the Agreement on the European Economic Area. Only in exceptional cases shall the full IP address be transferred to a Google server in the USA and truncated there. Based on our order, Google will use this information to evaluate your use of the offering, to compile reports on website activities and to provide the website operator with further services associated with website and Internet use. The IP address provided by your browser as part of Google Analytics will not be combined with other data from Google.
We wish to point out that, on this offering, Google Analytics has been extended with the code "gat._anonymizeIp();" in order to ensure the anonymous collection of IP addresses (IP masking).
You can also find more information on this at www.google.com/intl/de/analytics/privacyoverview.html. You can prevent Google from collecting data generated by the cookie and relating to your use of the offering (including your IP address) and processing this data by downloading and installing the browser plug-in available at the following link.
We use the online advertising program Google AdWords, which was developed by Google Inc. ("Google") in the USA, and in the context of this, conversion tracking.
Cookies can be used to do this. The cookie for conversion tracking is set when a user clicks on an ad placed by Google. These cookies expire after 30 days and are not used for personal identification. If the user visits certain pages of our website when the cookie has not yet expired, we and Google can detect that the user clicked on the ad and proceeded to this website. Each Google AdWords customer has a different cookie. Thus, cookies cannot be tracked using the website of an Adwords advertiser. The information obtained using the conversion cookie is used to create conversion statistics for Adwords customers who have opted into conversion tracking. Customers are told the total number of users who clicked on their ad and were redirected to a conversion tracking tag page. However, advertisers do not obtain any information that can be used to identify users personally. Users who do not wish to participate in tracking can easily disable the cookie of Google conversion tracking on their web browser under user settings. These users will not be included in the conversion tracking statistics.
For more information, see http://www.google.com/intl/de/policies/privacy.
This offering uses a plug-in from the social network Facebook (1601 South California Avenue, Palo Alto, CA 94304, USA). You can recognise this by the "like" button and the Facebook logo.
When you visit this website, the plug-in establishes a connection between the Facebook server and your browser. In doing so, Facebook is informed that the IP address you used was used to visit this website. You can link content from this website to your Facebook profile if you are logged into your Facebook account and click the "like" button. Facebook will then associate your visit to this site with your account. Only Facebook has knowledge of the content of the data transmitted as well as how it is used.
This offering uses a plug-in from the service Twitter. This service is provided by Twitter Inc. (1355 Market St, Suite 900, San Francisco, CA 94103, USA). Through the use of Twitter and the "re-tweet" function, the web pages which you visit will be linked to your Twitter account and made known to other users. In the process, data will also be transferred to Twitter. The provider has no knowledge of the content of the transmitted data and its use by Twitter.
Your privacy preferences on Twitter can be modified in your account settings at http://twitter.com/account/settings.
Each time one of our pages containing XING features is accessed, your browser establishes a direct connection to the XING servers. To the best of our knowledge, no personal data is stored in the process. In particular, no IP addresses are stored nor is usage behaviour evaluated.
Each time one of our pages containing LinkedIn features is accessed, your browser establishes a connection to the LinkedIn servers. LinkedIn is informed that you have visited our websites from your IP address. If you use the LinkedIn “Recommend” button and are logged into your LinkedIn account, it is possible for LinkedIn to associate your visit to our website to your user account. We would like to point out that, as the provider of these web pages, we have no knowledge of the content of the data transmitted or how it will be used by LinkedIn.
The LinkedIn plug-in is used on the basis of art. 6 para. 1 letter f GDPR. The website operator has a justified interest in the widest possible visibility on social media.
Our website uses plug-ins from the YouTube site, which is operated by Google. The operator of the pages is YouTube LLC, 901 Cherry Ave., San Bruno, CA 94066, USA. If you visit one of our pages featuring a YouTube plug-in, a connection to the YouTube servers is established. Here the YouTube server is informed about which of our pages you have visited.
to request information about your personal data processed by us in accordance with article 15 GDPR. In particular, you may obtain information about the purposes of processing, the category of personal data, the categories of recipients to whom your data has been or will be disclosed, the planned retention period as far as possible, the existence of a right to rectification, erasure, restriction of processing or objection, the existence of a right of appeal, the origin of your data, if this has not been collected from you, and requires the existence of automated decision-making including profiling and, where appropriate, meaningful information about its detail.
– the personal data must be erased for compliance with a legal obligation under European Union or Member State law to which the controller is subject.
– the personal data was collected relating to information society services provided pursuant to article 8 para. 1 GDPR (consent of a child).
– you have lodged an objection to the processing pursuant to article 21 GDPR.
to lodge a complaint with a supervisory authority according to article 77 GDPR. As a rule, you can contact the supervisory authority of your usual place of residence or workplace or our headquarters.
If your personal data is processed on the basis of legitimate interests in accordance with article 6 para 1 clause 1 letter f GDPR, you have the right to object to the processing of your personal data in accordance with article 21 GDPR if there are reasons which arise from your particular situation, or if the objection is directed against direct advertisement. In the latter case, you have a general right of objection, which we will implement without specifying a particular situation.
If you would like to make use of your right of revocation or objection, you can contact us using the above contact details and send us an email, for example.
During the visit to our website, we use the most common SSL (Secure Socket Layer) method together with the highest level of encryption supported by your browser. Usually, this is 256-bit encryption. Whether an individual page of our website is transmitted in encrypted form can be seen from the key or lock symbol in the status bar of your web browser appearing in closed form.
