In addition to being regulated by the Fair Debt Collection Practices Act (FDCPA), Wyoming collection agencies are also regulated by Wyoming debt collection laws. Discover: Wyoming collection requirements, bad check laws (NSF), statutes of limitations for both debts and judgments, garnishments plus Wyoming collection agency license and bonding information.
Double the face amount plus damages equal to collection cost and reasonable attorney fees.
See federal law for consumer credit sale, lease or loan. Up to 65% for child support arrearage.
(F) Collects debts incurred in this state from debtors located in this state by means of interstate communications, including telephone, mail or facsimile or any other electronic method, from the debt collector’s location in another state.
(B) Any person whose principal office is located outside the state of Wyoming and who only maintains a branch or satellite office in this state.
(xiii) “This act” means W.S. 33-11-101 through 33-11-116.
(viii) Any licensed attorney acting in an attorney-client relationship with the creditor, and who conducts the collection in the true name of the client.
(c) Repealed by Laws 1993, ch. 21, ï¿½ 2.
No person shall conduct a collection agency or act as a debt collector or solicitor within this state without first having obtained a license as provided in this act, except that a debt collector or solicitor acting in the course of his employment for a collection agency licensed in Wyoming is not required to have an individual license.
§ 33-11-103. Collection agency board created; membership; appointment; term; qualifications; chairman.
(a) The collection agency board is created. The board shall consist of three (3) members appointed by the governor. One (1) member shall be an attorney-at-law who is actively engaged in collection work. One (1) shall be an officer, partner, owner or resident manager of a licensed collection agency, who is not an attorney-at-law. One (1) shall be a member of the public at large who is neither an attorney-at-law nor affiliated with a collection agency, but who is or has been a user of credit or collection services.ï¿½ Commencing in 1993, members of the board shall be appointed for a term of four (4) years.ï¿½ Members of the board shall serve until their successors are duly appointed and qualified.
(b) No person shall be appointed as a member of the board who has not been a bona fide resident of the state of Wyoming for at least five (5) years immediately prior to his appointment. The attorney and the officer, partner, owner or resident manager of a collection agency shall have been engaged in the collection business within the state of Wyoming for a period of five (5) years immediately prior to appointment.ï¿½ The member of the public at large shall have at least five (5) years experience as a user of credit or collection services.
(c) Upon the death, resignation or removal of any member of the board, the governor shall appoint a member to serve the remaining unexpired term. Any member of the board may be removed by the governor as provided in W.S. 9-1-202.
(d) Members of the board shall elect one (1) of their members chairman to serve for a term of two (2) years.
§ 33-11-104. Collection agency board; compensation, per diem and travel expense.
All members of the collection agency board shall be paid salary, per diem and mileage in the same manner and amount as members of the Wyoming legislature when attending any regular or called meeting of the board. Salary, per diem and travel expense for all board members shall be paid solely from the account containing the license fees established and payable under this act.
§ 33-11-105. Powers and duties of collection agency board.
(a) The board shall assist and advise the chairman, who shall have charge of the administration of this act. All applications for licenses under this act shall be referred by the chairman to the board for consideration. The board shall investigate the qualifications of the applicant. If the board finds the applicant fails to meet the required qualifications, the board shall reject the application; otherwise the application shall be approved and a license issued on payment of license fees and filing of a bond as required by this act.
(F) Has knowingly failed to comply with or violated any provision of this act or the rules and regulations of the board adopted pursuant to this act.
§ 33-11-106. Authority to make rules and regulations; violations; penalties.
The board shall make reasonable rules and regulations for the administration of this act, and for prescribing acceptable professional standards of conduct of licensees. Any violation of the rules and regulations of the board shall be grounds for the imposition of a civil penalty not to exceed one thousand dollars ($1,000.00) or suspension, revocation or refusal to renew any license issued under this act, or any combination thereof.
§ 33-11-107. Application for license; qualifications; financial statement.
(vi) Other information as the board may require to determine the qualifications of the applicant and the resident manager to be licensed to conduct a collection agency business.
(b) The application shall be accompanied by a financial statement of the applicant, showing the applicant to be financially sound.
(c) All applicants shall have an established office in Wyoming with a bona fide resident of Wyoming as a resident manager of the office. All resident managers shall pass an examination as prescribed by the board to determine the fitness of the resident manager to conduct a collection agency business.
(d) The board may collect an examination fee not to exceed one hundred dollars ($100.00) for each examination given. The board shall establish by rule the amount and method of payment of the examination fee.ï¿½ All fees collected shall be credited to the account and used as provided by W.S. 33-11-111.
§ 33-11-108. Bond required for license; terms, conditions and execution; amount; notice to surety; new bond.
(a) The applicant shall be notified when the application is approved.ï¿½ Within twenty (20) days after notification, the applicant shall file and thereafter maintain a deposit with the state treasurer or a bond as required by this act. The license shall be issued upon approval of the bond by the board and the attorney general. The bond shall be issued by a surety company licensed and authorized to do business in Wyoming, in the sum of ten thousand dollars ($10,000.00) and shall run to the state of Wyoming and to any party who may be a claimant. The bond shall be executed and acknowledged by the applicant as principal. The applicant may satisfy the bond requirement of this section by depositing with the state treasurer ten thousand dollars ($10,000.00) cash.
(b) The bond shall be conditioned that the principal, as a licensee under this act, shall pay and turn over to or for the use of any claimant from whom any debt is taken or received for collection, the proceeds of such collection less the charges for collection in accordance with the terms of the agreement made between the principal and the claimant.
(c) The bond shall cover all debts placed with the licensee for collection. Any claim under the bond shall be presented to the board.ï¿½ The board shall promptly notify the surety. If the surety fails to pay or settle the claim within thirty (30) days after notice from the board, the claimant may bring suit on the bond in the claimant’s own name. The aggregate liability of the surety for any and all claims which may arise under the bond shall in no event exceed the amount of the penalty of the bond.
(d) A licensee may file a new bond with the board at any time. A surety company may file with the board notice of its withdrawal as surety of any licensee. Upon the filing of a new bond or a notice of withdrawal, the liability of the former surety for all future acts of the licensee shall terminate except as provided in W.S. 33-11-109.
(e) Upon filing notice with the board by any surety company of its withdrawal as the surety of any licensee, or upon the revocation by the insurance commissioner of the authority of any surety company to transact business in this state, the board shall immediately give notice to the licensee of the withdrawal or revocation. Within thirty (30) days from the date of notification the licensee shall file a new bond with the board.ï¿½ If a licensee fails to file a new bond satisfactory to the board within the time allowed, the right of the licensee to conduct a collection agency shall terminate.
§ 33-11-109. Bond of agency; limitation of actions.
No action shall be brought upon any bond required to be given under this act after the expiration of two (2) years from the revocation or expiration of the license issued to the licensee and principal under the bond.ï¿½ Except for any action commenced upon the bond prior to expiration of the two (2) year period, all liability of the surety upon the bond shall cease on the expiration date.
§ 33-11-110. License; renewals; fee; license nontransferable; display.
(a) Fees for the licensing of collection agencies shall be set by the board. All fees shall be established in accordance with W.S. 33-1-201. Each office or place of business shall be licensed separately.
(b) Each collection agency license expires one (1) year from the date of issuance. A collection agency license is not transferable. Each collection agency license shall be displayed in a conspicuous place in licensee’s place of business.
§ 33-11-111. Disposition of fees.
All fees and money received and collected by the board shall be deposited with the state treasurer, who shall credit the money to a separate account. All monies paid into the state treasury and credited to the account are appropriated to the use of the collection agency board for the payment of all necessary expenses incurred in administering this act, including the payment of per diem, salary and mileage to members of the board.
§ 33-11-112. Action upon complaints; records of proceedings.
(a) Any interested person may file a verified written complaint charging any collection agency licensee with the violation of this act or the rules adopted by the board, or with conduct that shows the licensee is unworthy to continue to operate a collection agency within this state. The complaint shall be filed with the board which shall investigate the complaint if necessary or refer the complaint to appropriate staff for investigation and referral back to the board for proper disposition.
(b) The board, on its own motion, may make, or cause to be made, an investigation of the conduct of any licensee. As a part of an investigation, the board may audit the books and accounts of a licensee.ï¿½ The audit may be conducted by an auditor from the state department of audit or by a certified public accountant contracted by the board.
(c) Repealed by Laws 1981, ch. 25, ï¿½ 2.
