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The Truth In Music Bill was created to protect the artists from Identity theft and to protect the Consumer from being mis-lead to believe they are seeing the legendary artists that made the hits songs famous, when in fact they are not.
The Truth in Music Law is designed to stop unscrupulous concert promoters from deceiving the public with “impostor groups” which have no connection, legal or otherwise, to the authentic groups.Fundamentally, this is a Consumer Protection Bill, as the public pays hard-earned money to see a show and has no idea what it’s even getting.
The bill makes it mandatory for a live performance to include at least one recording member of the group who still has the right to use the group name or Trademark.Otherwise, the act must be billed as a “tribute” or a “salute” so that the public knows what it’s paying for.
An ancillary effect of this bill is to help the authentic artists themselves, who have been struggling for many years to try to stop impostors to no avail. The impostor groups take their jobs, their money, their legacy and their applause.
The bill is necessary because existing law has completely failed to work and impostor groups have multiplied. There may be as many groups of “Coasters” and “Platters” performed nationwide, often at the same time in different venues. The bill shifts the burden to those groups to prove that they actually have rights to the group names.
The specific guidelines the bill provides give clarity to venues as to whom to book, and to the state attorney general’s office as to what constitutes a violation. This is much more efficient and cost-effective than any other way of dealing with this very specialized area.
A great day for Truth in Music!
The Marvelettes saga is over! A “settlement” has been reached which is not exactly a “settlement,” but rather the result of a court opinion that made a trial an academic waste of time and money with a foregone conclusion. This one-sided “settlement” clears the way for Katherine Anderson Schaffner and the Estate of Gladys Horton to register the name “The Marvelettes” on the basis of their superior rights in relation to longtime claimant and impostor group purveyor Larry Marshak. Marshak can now politely call his “product” “A TRIBUTE TO THE MARVELETTES” all in the same size type font, or my favorite, “Larry Marshak’s Tribute to The Marvelettes” in which case “Larry Marshak’s Tribute” has to be at least 75% of the size of “Marvelettes.” There is also some financial consideration involved. The end.
Congratulations to the excellent lawyers at Reed Smith New York who handled this case pro bono, most notably lead litigator Kerren Zinner and her associates Pamela Schoenberg and Andrew Messite. Great thanks also to our longtime friend Darren Cohen who pursued The Marvelettes’ goal at the Patent and Trademark Office for Reed Smith until Marshak filed suit in federal court, and his colleague, the great Steven Getzoff, father of the wondrous musician The-O. It was Steve who first took note of the Truth in Music law when it passed in New York and pressed for Reed Smith to help, pro bono, with the Truth in Music movement. Our gratitude to all at Reed Smith is boundless. And, as always, words can’t express my appreciation for the advice and dedication of my friend and cohort Robert Nathan.
A quick followup to my last e-mail— the long-running show at the Rio Hotel in Las Vegas has been shut down as a result of the preliminary injunction vs. the Larry Marshak “Platters” and continuing woes re his “Marvelettes.” Marshak has appealed the “Platters” decision, but the judge has vast discretion in granting an injunction and in our opinion it’s unlikely she will be overturned. The show could conceivably reopen somewhere, but only with “Tribute” billing, which makes it an entirely different entity. There is at least preliminary reason to celebrate!!!
Simply put, we are winning!
TRUTH IN MUSIC is pleased to announce TWO recent major victories against impostor groups. In the Ninth Circuit, a series of decisions beginning with Reed v. Bennett have finally affirmed that Herb Reed was indeed the rightful owner of The Platters’ mark, as well as “Herb Reed and The Platters” and “Herb Reed’s Platters.” As a result, the Ninth Circuit has begun to enjoin impostor groups using The Platters’ name. Preliminary injunctions have been issued against the Larry Marshak group(s) and the Monroe Powell group. The “Wilson Williams and his Platters'” trademark registration has also been cancelled at the Patent and Trademark Office. The Marshak groups are required to be billed as “Larry Marshak’s Tribute (or Salute) to The Platters” if they wish to perform at all. Watch the show at the Rio Hotel in Las Vegas or this alteration in billing, if in fact this show continues at all. The public will no longer be deceived!
As I’m sure you all know, the great pioneer Herb Reed passed away in early June, but he had the satisfaction of knowing that he had won The Platters’ name and that injunctions against the impostor groups were likely. His corporation, Herb Reed Enterprises, is able to continue his legacy and the legacy of The Platters with the proper quality control that the public deserves. Superb work was done on this caseby Herb Reed’s manager, Fred Balboni, and Herb’s lawyer Eric Sommers, as well as local Nevada counsel John Krieger. We at Truth in Music had always expressed confidence that an earlier unpublished Ninth Circuit opinion could be used to clarify the convoluted history of Platters’ litigation, and in fact that was the case. After more than 50 years of litigation, the Platters’ name has finally and clearly been returned to the person who named the group in 1953, and that is as it should be, in our opinion as well as the Court’s! It should also be noted that Sonny Turner, who replaced Tony Williams as The Platters’ lead singer in 1960, still performs under his own name, Sonny Turner, Former Lead Singer of The Platters, and now has a fair and level playing field on which to market his substantial talents, a playing field no longer littered with phony “Platters” groups deceiving the public as to their legitimacy and undercutting the authentic performers’ fees. We anticipate that the preliminary injunctions described above will become permanent injunctions in due time.