In addition, we use suitable technical and organisational measures for security of data processing appropriate to the level of risk, in particular to protect your data against manipulation or unauthorised access. In doing so, we take latest technology into account. Our security measures are adapted to keep up with technological developments.
CRIF Bürgel GmbH processes personal data in order to provide authorised recipients with information for assessing the creditworthiness of natural and legal persons. Score values are also calculated and transmitted for this purpose. It shall only make the information available if a justified interest in this has been substantiated in individual cases and processing is permissible, after consideration of all interests. The legitimate interest exists, in particular, before entering into transactions with a risk of financial default. The creditworthiness check serves to protect recipients from losses in the lending business and at the same time opens up the possibility of protecting borrowers from excessive indebtedness by providing advice. The data is also processed for fraud prevention, money laundering prevention, identity verification, address identification, customer services, direct marketing or risk management. CRIF Bürgel GmbH will provide information about any changes to the purposes of data processing in accordance with article 14 para. 4 GDPR.
CRIF Bürgel GmbH processes personal data on the basis of the provisions of the General Data Protection Regulation. Processing is carried out on the basis of consents and on the basis of art. 6 para. 1 letter f GDPR, insofar as the processing is necessary to safeguard the legitimate interests of the controller or a third party and does not outweigh the interests or fundamental rights and freedoms of the data subject which require that personal data be protected. The legitimate interest exists, in particular, before entering into transactions with a risk of financial default.
Consents may be revoked at any time vis-à-vis the contracting party concerned. This also applies to consents granted before the GDPR came into force. The revocation of consent does not affect the legality of the personal data processed prior to revocation.
CRIF Bürgel GmbH receives its data from its contractual partners. These are companies based in the European Economic Area or Switzerland in the fields of trade, services, leasing, energy supply, telecommunications, insurance or debt collection as well as banks, financial and payment service providers and other contractual partners who use CRIF Bürgel GmbH products for the purposes mentioned under 2.1. In addition, CRIF Bürgel GmbH processes information from generally accessible sources such as public registers and official announcements (commercial registers, debtor registers, insolvency announcements).
Recipients are contractual partners of the sectors mentioned under 2.3. When data is transferred to countries outside the European Economic Area, the requirements of the European Commission apply. Further recipients may be contractors of CRIF Bürgel GmbH according to art. 28 GDPR.
Data from the debtor registers of the central enforcement courts after three years to the day, but earlier than this if CRIF Bürgel GmbH substantiates erasure with the central enforcement court.
Information on consumer/insolvency proceedings or residual debt exemption proceedings exactly three years after the end of insolvency proceedings or the granting of the residual debt exemption. Earlier erasure may also take place for individual cases stored separately.
Information on the rejection of an insolvency application due to lack of assets, the lifting of the security measures or the rejection of the residual debt exemption after three years to the day.
Previous addresses are stored for three years to the day, after which the necessity of ongoing storage is checked for a further three years. After that, they will be deleted to the day, unless a longer period of storage is required for identification purposes.
Regarding CRIF Bürgel GmbH, every data subject has the right of access pursuant to art. 15 GDPR, the right of rectification pursuant to art. 16 GDPR, the right of erasure pursuant to art. 17 GDPR and the right of limitation of processing pursuant to art. 18 GDPR. In addition, it is possible to contact the supervisory authority responsible for CRIF Bürgel GmbH: the Bavarian State Office for Data Protection Supervision. Consents may be revoked at any time vis-à-vis the contracting party concerned.
Pursuant to art. 21 para. 1 GDPR, data processing may be objected to for reasons arising from the particular situation of the data subject. The objection can be made in any form and is to be addressed to CRIF Bürgel GmbH, Data Protection, Radlkoferstraße 2, 81373 Munich.
Before entering into transactions with an economic risk, business partners want to be able to assess as well as possible whether the payment obligations entered into can be met. By providing information and using probability values, CRIF Bürgel GmbH supports companies in making decisions and helps them to process day-to-day (commodity) credit transactions quickly.
A forecast of future events is made on the basis of the information collected and previous experience. The calculation of the probability values at CRIF Bürgel GmbH is primarily based on the information stored at CRIF Bürgel GmbH about a data subject, which is also disclosed in the information pursuant to art. 15 GDPR. Address data is also used. Based on the entries stored for a person and other data, they are assigned to statistical groups of persons who have had similar payment patterns in the past. The method used is called "logistic regression" and is a well-founded, mathematical and statistical method for predicting risk probabilities that has been tried and tested in practice for many years.
CRIF Bürgel GmbH uses the following data to calculate scores, although not every type of data is included in every individual score calculation: date of birth, gender, shopping basket value, address data and duration of residence, payment problems to date, public negative features such as non-delivery of asset information, creditors' satisfaction excluded, creditors' satisfaction not proven, collection procedure and debt collection monitoring procedure. CRIF Bürgel GmbH itself does not make any decisions; it merely supports its affiliated contractual partners by providing its information in the decision-making process. The direct business partner alone is responsible for assessing and assessing creditworthiness, as only he/she/it has access to a great deal of additional information. This also applies if he/she/it relies solely on the information and probability values from CRIF Bürgel GmbH.

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