(d) For the purpose of an investigation or for hearing a complaint, the board may hold a hearing in accordance with the Wyoming Administrative Procedure Act. The hearing may be conducted by a hearing examiner. The chairman may subpoena witnesses and books, records and documents relative to the inquiry.ï¿½ Witnesses may be required to testify under oath.ï¿½ If the board finds the licensee has violated the provisions of this act or the rules promulgated by the board, the licensee may be sanctioned by a civil penalty not to exceed one thousand dollars ($1,000.00) or refusal to renew, suspension or revocation of his license or any combination thereof. Any civil penalties collected pursuant to this section shall be paid to the state treasurer and credited as provided in W.S. 8-1-109.
(e) A copy of the complaint and a complete record of the investigation and the disposition made shall be retained by the board in the office of the board.
§ 33-11-113. Records of license and bond actions; confidentiality.
(a) The board shall keep a record of all applications for licenses and all bonds filed. The record shall state whether or not a license has been issued under the application and bond. If a bond is withdrawn, replaced or revoked, or the license to operate a collection agency is temporarily terminated because of the failure of the surety on the bond, the facts shall be reflected in the record with the date of filing any order of suspension, revocation or reinstatement. The application form and bond, and records relating thereto shall be open for inspection as a public record in the office of the board.
(b) Financial statements, credit reports and other financial information required by the board in support of a license application or in an investigation, and unresolved complaints or complaints found to be without merit are confidential and are not subject to inspection as a public record.
§ 33-11-114. Furnishing or advertising legal services; scope of authority to solicit, acquire or collect claims.
No licensee, under the terms of this act, shall render legal services or advertise directly or indirectly, that it will render legal services, but any licensee can solicit claims exclusively for the purpose of collection, take assignments thereof for the purpose of collection by suit or otherwise, and for such purpose, shall be deemed to be the real party in interest in any suit brought upon such assigned claim.
§ 33-11-115. Prohibited acts; penalty for violations; injunctive relief.
(a) In addition to other penalties, any person who carries on the business of a collection agency without first having obtained a license, or who carries on a collection agency business after the termination, suspension, revocation or expiration of a license, is guilty of a misdemeanor and upon conviction shall be fined not less than fifty dollars ($50.00) nor more than seven hundred fifty dollars ($750.00), imprisoned in the county jail not more than six (6) months, or both.
(b) When it appears to the board that any person is violating any of the provisions of this act, the board may, in its own name, bring an action in a court of competent jurisdiction for an injunction, and courts of this state may enjoin any person from violating this act regardless of whether proceedings have been or may be instituted before the board or whether proceedings have been or may be instituted under subsection (a) of this section. The proceedings shall be prosecuted by the attorney general, or if approved by the attorney general, by private counsel engaged by the board.
§ 33-11-116. Prosecution of violations.
The district attorney shall prosecute all violations of this act occurring within his district. collector the right to treat you unfairly.
Knowing and abiding to the proper Wyoming debt collection laws is important for both creditors and collection agencies alike. There are debtor’s rights attorneys who are just waiting for creditors or collection agencies to slip up. If you mistakenly violate the Wyoming debt collection laws, you could create a liability for your business and even open yourself up to a expensive lawsuit.
Please note: Wyoming debt collection laws can change over time, and you need to consult with an attorney before you use this information.


THE PEOPLE, Plaintiff and Respondent, v. BRIAN DAVID FRYE, Defendant and Appellant.
Thomas Lundy, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Acting Assistant Attorney General, Michael Weinberger and Joel Carey, Deputy Attorneys General, for Plaintiff and Respondent.
In this case of murder and attempted murder, the trial court instructed the jury that a killing or attempted killing was unlawful unless it was either excusable or justifiable. It went on to instruct the jury that "[i]t is undisputed in this case that each of the acts in question was an unlawful act." Defendant contends that by this instruction the trial court improperly directed the jury's verdict on disputed factual issues. We reject this contention in the published portion of this opinion. As we shall explain, the word "unlawful" in the various homicide instructions simply means that there was no excuse or justification for the killing. In this sense it is a negative rather than an affirmative element of the homicide offenses. Because there was no issue of excuse or justification tendered or raised in this case, the trial court did not direct a verdict on either an affirmative element of the charged crimes or on a defense to those crimes.
Defendant Brian David Frye appeals from a judgment sentencing him to state prison after a jury found him to be guilty of the first degree murder of William Edward Massey, Jr., with the personal use of a firearm, and of the attempted murder of Jennifer Lynn Bothun, with the personal use of a firearm and in which he intentionally inflicted great bodily injury. (Pen. Code, §§ 187, 664/187, 12022.5, 12022.7.) In addition to the directed verdict [7 Cal. App. 4th 1152] issue, defendant further contends: (1) the felony-murder instructions did not require the jury to find that an intent to commit robbery preceded the killing; (2) the court erred in failing to instruct on unconsciousness; (3) the jury instruction on express malice was erroneous; (4) the court failed to require jury unanimity with respect to an act of robbery for application of the felony-murder rule; (5) the failure to grant testimonial immunity to a defense witness violated principles of due process; (6) the court failed to consider intoxication in mitigation at sentencing; and (7) only one sentence enhancement for the use of a firearm may be imposed. We consider these remaining contentions in the unpublished portion of this opinion and there agree with defendant's last contention and shall modify the judgment accordingly. In all other respects we shall affirm.
The murder victim, William Massey, Jr., was a seller of methamphetamines. The victim of the attempted murder, Jennifer Bothun, was Massey's girlfriend. Defendant was one of Massey's customers. In the months before the murder Massey had sold drugs to defendant on credit and had become infuriated when defendant failed to pay his debt. In fact, Massey had refused to sell any more drugs to defendant until he paid his debt.
In the early morning hours of January 24, 1988, Bothun and Massey were together when Massey's electronic paging beeper sounded. It signalled a telephone number and defendant's customer code. Massey called defendant. Bothun heard Massey ask if defendant had the money he owed and then ask where to meet. Massey told Bothun that before he took her home they would meet defendant at a school parking lot to pick up some money.
When Massey and Bothun arrived at the school they could not locate defendant. After unsuccessfully looking for him they began to drive away but then saw him in the parking lot and returned. Bothun leaned over and unlocked the passenger door as defendant approached Massey's truck. Defendant began shooting into the truck. At first he shot through the closed window but then opened the door and fired again. Defendant fired numerous shots into the truck. The shots killed Massey and seriously wounded Bothun. Bothun blacked out.
When Bothun regained consciousness defendant was going through Massey's jacket pockets. Defendant pushed Massey's body to the floor of the truck and began driving away. For a time Bothun acted as though she was dead but eventually she sat up and pleaded with defendant not to kill her. Defendant pointed his gun at Bothun. She grabbed the barrel and pushed it [7 Cal. App. 4th 1153] away. Defendant began struggling with Bothun for the gun and as he did so it discharged into his fingers. Bothun grabbed the steering wheel and caused defendant to stop the truck. As they struggled for the gun Bothun grabbed the truck keys and threw them out. Defendant retrieved the keys and attempted to put them in the ignition but Bothun hit his hands and caused him to drop them. Throughout this ordeal defendant intermittently attempted to strangle Bothun.
Bothun's screams attracted the attention of a number of people, including Woodrow Lloyd, a nearby resident. Lloyd told his son and his roommate to call the police, then he armed himself and went out to the truck. He pulled defendant out of the truck and placed himself between defendant and the truck. Defendant told Lloyd that he and his girlfriend had been drinking and were having a problem and that it was none of his business. Defendant tried to get around Lloyd and back to the truck but Lloyd would not let him do so. Lloyd pulled out his gun and told defendant that he had called the police and that defendant was not going to get back to the truck until they arrived. Defendant fled on foot.
As defendant ran home he hid certain items of evidence, including a holster, bullets, and items of clothing, in residential yards. When he arrived home he concealed his injury from his mother and hid his gun in the crawl space above the kitchen. He called his father for help and said that his fingers had been shot off. Before defendant's father could take him to the doctor, police officers arrived to arrest him. Defendant asked the arresting officers to take him to the hospital and said that he had a firecracker go off in his hand. This was also the explanation defendant gave to the doctor who treated his wounds at the hospital.
The defense questioned defendant's mental state at the time of the crimes. Defendant testified to drug and alcohol abuse in the few days preceding the incident. He said that he had not slept for a long period before the crimes. He claimed to remember little about the actual incident. A defense expert testified to the effects that substance abuse can have on a person's mental state. Based upon defendant's version of the events, he opined that defendant had an impaired mental state at the time of the crimes.
[1b] It is in this light that we must review the jury instructions in this case. The circumstances of this case which we find relevant in our review are: (1) There was no evidence to suggest any form of excuse or justification. (2) Defendant did not object to the court's special instruction and did not otherwise indicate that he was relying upon excuse or justification. (3) In argument to the jury defendant conceded the unlawfulness of his conduct. After noting that one psychological author had suggested that a person in a drug-induced blackout is not truly responsible for his conduct, counsel said: "Fine. If that were literally true then I can say [defendant] is not guilty, okay, but I'm not going to say that to you. I'm not going to say he's not guilty. I'm not going to try and tell you he's not responsible for these shootings because he is responsible, and there is some price he has to pay for them. [¶] But I am trying to tell you it's-simply that from all the circumstances available for us to know at this point, all of those circumstances clearly points [sic] to the conclusion and the fact he did not deliberate, he did not premeditate, and he may not have even had malice aforethought."
We have noted that the concept of unlawfulness in a homicide case simply signifies the absence of excuse or justification and that excuse and justification are affirmative defenses which need not and should not be put before the jury in the absence of some evidence supporting them or defense reliance upon them. Since there was no issue of excuse or justification here, the concept of unlawfulness was superfluous to the charged offenses. In instructing a jury it is proper for a trial court to explain and define terms which [7 Cal. App. 4th 1160] might otherwise lead to confusion. (People v. Failla (1966) 64 Cal. 2d 560, 565 [51 Cal. Rptr. 103, 414 P.2d 39]; People v. Smith (1978) 78 Cal. App. 3d 698, 710 [144 Cal. Rptr. 330].) This is what the court did by explaining to the jury that the word unlawful means without excuse or justification and that there was no issue in this case with respect to those defenses. Since those defenses are not elements of the offenses which the prosecution is required to prove unless they are properly raised, we do not find the instruction to have been erroneous in the circumstances presented.
 It is not enough that, considered in isolation, a particular instruction is valid and appropriate. We must also consider the instructions as a whole to determine what they would mean to a reasonable juror. (Francis v. Franklin, supra, 471 U.S. at pp. 315-316 [85 L.Ed.2d at p. 354]; People v. Bunyard (1988) 45 Cal. 3d 1189, 1230 [249 Cal. Rptr. 71, 756 P.2d 795].) A technically correct instruction will nevertheless be considered erroneous if in light of other instructions it could cause a reasonable jury to believe that it was required to find against the defendant on an essential element of the offense (Sandstrom v. Montana (1979) 442 U.S. 510, 524 [61 L. Ed. 2d 39, 51, 99 S.Ct. 2450]), that the burden had shifted to the defendant with respect to an essential element of the offense (ibid.), or that its consideration of all of the evidence with respect to an essential element of the offense was restricted (Martin v. Ohio, supra, 480 U.S. at pp. 233-234 [94 L.Ed.2d at p. 274]).
[1c] Upon consideration of the instructions as a whole we do not find that a reasonable jury would have been misled by the court's special instruction. The court fully instructed the jury with respect to each element of the charged offenses and lesser-included offenses and with respect to every defensive matter raised. The instructions made it clear that the prosecution bore the burden of proof with respect to all issues and that a reasonable doubt as to any issue would preclude a finding against defendant on the charge to which that issue related. The court's special instruction merely informed the jury that there was no issue presented with respect to excuse or justification; it did not tend to operate as the functional equivalent of a directed verdict with respect to any of the charges of which defendant stands convicted.
Moreover, in Connecticut v. Johnson, supra, 460 U.S. at page 87 [74 L.Ed.2d at pages 834-835], the court held that a defendant may be found to have conceded the issue in question by the nature of the defense presented or by other conduct, in which event an error of this nature would not be prejudicial. In this case defendant conceded the unlawfulness of the use of violence against the victims by express concession as well as by failing to raise excuse or justification in any manner. Any error in the court's special instruction was therefore harmless.
The judgment is modified to provide that defendant shall serve only one enhancement for the use of a firearm pursuant to Penal Code section 12022.5. As modified and in all other respects the judgment is affirmed. The trial court is directed to forward an amended abstract of judgment to the Department of Corrections.
Scotland, J., and Nicholson, J., concurred.
FN *. Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II-VIII.
FN 2. For example, homicide done under a valid public authority, such as execution of a death sentence or killing an enemy in time of war, would not be unlawful. (See Perkins & Boyce, Criminal Law (3d ed. 1982) p. 1093.) Under appropriate circumstances, homicide committed in defense of habitation or of other persons or to suppress a riot or to capture a fleeing felon would not be unlawful. (Pen. Code, §§ 196-198.) In very limited circumstances consent or condonation will render lawful that which otherwise would constitute unlawful homicide. (Pen. Code, § 187, subd. (b).) Excuse or justification may be raised in other forms depending upon the circumstances of a particular case.
FN *. See footnote, ante, page 1148.


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G.R. No. 146225 - NASIPIT LUMBER COMPANY, ET AL. v. NATIONAL ORGANIZATION OF WORKINGMEN (NOWM), ET AL.
NASIPIT LUMBER COMPANY and PHILIPPINE WALLBOARD CORPORATION, Petitioners, v. NATIONAL ORGANIZATION OF WORKINGMEN (NOWM) AND ITS 30 MEMBERS, NAMELY: JUANITO LUNETA, MAXIMO SUSE, MARIANO SAJOR, CELSO LADANAN, CATALINO PAYOT, LOPE CABELAN, MANUEL FELIAS, ERNESTO DALAGUAN, ROMEO FLORES, SOPIO AQUILAM, JESUS LEGASPI, RAMONITO ROBLES, JESUS DANOCO, ARESTON LICAYAN, LORETO NAMOCA, ERNESTO GALOPE, SANTIAGO COCAMAS, RAULITO DALAGUAN, ROGELIO FELIAS, LEONILO OLEVER, ALEX CERO, TEODOLFO VILLANUEVA, SOPRONIO RANARION, ANGELO AWA, GERARDO CUHIT, ERNESTO AMORES, ROGELIO PAQUIRA, ALEJANDRO LOQUIAS, ARSENIO AMORA and AGAPITO YBANEZ, Respondents.
This is a Petition for Review of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 50579 affirming, with modification, the Decision2 of the National Labor Relations Commission (NLRC), in NLRC Case No. M-003556-97 and the resolution3 of the appellate court denying the petitioners' motion for reconsideration thereof for lack of merit.
Petitioner Nasipit Lumber Company (Nasipit) and its affiliate, petitioner Philippine Wallboard Corporation (Wallboard), employed, among others, thirty (30) individual workers at the Nasipit Processing Plant. These workers were members of the respondent, the National Organization of Workingmen (NOWM), which belonged to the Western Agusan Workers Union (WAWU-ALU-TUCP) which, in turn, was the certified bargaining unit in the said plant.
Nasipit applied with the National Wage and Productivity Commission (NWPC) for exemption from compliance with Wage Order Nos. RT-01 and RT-01-A. The NWPC rendered judgment on March 8, 1993 denying the application. The corporation challenged the said decision in this Court, and the case was docketed as G.R. No. 113097.
On January 29, 1996, the officers of respondent NOWM, WAWU-ALU-TUCP, representatives of the Department of Labor and Employment (DOLE) and the National Conciliation Mediation Board (NCMB) met and discussed the complaint. The NOWM demanded for the balance of the health bonus of its members for the year 1994, 13th month-pay, and the remaining backlog payables amounting to P1,800.000.00. Although no agreement was arrived at by the conferees, the petitioners granted financial assistance to their rank-and-file employees, security guards and company staff on February 9, 1996.
The petitioners were informed of the said resolution in a Letter5 dated February 19, 1996.
It appears that a Consolidated Statement of Income and Expenses was filed with the Bureau of Internal Revenue (BIR) on April 15, 1996 showing that petitioner Nasipit had a net loss of P13,489,031.00 in its operations for the year 1994, while its affiliate, petitioner Wallboard had a net loss of P8,754,366.00. It also appears that a Consolidated Statement of Income and Expenses was filed with the BIR on April 15, 1996 showing that for the year ending 1994, Wallboard incurred a net loss of P970,470.00 and for the year ending 1995, it incurred a net loss of P11,236,503.00.
In an Order dated September 4, 1996, the Regional Director directed petitioner Nasipit to pay to its employees P7,629,490.00 as unpaid wages. Petitioner Nasipit filed a motion for reconsideration which was denied. It appealed the Order to the DOLE, which was docketed as ROXIII-CI-002.
On October 24, 1997, the Secretary of Labor and Employment issued an Order7 directing the Regional Director to elevate the entire records of the case to the DOLE, Caraga Regional Office, for appropriate proceedings and computation of the total sum rightly due to the workers.
In the meantime, respondents NOWM and its thirty (30) members filed a complaint on November 18, 1996 against the petitioners for illegal cessation of business operations, non-payment of separation pay, underpayment of salary and salary arrears for one (1) year before the Sub-Regional Arbitration Branch of the NLRC. The respondents claimed that the petitioners terminated their employment on the allegation that the latter's operations were suspended effective January 1996. According to the respondents, they should be reinstated to their former positions, conformably to Article 286 of the Labor Code of the Philippines.
I. THE ISSUE OF ILLEGAL CESSATION OF OPERATIONS AND SEPARATION PAY IS THE SUBJECT OF ON-GOING EGOTIATIONS BETWEEN NALCO & AFFILIATES MANAGEMENT AND WAWU-ALU-TUCP (LOCAL 381-NMR) WHICH IS THE RECOGNIZED COLLECTIVE BARGAINING AGENT OF ALL COVERED WORKERS/EMPLOYEES WITHIN THE NASIPIT PLANT BARGAINING UNIT.
II. THE ISSUE OF NON-PAYMENT OF SALARY DIFFERENTIALS (P13.00 WAGE INCREASE) IS LIKEWISE BARRED BY A PRIOR PENDING ACTION BETWEEN THE SAME PARTIES FOR THE SAME CAUSE OR ISSUES BEFORE THE HONORABLE SUPREME COURT DOCKETED AS G.R. No. 113097 (Nasipit Lumber Co., Inc., et al., Petitioners, v. National Wages and Productivity Commission [NWPC], et al.).
III. THE ISSUE OF SALARY ARREARAGES IS ALSO BARRED BY A PRIOR ACTION BETWEEN THE SAME PARTIES FOR THE SAME CAUSE NOW PENDING BEFORE THE DEPARTMENT OF LABOR AND EMPLOYMENT (DOLE) DOCKETED AS ROXIII-LSED-0963-CI-001 (In the matter of Complaint Inspection of Nasipit Lumber Co., Inc.).
As borne out by the records, respondents did not cause or initiate the cessation or suspension of respondent NALCO's operations. As aptly pointed out by respondents, NALCO desired to operate, but it cannot do so because on 18 February 1997 (sic), on account of a labor dispute, the general membership of WAWU-ALU-TUCP, the recognized CBA representative, approved Resolution No. 02-96 declaring that effective 19 February 1996, "No more rank-and-file workers of the company will report to work x x x."
Complaining union points out, however, that Resolution No. 02-96 was a mere offshoot of the respondents' refusal to pay the complainant's salaries which at the time the Resolution was passed amounted to about P1.8 Million Pesos. This case originally included as one of the causes of action, the non-payment of salaries to members of the complaining union over a period of one (1) year. This was the principal gripe which brought about the approval of Resolution No. 02-96. Incidentally, this claim was dropped by complainants in this case because it was [the] subject of another case pending before the Department of Labor and Employment under ROXIII-LSED-0963-CI-001.
Now, if the workers had not been paid their salaries for one (1) year, they have a justifiable reason not to continue working and opt to be paid their respective separation pay. An engine cannot run without gas, so to say. Similarly, the workers cannot be forced to work on an empty stomach.
We are not convinced. It must be borne in mind that the services of the private respondents were terminated in January 1996, a month before the other rank-and-file employees did not report to work. It seems to us that the petitioners made use of this event in order to avoid the fulfillment of their obligation to the private respondents. Moreover, the petitioners' insistence that the cessation of the operation was due to the union holds no water. As correctly observed by the union, such is a mere offshoot of the petitioners' refusal to make good their obligation to the workers concerned.
The CA cited the rulings of this Court in Industrial Timber Corporation v. NLRC,16 and Sebuguero v. NLRC17 to support their contentions.
The petitioners filed a motion for reconsideration on September 14, 2000, which was denied by the CA per its Resolution dated November 28, 2000.
Hence, the present Petition for Review .
While it may be true that even after six (6) months from January 1996, the individual respondents were without work, it was of their own doing and not that of petitioners. If the individual respondents themselves chose to no longer work pursuant to Resolution No. 02-96, how can their not reporting for work for a period exceeding six (6) months give rise to their being paid separation pay? By awarding them separation pay, the Honorable Court of Appeals placed a premium on the individual respondents' refusal to report for work.
In their comment on the petition, the respondents aver that the petitioners failed to adduce convincing evidence to justify the suspension of their operations. In fact, the respondents assert, the petitioners even gave financial assistance to the rank-and-file employees, security guards, middle managerial employees and the company staff.
The issues raised by the parties in this case are both factual and legal, to wit: (a) whether the petitioners suspended their operations on account of considerable losses incurred in the years 1994 and 1995; (b) whether the respondents were illegally dismissed by the petitioners; (c) whether the respondents are entitled to separation pay; and (d) if in the affirmative, the amount of entitlement of each individual respondent by way of separation pay and other monetary benefits.
(b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision.
We find that, based on the records, the petitioners merely downscaled their operations in 1995, and did not suspend the same because of economic difficulties. The respondents continued to work at the Nasipit Processing Plant although each of them received a monthly pay of only P600.00. The petitioners dismissed the respondents when the latter refused to report for work. We agree with the NLRC and the CA that the petitioners' claim of suspending operations in 1994 and 1995 was merely an afterthought to justify their dismissal of the respondents. It must be stressed that the petitioners obstinately refused to heed and agree to the respondents' just demands to pay their monetary benefits and backlog wages amounting to P1,800,000.00, which ultimately led to the latter's dismissal from employment.
Art. 286. When employment not deemed terminated - The bona fide suspension of the operations of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military service or civic duty shall not terminate employment.
In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty.
Considering the severe consequences occasioned by retrenchment on the livelihood of the employee(s) to be dismissed, and the avowed policy of the State - under Sec. 3, Art. XIII of the Constitution, and Art. 3 of the Labor Code - to afford fall protection to labor and to assure the employee's right to enjoy security of tenure, the Court reiterates that "not every loss incurred or expected to be incurred by a company will justify retrenchment. The losses must be substantial and the retrenchment must be reasonably necessary to avert such losses. Settled is the rule that the employer bears the burden of proving this allegation of the existence or imminence of substantial losses, which by its nature is an affirmative defense. It is the duty of the employer to prove with clear and satisfactory evidence that legitimate business reasons exist to justify retrenchment. Failure to do so "inevitably results in a finding that the dismissal is unjustified." And the determination of whether an employer has sufficiently and successfully discharged this burden of proof "is essentially a question of fact for the Labor Arbiter and the NLRC to determine."
In the present case, the petitioners failed to prove with convincing evidence a bona fide suspension of their operations in 1994, 1995 and even in January 1996 due to acute economic losses in their operations.
First. The only evidence adduced by the petitioners that they sustained huge losses in their operations for 1994 and 1995 were the xerox copies of unsigned and unverified Comparative Statements of Income and Expenses for the Years Ended December 31, 1994 and 1995 filed with the BIR only on April 15, 1996. The petitioners failed to submit any other documents to support the said Comparative Statements. Thus, such statements are barren of probative weight.
Second. Despite their alleged huge losses in 1994 and 1995, the petitioners continued employing the respondents, although each of them received a monthly salary of only P600.00.
Third. The petitioners' claim that they were ready to resume operations in January 1996 were it not for the respondent union's issuance of Resolution No. 02-96 belies their contention that they sustained huge losses in their operations in 1994 and 1995. There is no evidence on record that the petitioners ever gave notice to their employees of the suspension of their operations, and, thereafter, that they were ready to resume such operation in January 1996.
Fourth. The CA declared that the petitioners even gave the following benefits to their employees on February 9, 1996; financial assistance of P300.00 for the rank-and-file employees; P400.00 for the security guards; P500.00 for middle managerial employees; and P750.00 for the company staff. The petitioners admitted these findings of the appellate court.
We note that the award of separation pay by the CA to the respondents was without prejudice to the ruling of this Court in Nasipit Lumber Company, et al. v. National Wages and Productivity Commission, et al..31 However, this Court, as early as April 27, 1998, had already promulgated its decision dismissing the petition in the said case.32 The decision of the CA has to be modified.
IN LIGHT OF THE FOREGOING, the petition is DENIED for lack of merit. The decision of the Court of Appeals is AFFIRMED with MODIFICATION. The petitioners are DIRECTED to pay, jointly and severally, each of the individual private respondents separation pay equivalent to one-half (1/2) month pay for every year of service. No costs.
Puno, (Chairman), Austria-Martinez, TINGA, and Chico-Nazario, JJ., concur.
1 Penned by Associate Justice Delilah Vidallon-Magtolis, with Associate Justices Eloy R. Bello, Jr. (retired) and Elvi John S. Asuncion, concurring.
2 RAB-10-11-00322-96 for "illegal cessation of business operations, non-payment of separation pay, underpayment of salary, salary differentials, salary arrears."
4 CA Rollo, p. 26.
10 CA Rollo, Annex "F."
16 243 SCRA 200 (1995).
17 248 SCRA 532 (1995).
27 Industrial Timber Corporation v. NLRC (5th Division), 273 SCRA 200 (1997).
29 287 SCRA 420 (1998).
30 J.A.T. General Services, et al. v. NLRC, G.R. No. 148340, January 26, 2004.
31 289 SCRA 667 (1998).

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We all understand the definition of “net mineral acre.” It is derived by multiplying a fractional interest in minerals by the acreage over which the interest is owned. “Net royalty acre,” however, has two definitions. It should, therefore, be defined in any legal document in which it appears.
The Texas Supreme Court adopted the first definition in the following dicta in Temple-Inland Forest Products v. Henderson Family Partnership, 958 S.W.2d 183, 185 (Tex. 1997): “The owner of 50 royalty acres out of a 32,808.5 acre tract is entitled to receive 50/32,808.5 of royalty, not a 50/32,808.5 fixed royalty.” The Court cited Williams & Meyers, supra, for its proposition.
An earlier case also indicated that a Texas court would use the first definition. Abell v. Grove, 152 S.W.2d 885 (Tex. App. – El Paso [8th Dist.] 1941) involved royalty due under a relinquishment act lease. In that case, Grove, as owner of the soil, leased a 240-acre tract. He then conveyed to Abell an undivided 1/6 of the 1/16 royalty due to Grove under the lease, “the same equal to 40 undivided royalty acres….” (One-sixth of 240 is 40.) Rejecting Abell’s contention that 40 royalty acres entitled him to 1/6 of the 1/8 lease royalty, the court said: “This is in the face of the expressed provision in the conveyance that ‘one-sixth of the one-sixteenth interest is equal to 40 acres.’ There is an entire absence of repugnancy in the clauses of the deed [emphasis added].” Id. at 886. So, in this 1941 case, a Texas court held that a 40 net royalty acre interest in a 240-acre tract entitled its owner to a portion of a 1/16 royalty rather than a 1/8 royalty.
On the other hand, the Texas case of Tyler v. Bauguss, 148 S.W.2d 912 (Tex. App. – Dallas [5th Dist.] 1941) held that a conveyance of 20 royalty acres out of a 200-acre tract conveyed 1/80 of production. (Twenty acres divided by 200 acres times 1/8 equals 1/80.) Because the court held that the deed conveyed 1/80 of production rather than 1/10 of lease royalty, it seemed to use the second definition of net royalty acre. At the time, the lands were subject to a lease which reserved a 1/8 royalty.
The second definition, that a net royalty acre is 1/8 of production from one acre of land, is also used widely.
In Dudley v. Fridge, 443 So.2d 1207 (Ala. 1983), Dudley, one of the plaintiffs, contracted to sell a 5 net royalty acre interest in 50 net mineral acres to the defendants. But, when the Royalty Deed was executed, it conveyed a 1/10 royalty interest 1. At the time of the sale, the tract was covered by a lease carrying a 1/8 royalty [first lease]. The plaintiffs later executed an oil and gas lease which carried a 1/4 royalty [1/4 royalty lease].
Thibodeaux v. American Land & Exploration, Inc., 450 So.2d 990 (La. App. 3rd Cir. 1984) is of similar import. Thibodeaux sold one-half his one-half royalty interest in a 29.5-acre tract to American Land. The deed contained the following language: “in no event shall the royalties conveyed herein equal less than 11.8 royalties acres.” The lands were subject to a lease carrying a 1/5 royalty. The court explained in a footnote that American Land “calculated that the 29.5 acres owned by Thibodeaux and his children contained 47.2 royalty acres. In his deed to American Land, Thibodeaux transferred one-half of his one-half, or one-fourth of the total (or 11.8) royalty acres.” (A 20% royalty is 1.6 times a 1/8 royalty. 1.6 times 29.5 geographic acres equals 47.2 royalty acres. One-fourth of 47.2 royalty acres is 11.8 royalty acres.) The court found in favor of American Land, holding that when American Land purchased a 1/4 interest in royalty in a 27.5-acre tract covered by a lease carrying a 1/5 royalty, it purchased 11.8 net royalty acres. As in Dudley v. Fridge, the court increased the tract acreage to a fictional number to keep the net royalty acreage constant to reflect a 1/8 royalty.
Other cases stating that a net royalty acre is 1/8 of production from one acre of land include Melancon v. Cheramie, 138 So.2d 138, 145 (La. App. 1 Cir. 1962) (“As stated by counsel for plaintiff-appellant in his brief, ‘A ROYALTY ACRE is that royalty interest in production attributable to one acre under a 1/8th mineral lease.”); and Payne v. Campbell, supra. See also Castle v. Harkins & Company, 464 So.2d 513 (Miss. 1985).
The term “net royalty acre” should not be used as if all parties agree on its meaning. Each instrument or agreement that uses the term should define the term so that all parties understand its meaning.
1 The parties appear to have made no contention that the Royalty Deed conveyed a royalty of 1/10 of gross production.

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Adam KatzIf revocable trusts are not irrevocable, could irrevocable trusts be revocable? Under the decanting statute in New York Estates, Power and Trusts Law (“EPTL”) § 10-6.6(b), trustees and beneficiaries of an irrevocable trust can decide to modify the trust without the need for court intervention. By “decanting a trust,” trust assets from the irrevocable trust are poured into another trust, whose terms may be different from the first trust, providing many benefits which once seemed unattainable. The decanting statute is applicable to inter vivos and testamentary trusts. The “new” trust designated to receive the trust assets may be formed anew or may be a trust formed under the old instrument. To be sure, not every irrevocable trust can be decanted, nor can all of the terms and objects of the trust be changed, as we shall see.
One difficult issue which arises due to the immutable nature of irrevocable trusts is the choice of applicable law. Circumstances might have changed since the trust instrument was drafted, whereby the original choice of law may no longer be the optimal choice to facilitate the goals of the trust. One experienced in drafting with foresight of such a scenario might insert language into an irrevocable trust which allows for certain amendments at a later date, so that the trust need not rely upon the statutes of a particular state. The New York decanting statute precludes the need for such language, allowing the trust terms to be modernized and placed in conformity with the present needs of the settlor or beneficiaries of the trust. Matter of Riese, 627 NYS2d 1028 (Surr. Ct. NY County 1995).
Significant alteration is permitted within the guidelines of the decanting statute. Decanting allows one to not just make alterations to correct drafting errors, but even to change the type of trust. An irrevocable trust which was a grantor trust can be decanted into a non-grantor trust, or vice versa, to provide fiduciary income tax benefits. Decanting can assist the funding of life insurance trusts, especially when there are multiple trusts, some of which have liquidity, while others have obligations, to strategically pour them into one trust. Under some circumstances, a per stirpes dispositive provision may be switched to a per capita distribution division. Spendthrift provisions may be added to, or removed from, the trust instrument. Even extending the termination date of trusts may be possible. In re Alfred Hazan, NYLJ June 19, 1999, p. 27, col. 3.
Decanting a trust can be an instrumental means of improving the trust’s governance structure. The statute allows for substantial room to alter the trust provisions pertaining to the authority of the trustees. The new trust need not have the same trustees as the old trust. The optimal management of the trust might require the adjustment of certain administrative terms in order to aid the fiduciaries’ performance. For example, trustees are responsible for meeting a standard with regard to investing and managing trust assets. By appointing an investment director to be in charge of this aspect of trust management, the trust funds can be better managed and the trustee will be less exposed to personal liability for such investment decisions. The trust can even be poured into separate trusts, where based upon risk and other investment factors, beneficiaries can have the new trusts better suit their financial needs. However, court approval is required to increase the amount of trustee commissions. EPTL § 10-6.6(c).
The NY EPTL § 10-6.6(b)(1) lists four statutory prerequisites which offer much direction, but also leave many questions unanswered. The first prerequisite in order to qualify for this decanting statute is that the trustee must have absolute discretionary distribution authority to invade the principal of the trust and to distribute the trust property. Therefore, this requirement will not be met where the trustee’s power to distribute the trust corpus is limited by an ascertainable standard. For example, if the trustee’s distribution authority is restricted to the health, education, maintenance, support or general comfort of the beneficiary, the trust cannot be decanted under the New York decanting statute. In the Matter of the Estate of Gerald Mayer, Deceased, 176 Misc. 2d 562 (Surr. Ct. New York County, 1988).
A second prerequisite to decant the trust mandates that the exercise of the power cannot reduce any fixed income interest of any income beneficiary of the trust. This means that income beneficiaries who were specifically identified to receive income for a set amount of time must continue to receive the trust income, as defined under the terms of the original trust. The beneficiaries’ interests probably do not have to be identical in both trusts, but this point has been argued in both directions.
The third criteria requires that the exercise of the trustee’s power be in favor of one or more proper objects of the exercise of the power. Since the power to invade the trust res is analogous to a power of appointment, the powers of appointment are also limited by the terms of the underlying trust agreement. Therefore, a donee of a power of appointment can only appoint someone who is within the class of permissible appointees, as defined by the terms of the trust. However, this is not always a hard and fast rule. In a case where the trustee has the power to distribute all of the trust property to one beneficiary, that beneficiary can be given the power of appointment to enlarge the class of permissible appointees, thereby including persons whom were once outside the reach of the irrevocable trust. It is unclear to what extent the nature of the beneficiaries’ interests in the old trust can be changed, especially when dealing with the rights and order of distributions of a remainderman.
The last prerequisite in the statute provides that the new trust cannot contain certain provisions which violate the limitations of EPTL § 11-1.7. EPTL § 11-1.7 places limitations on the powers and immunities of testamentary trustees which run contrary to public policy. Thus, the trustee can not be exonerated from his fiduciary liability for failure to exercise reasonable care, diligence and prudence. In addition, the trustee can not be given the power to “make a binding and conclusive fixation of the value of any asset for purposes of distribution, allocation or otherwise.” Id.
As with the drafting of most trusts, tax planning should be an integral part of the consideration of the trustee with respect to decanting. A particularly complex issue is whether extending an irrevocable trust under the New York decanting statute will affect the previous allocation of generation skipping tax (GST) exempt status. There have been numerous private letter rulings and treasury regulations which address this issue, attempting to provide guidance, but the path is currently far from clear. (e.g. Treas. Regs. § 26.2601-1(b)(4), PLR 9848043, 200420011; see also Alan Halperin and Michelle R. Wandler, Decanting Discretionary Trusts: State Law and Tax Considerations, 29 Tax Management Estates, Gifts & Trusts Journal, 219, 221 (2004)).
Management Estates, Gifts & Trusts Journal, 219, 221 (2004)).
Decanting an irrevocable trust should not incur income tax as it is not a recognition event. The transfer of assets from one trust to another is not a sale or exchange of property, nor is the property received materially different from that which was given. Treas. Regs. § 1.1001-1(a). However, if the distribution from the old trust causes there to be a relief of liabilities (e.g. encumbered property) there might be a recognizable gain. Also, if a part of the trust property being transferred is an appreciated asset, and it is being poured into a foreign trust, which is not a grantor trust, such a transfer would be treated as a sale or exchange under § 684 of the IRC.
Decanting a trust has gift and estate tax implications which require careful consideration. One issue is whether the trustee’s exercise of the power should result in a taxable gift to the beneficiary. Assuming the trustee is not a beneficiary, it can be argued that since the gift is initiated by the trustee and because beneficiary consent was not required, this would not qualify as a gratuitous transfer. However, since the beneficiary had expected to receive the gift and failed to object to the transfer of trust assets to the new trust, these two factors support the claim that this would be a taxable gift. To help avoid this issue, under the new trust the beneficiary should be given a limited testamentary power of appointment, making the gift incomplete and not taxable. Altering the terms in the new trust can provide many state tax benefits as well, such as effectively avoiding state fiduciary income tax or limiting exposure to state real property transfer tax.
In conclusion, decanting an irrevocable trust can be a viable solution to many “dead end” predicaments, providing new and alternative options. Just as there are many situations in which decanting a trust can be advantageous, there are many resulting issues and tax concerns that need to be addressed. Utilized appropriately, with the proper tax and estate planning, decanting a trust can be significantly beneficial to trustees, beneficiaries and most important of all, the settlor, whose original wishes can, once again, be realized.
Adam Katz joined Meltzer Lippe in 2008 and is a member of the Trusts and Estates Group. Adam focuses his practice in all aspects of estate planning and asset protection for both individuals and business entities. Adam also concentrates on charitable planned giving, involving private foundations and tax-exempt organizations. Adam’s practice emphasizes strategic tax planning in the areas of trusts and estates, real estate and all types of corporate structures.
3. Recently, in Matter of Mulderig v. NYS Department of Taxation and Finance, 500685, decided 10/30/08, the court held that, there is no tax deadline to the assessment of the New York State tax if based upon failure to report a federal audit change.


“The legislature shall provide for the education of the people of the state and shall establish and maintain a public educational system.” La. Const., art. VIII §1.
“The State Board of Elementary and Secondary Education…shall annually develop and adopt a formula which shall be used to determine the cost of a minimum foundation program of education in all public elementary and secondary schools as well as to equitably allocate the funds to parish and city school systems. … The legislature shall annually appropriate funds sufficient to fully fund the current cost to the state of such a program as determined by applying the [legislatively] approved formula in order to insure a minimum foundation of education in all public elementary and secondary schools. The funds appropriated shall be equitably allocated to parish and city school systems according to the formula as adopted by the State Board of Elementary and Secondary Education, or its successor, and approved by the legislature prior to making the appropriation.” La. Const., art. VIII §13.
In 1988, in Louisiana Association of Educators v. Edward, the Louisiana Supreme Court held that the Legislature has the exclusive authority to determine how much money would be appropriated for the public education system and that the school funding formula, developed by the State Board of Elementary and Secondary Education, provides for the equitable distribution of the money the Legislature chooses to appropriate.
In 1998, in Charlet v. State, a State Appellate Court found that the State’s system of school funding did not violate the equal protection or the education article of the constitution. The Court concluded that the constitution did not require adequate education funding; it only required that the State Board of Elementary and Secondary Education develop and adopt a formula.
In 2005, in Jones v. State Board of Elementary and Secondary Educ., a State Appellate Court again found the funding system to be constitutional despite plaintiffs’ argument that it was deficient because it failed to provide any capital funding for school facilities.
In Berry v. Pastorek in 2011, the U.S. District Court denied the State defendants’ motion to dismiss. Plaintiffs had claimed that as a result of education “reform” in New Orleans following Hurricane Katrina, thousands of students with disabilities were not receiving an education, in violation of the federal Individuals with Disabilities in Education Act (IDEA), Rehabilitation Act, and Americans with Disabilities Act (ADA). The parties negotiated a Consent Judgment, which the Court approved in 2015. Implementation is ongoing.
In 2014, in Louisiana Federation of Teachers v. State, the Louisiana Supreme Court held that a State school voucher program violated the constitution by diverting public school funds to nonpublic schools.


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The Complainant is Forideas Pty Limited of Victoria, Australia, represented by Sipara, United Kingdom of Great Britain and Northern Ireland.
The Respondent is Movember Organization of Montreal, Quebec, Canada.
The disputed domain name <movemberorg.com> is registered with FastDomain, Inc. (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 2, 2013. On August 6, 2013, the Center transmitted, by email to the Registrar, a request for registrar verification in connection with the disputed domain name. On August 6, 2013, the Registrar transmitted, by email to the Center, its verification response confirming that the Respondent is listed as the registrant and providing contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 22, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was September 11, 2013. No response was timely filed. Accordingly, the Center notified the parties of the Respondent’s default on September 13, 2013. On September 16, 2013, the Center received a communication, as described below, from the Respondent. On September 17, 2013, the Center acknowledged receipt of this communication.
The Center appointed Peter L. Michaelson as the sole panelist in this matter on September 19, 2013. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
As reflected in the registration record for the disputed domain name in the Registrar’s WhoIs database (a copy of that record appears in Annex 1 to the Complaint) and confirmed by the Registrar, the disputed domain name was both created and registered to the Respondent on October 30, 2012, and is set to expire on October 30, 2013.
This mark is registered for use in connection with: “business management and administration; charitable services in this class including business management and administration; advertising and marketing, including of charities, charitable fundraising and events; business research; marketing research; retaining of goods, including retailing of magazines, brochures, printed matter and publications, paper and cardboard goods, photographs, posters, educational and training materials, playing cards, memorabilia, clothing, footwear and headgear” all in international class 35; “Fund raising; charitable fund raising and collections; funding of research” in international class 36; “Entertainment services; organizing events for entertainment purposes; organising of entertainment and social events; event management; publication services, including electronic publication services; electronic publication of information about a wide range of topics, including online and over a global computer network; education and training; health education; organizing seminars and conferences” all in international class 41; :Scientific, medical and health research; organization and co-ordination of research projects in the fields of science, medicine and health” in international class 42; and “Medical and health services; development, implementation and provision of health programmes, including prevention and intervention programmes; providing information relating to health and medicine; providing health services and medical services information” in international class 44.
This mark is registered for use in connection with: “A charity event held each November that promotes male health awareness, raises funds for cancer research by participants growing moustaches” in international class 36.
This mark is registered for use in connection with the following goods: “Magazines, brochures, printed matter, namely books, brochures, greeting cards, magazines, newspapers, post cards; men's and women's clothing, namely, pants, shirts, shorts, jogging suits, sweaters, sweat shirts, sweat pants, vests, leggings, tights, dresses, jumpers and blouses; outerwear, namely, jackets, coats, sport coats, parkas, rainwear, raincoats; footwear, namely shoes and rain boots; headwear, namely hats, caps, visors”; and the following services: “Charitable fundraising; charitable services namely business management and administration; organizing events for entertainment purposes, namely Gala parties, launch/media/sponsor functions, concerts, productions, sporting events, surf, skate and snow competitions, office functions; organizing of entertainment and social events, namely Gala parties, launch/media/sponsor functions, concerts, productions, sporting events, surf, skate and snow competitions, office functions; charitable event management”.
This mark is registered for use in connection with: “Magazines, brochures, newsletters and books in the field of charitable organizations and causes and fundraising events; posters; postcards; drink coasters made of paper” all in international class 16; “Clothing, namely, shirts, t-shirts and underwear; footwear; headwear, namely hats and baseball caps” all in international class 25; “Charitable services in this class including business management and administration, namely developing and coordinating fundraising events for charitable organizations” in international class 35; “Charitable fundraising” in international class 36; and “Entertainment services, namely organizing and conducting events in the nature of gala parties and men’s facial hair fashion competitions” in class 41.
The Complainant is affiliated with various charities around the world to raise awareness of men’s health issues such as prostate cancer, testicular cancer and depression. The Complainant raises funds for those charities by encouraging men to grow a moustache for the whole month of November and be sponsored for doing so. The Complainant licenses its MOVEMBER marks to those charities.
Since the start of the Complainant’s first charitable organization in Melbourne, Australia in 2003, the Complainant has grown to where, in 2012, it was active in 21 countries and has run formal campaigns in: the United Kingdom, United States, Canada, Australia, New Zealand, South Africa, Ireland, Finland, the Netherlands, Spain, Denmark, Norway, Belgium, the Czech Republic, Austria, France, Germany, Sweden, Switzerland, Hong Kong and Singapore.
The Complainant also has supporting organizations in Russia, United Arab Emirates, Hong Kong, Brazil and India. In 2012 the entire global Movember campaign run by the Complainant raised over GBP 90.5 million (as reported in copies, of web pages taken from the Complainant’s web site, appearing in Annex 5 to the Complaint).
The Complainant also licenses its MOVEMBER marks to appear on merchandise created by various third parties, including Links of London, Marshall Amplification, Kent Brushes, Toms Shoes and Lucky Seven. Links to these products appear on the Complainant’s website (as shown in copies of web pages from that site which appear in Annex 7 to the Complaint).
Currently, the disputed domain name resolves to a website which is seemingly designed to raise awareness about men’s cancer, and raises funds in support of that cause (see a copy of the home page of that site appearing in Annex 8 to the Complaint). The site contains no substantive content under the “About Us” and “Photos” categories, and very little substantive content elsewhere other than photographs of men with moustaches. Clicking on “Merchandise” brings a pop-up (a copy of which is provided in Annex 9 to the Complaint) which encourages the public to “Buy your MOVEMBER T-Shirt”, with “$5 from each sale will be donated to Prostate Cancer Canada”. Prostate Cancer Canada is a Canadian charity affiliated with the Complainant. When an Internet user clicks on the “Donate” button, the site redirects the user’s browser to a PayPal page (a print-out of which is provided in Annex 10 to the Complaint) where donations are solicited for “movemberorg.com donate”. The Complainant has been in contact with Prostate Cancer Canada - one of the charities licensed by and affiliated with the Complainant. To the best of both of their knowledge, neither the Complainant nor Prostate Cancer Canada has ever received any charitable donations from the Respondent.
The Complainant contacted the Respondent on May 31, 2013 and set forth its concerns about the disputed domain name and links on its site to Prostate Cancer Canada and to the Complainant. The Respondent refused to provide information about those links stating that they “have no obligation to provide you with any information regarding our fundraising events”. Further, the Respondent has invited the Complainant to “consider a more serious and reasonable offer” for the domain name, despite the Complainant having already offered USD 50 to the Respondent towards the administrative costs of registering a new domain name. A copy of the chain of correspondence between the parties appears in Annex 11 to the Complaint.
The Complainant contends that the disputed domain name is confusingly similar to the Complainant’s mark MOVEMBER as the name contains that mark in combination with the term “org”, where the latter, being identical to a well-known generic Top Level Domain (.org), fails to add any distinctiveness whatsoever to the name sufficient to distinguish it from the mark so as to mitigate any resulting confusion of Internet users.
First, before the Respondent received any notice of this dispute, the Respondent has not used or made demonstrable preparations to use, the disputed domain name in connection with an bona fide offering of goods or services. In that regard, the name currently resolves to a website which seems to raise awareness about men’s cancer, and, by so doing, raise funds in support of that cause (see a copy of the home page of that site appearing in Annex 8 to the Complaint). While it specifically states that funds are being raised for a Canadian charity, Prostate Cancer Canada (which is affiliated with the Complainant), neither that organization nor the Complainant itself has yet to receive any funds from the Respondent. Accordingly, this solicitation is not bona fide.
Second, while the Respondent’s web page clearly shows the Complainant’s mark MOVEMBER, the Complainant has never authorized the Respondent to use any of the Complainant’s MOVEMBER Marks.
Third, the Respondent has not been commonly known by the disputed domain name.
Fourth, the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue. Specifically, the offering for sale of t-shirts clearly demonstrates that the Respondent is using the disputed domain name to misleadingly divert consumers to its website at which it can generate commercial revenue through such sales.
Specifically, the Respondent knew of the existence of the Complainant and its MOVEMBER marks at the time the Respondent registered the disputed domain name. This knowledge is clearly evidenced by the content of the Respondent’s web site being exclusively directed to raising funds for men’s health charities by encouraging men to grow of a moustache during the month of November - which is the Complainant’s primary mode of operation. In light of exclusive trademark rights residing in the Complainant and the Complainant’s mode of operation - of which obviously the Respondent was well aware at the time it registered the disputed domain name, the Respondent’s only intention in having done so was to cause confusion of Internet users.
Through causing confusion, the Respondent is attempting to attract Internet users to its website to encourage them to purchase goods or make donations (to a recipient which is not clearly an authorized charitable cause) by suggesting that the Complainant endorses the Respondent’s website and the products sold on the Respondent’s website - when, in actuality, no such endorsement exists. This confusion is accentuated by the Respondent’s use of a moustache logo on its website and by suggesting that money from purchases of merchandise purchased through the site will be donated to charity. These further enhance the impression in the minds of Internet users that the Respondent’s website is associated with or endorsed in some fashion by the Complainant.
“Hi […] what is there to answer i`m keeping this domain and there is no way that movember.com is going to get it.
The Respondent’s communication on September 16, 2013 does not constitute a substantive response as required under paragraph 5 of the Rules and the Panel finds that there are no exceptional circumstances. Accordingly, the Panel will ignore this communication and will proceed in the case of default. Hence, under paragraphs 5(e), 14(a) and 15(a) of the Rules, the Panel is directed to decide this administrative proceeding on the basis of the Complainant’s factual representations as set forth in the Complaint, all of which are undisputed.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s MOVEMBER marks.
From a simple comparison of the disputed domain name to the Complainant’s mark MOVEMBER, no doubt exists that the disputed domain name is confusingly similar to the Complainant’s marks. The primary difference between the disputed domain name and the mark MOVEMBER is appending the term “org” to form a separate corresponding composite term “movemberorg” along with, secondarily, appending the generic Top-Level Domain (“gTLD”) “.com” to that term to form the disputed domain name, with the last addition being irrelevant in assessing confusing similarity or identity under paragraph 4(a) of the Policy and thus ignored.
It is now very well-established in UDRP precedent, including numerous decisions previously rendered by this Panel, that a minor variation, such as adding a short letter or number group, or even generic or highly descriptive words, or geographic identifiers, such as a country name, to a mark, is usually insufficient in and of itself, when used in forming a domain name that results from modifying the mark, to confer requisite and sufficient distinctiveness to that name to avoid user confusion. Here, adding a generic term, that being the “org” - which is a well-known generic Top Level Domain, in the manner which the Respondent specifically did, to the mark MOVEMBER clearly resulted in such a minor variation. See, e.g., AlgaeCal Inc. v. AlgaeCal Fraud, WIPO Case No. D2013-1248; General Motors LLC v. Carol Schadt, WIPO Case No. D2012-2106; National Westminster Bank plc v. Steve Mart, WIPO Case No. D2012-1711; Tommy Bahama Group, Inc. v. Berno Group International, WIPO Case No. D2012-0531; National Association of Realtors v. Hammerberg & Associates, Inc., WIPO Case No. D2012-0075; Space Needle LLC v. Erik Olson, WIPO Case No. D2011-0931; Oakley, Inc. v. Kate Elsberry, Elsberry Castro, WIPO Case No. D2009-1286; Clearwire Legacy, LLC v. Leon Ganesh, WIPO Case No. D2010-0148; Burberry Limited v. Domain Admin, WIPO Case No. D2009-0703; Krispy Kreme Doughnuts, Inc. v. John Sharp, WIPO Case No. D2009-0099; MasterCard International Incorporated v. Global Prepaid, WIPO Case No. D2008-2008; HRB Innovations Inc., Express Tax Service Inc. v. Calvin Brown, WIPO Case No. D2008-1072; Dreamworks Animation, LLC v. Creahq, Mike Furlong, WIPO Case No. D2008-0505; Marvel Manufacturing Company Inc. v. Koba Internet Sales, LP, WIPO Case No. D2008-0265; MySpace, Inc. v. Edwin De Jesus, EDJ Associates Inc., WIPO Case No. D2007-1878; BlackRock, Inc. v. blackrockfinancialservices.com, WIPO Case No. D2007-1627; F. Hoffmann-La Roche AG v. Transliner Consultants, WIPO Case No. D2007-1359; National Football League v. Peter Blucher d/b/a BluTech Tickets, WIPO Case No. D2007-1064; Toilets.com, Inc. v. Rons Porta Johns, WIPO Case No. D2007-0952; Associated Bank Corp. v. Texas International Property Associates, WIPO Case No. D2007-0334; Gerber Childrenswear Inc. v. David Webb, WIPO Case No. D2007-0317; SPX Corporation v. Hevun Diversified Corporation, NAF Claim No. 791657; Google Inc. v. Jennifer Burns, NAF Claim No. 726096; The Cheesecake Factory Inc. and The Cheesecake Factory Assets Co., LLC v. Say Cheesecake, WIPO Case No. D2005-0766; Napster, Inc. v. Giovanni Vinscani, WIPO Case No. D2005-0531; Caesars Entertainment, Inc. v. Nova Internet Inc., WIPO Case No. D2005-0411; Lockheed Martin Corporation v. The Skunkworx Custom Cycle, WIPO Case No. D2004-0824; Lockheed Martin Corporation v. Deborah Teramani, WIPO Case No. D2004-0836; National Collegiate Athletic Association v. Dusty Brown, WIPO Case No. D2004-0491; Lane-Labs USA, Inc. v. Powell Productions, NAF Claim No. 155896; and particularly Cable News Network LP, LLP v. Elie Khouri d/b/a Channel News Network et al., NAF Claim No. 117876.
Therefore, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s MOVEMBER marks. Hence, the Complainant has satisfied its burden under paragraph 4(a)(i) of the Policy.
The Complainant has never authorized the Respondent to utilize any of the MOVEMBER Marks nor does the Complainant apparently have any relationship or association whatsoever with the Respondent. As such, any use to which the Respondent were to put the Complainant’s mark MOVEMBER or one confusingly similar thereto in connection with the identical or even similar goods and services to those currently provided by the Complainant, in circumstances as are present here, may violate the exclusive trademark rights now residing with the Complainant. See, e.g., AlgaeCal; General Motors, National Westminster, Amy Stran v. EzDomainSearch.com, Juan Curtis, WIPO Case No. D2011-1710; Tommy Bahama, Space Needle, Oakley, Burberry, HRB Innovations Inc., Dreamworks, MySpace, Blackrock, F. Hoffmann-La Roche AG, National Football League, Toilets.com, Inc., and Associated Bank, all cited supra; also Starline Publications, Inc. v. Unity, WIPO Case No. D2008-1823; GoDaddy.com, Inc., v. GoDaddysDomain.com, Clark Signs, Graham Clark, WIPO Case No. D2007-0303; Citgo Petroleum Corporation v. Richard Antinore, WIPO Case No. D2006-1576; New Destiny Internet Group, LLC and Xplor Media, Inc. v. SouthNetworks, WIPO Case No. D2005-0884; The Cheesecake Factory Inc., Napster and Caesars Entertainment, Inc., supra; Pelmorex Communications Inc. v. weathernetwork, WIPO Case No. D2004-0898; Sybase, Inc. v. Analytical Systems, WIPO Case No. D2004-0360; Caesars World, Inc. and Park Place Entertainment Corporation v. Japan Nippon, WIPO Case No. D2003-0615; Leiner Health Services Corp. v. ESJ Nutritional Products, NAF Claim No. 173362; MPL Communications, Limited et al v. 1WebAddress.com, NAF Claim No. 97092; Treeforms, Inc. v. Cayne Industrial Sales, Corp., NAF Claim No. 95856; and America Online, Inc. v. Xianfeng Fu, WIPO Case No. D2000-1374. Consequently, in this Panel’s view, the Respondent could not legitimately acquire any public association between itself and the mark MOVEMBER or even any mark similar thereto, at least for the goods and services provided by the Complainant under its marks.
Further, there is absolutely no evidence of record that the Respondent has ever been commonly known by the disputed domain name or more generally the mark MOVEMBER. Nor could the Respondent likely ever become commonly known by either the disputed domain name or the mark without infringing on the exclusive trademark rights of the Complainant. This is so in light of the Complainant’s exclusive trademark rights which date back some six years (in Canada) prior to when the Respondent registered the disputed domain name in 2012 and the reputation which the Complainant has gained in its MOVEMBER marks ever since. See, e.g., General Motors, National Westminster, Tommy Bahama, Amy Stran, Space Needle, Oakley, Burberry, Starline Publications, HRB Innovations Inc., MySpace and Treeforms, Inc., all cited supra. Hence, the Respondent does not fall within paragraph 4(c)(ii) of the Policy.
Further, as the Respondent’s website is clearly engaged in soliciting commercial sales of clothing, its use of the disputed domain name does not constitute a legitimate noncommercial or fair use of any of the disputed domain name sufficient to bring the Respondent within the ambit of paragraph 4(c)(iii) of the Policy.
As such, based on the evidence before the Panel, the Respondent does not fall within any of paragraphs 4(c)(i)-(iii) of the Policy. There is no evidence that the Respondent in any other way has rights or legitimate interests in the disputed domain name.
The Panel believes that the Respondent was very well aware of the Complainant and its mark MOVEMBER when the Respondent registered the disputed domain name. Yet, in spite of that knowledge, the Respondent intentionally chose and registered the disputed domain name to opportunistically exploit the Complainant’s reputation through the potential of that domain name to generate confusion of Internet users for the Respondent’s eventual pecuniary benefit.
This exploitation is clearly evident from the Respondent’s ensuing actions.
The Respondent adopted basically the same operational business model as the Complainant uses: soliciting funds, including through an effort to encourage men to grow moustaches during the month of November, to raise awareness of men’s health issues, particularly prostate cancer. In doing so, the Respondent incorporated considerable substantive content on its website, including the Complainant’s mark MOVEMBER together with depiction of a moustache and pictures of various men with moustaches, that directly mimicked the Complainant’s business model. This, in turn, conveyed a rather distinct and compelling, but totally erroneous, impression in the minds of Internet users that the Respondent’s website was affiliated, related or endorsed in some manner with the Complainant’s website and was raising money for a legitimate charity, specifically Prostate Cancer Canada. Thus, those Internet visitors who sought the Complainant’s website but instead were diverted to the Respondent’s website likely thought that, through their T-shirt purchases, they were benefiting Prostate Cancer Canada. This impression was reinforced by a representation on the Respondent’s website which expressly stated that a portion of the proceeds of each sale would be donated to Prostate Cancer Canada. However, despite that very representation, Prostate Cancer Canada never received any funds whatsoever from the Respondent. The Panel infers, from the lack of any substantive response, that some sales actually occurred through the Respondent’s website which yielded sales proceeds, a portion of which should have been directed as donations to that charity. However, the Respondent evidently directed those donations elsewhere and in a manner that ultimately yielded some financial benefit to the Respondent.
Consequently, the Panel believes that the Respondent would not have chosen to register a domain name that includes the Complainant’s mark MOVEMBER if the Respondent’s intention from the onset was not to exploit the reputation and goodwill of that mark for its own financial benefit. There is no plausible explanation from the evidence of record - particularly in light of a lack of any substantive response - that would suggest otherwise.
Accordingly, under paragraphs 4(i) of the Policy and 15 of the Rules, the Panel grants the relief sought by the Complainant. The disputed domain name <movemberorg.com> is ordered to be transferred to the Complainant.

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