The second significant development occurred in the Second Circuit with regard to The Marvelettes. Judge Denise Cote has opined that the rights of original Marvelettes Katherine Anderson Schaffner and the estate of Gladys Horton are superior to those of Larry Marshak, which should ultimately end Marshak’s decades-old attempt to usurp The Marvelettes’ name. Judge Cote wrote a sentence in her opinion that summarizes a central principle of our Truth in Music movement. She held that “a stranger to the creation of goodwill associated with a mark could not develop common law rights in the mark for live performances where the original owner maintains rights in the mark to market musical recordings.” The Truth in Music movement is all about fighting these “strangers,” outsiders trying to prey on and cash in on famous names whose goodwill they had done nothing to create. Many conflicts in the world of musical groups can be defined as “internal disputes,” and those are a very different matter in which no “strangers” are involved. The Truth in Music Law which we have passed in 34 states is designed to rid the musical landscape of impostor groups, of “strangers,” not to settle internal disputes between parties who may have legitimately contributed to the establishment of the goodwill of that group name. Watch for significant changes likely to come soon in the status of The Marvelettes, as the excellent lawyers at Reed Smith New York, Kerren Zinner, Andrew Messite and Pamela Schoenberg, follow up on Judge Cote’s decision.
As if these two tremendous developments weren’t enough, there have also been some excellent responses recently from venues which had booked what we regard as impostor group shows. Twin River in Rhode Island turned a show into a “tribute” when the venue was not convinced the lineup in question could pass muster under Rhode Island’s Truth in Music Law. Efforts by our great ally, New Jersey Deejay Corky Warren, yielded similar results with regard to a municipal show in Camden, New Jersey. It’s worth noting that Singer Management v. Milgram has now been concluded in favor of the NJ Attorney General’s Office. This Third Circuit opinion upheld the constitutionality of the Truth in Music Law, and the NJ AG’s office is now once again unencumbered in its efforts to enforce this law in response to consumer complaints.
All in all, a remarkable period of progress for Truth in Music. We are succeeding in creating a fair and just environment for musical groups now and forever, in which impostors will be prevented from deceiving the public and the authentic performers will retain the legacy they worked so hard to create.
Hello, everyone, and thank you for your efforts in the Truth in Music movement. Our bill will soon be law in 33 states, and the federal bill is on the immediate horizon. Our bill is now on the Governor’s desk in both New Hampshire, which could not have been done without Lynda Tocci and Paul Pezzella, which completes the entire northeast, and North Carolina, which recently had what is in our opinion three impostor group shows polluting its concert calendar. Thus the total of 33, this session having also added Utah, Washington, Oregon, and Oklahoma. I’d like to thank Rep. Greg Hughes of Utah, Sen. Karen Keiser of Washington, Sen. Floyd Prozanski of Oregon, Rep. Mike Thompson of Oklahoma, Sen. Jackie Cilley and Rep. Bob Perry of New Hampshire, and Sen. David Weinstein of North Carolina for sponsoring our bill and shepherding its passage. Thanks also to their able aides and other invaluable personnel in these states– especially John Elder in Washington, Val Hoyle and Juliana Greenlaw in Oregon, A.J. Mallory in Oklahoma, Will Craig, Patrick Murphy, Majority Leader Maggie Hassan and Senate President Sylvia Larsen in New Hampshire, and Amy Fulk and Will Quick in North Carolina. Most special thanks to my friend Ty McCartney of Utah, who, along with the beloved Elaine Makas of Maine, is individually responsible for helping us find a record number of sponsors!
Other major news is last week’s opinion of the Third Circuit in Marshak v. Treadwell, which upholds contempt of court judgements against those responsible for many of the impostor Drifters groups, and reverses the District Court in once again requiring an accounting of the profits from their impostor group performances. This will damage these perpetrators of some of the most egregious impostor group scams where it hurts them the most– in the pocketbook! Many of these same players have also been enjoined from misusing the name “The Temptations” and held in contempt of federal court in the Ninth Circuit. Congratulations to Cindy Salvo for her outstanding legal work in Marshak v. Treadwell.
Here is a long overdue update on the excellent progress of the Truth in Music movement.
Perhaps the biggest news of all is the State of New Jersey’s huge win in the Third Circuit case, Singer Management v. Milgram. Some of the major promoters of what we believe to be impostor groups had sued the New Jersey Attorney General for attempting to enforce the state’s Truth in Music Law. Their main allegation was that the law was unconstitutional. Last week, Judge Dickinson Debevoise granted the State’s motion to have the case dismissed, thereby upholding the constitutionality of Truth in Music and insuring that we will not have to amend our language in any of the states we’ve passed. This also untied the hands of the NJ AG’s office and allowed them to take further action to enforce the law in the future. An upcoming show at the Atlantic City Hilton featuring what we believe to be impostor groups has been abruptly cancelled by either the hotel or the promoters!
There has been a bit of confusion about this court decision, created by a rather poorly researched article in the New Jersey Law Journal. This article completely misinterpreted Judge Debevoise’s opinion and in fact confused the impostor groups with the authentic artists. I’ve even had a couple of people contact me about the “major setback” they heard we had suffered, which was actually a major victory.
This was entirely a win for the “regulators,” for the authentic artists who are inductees of the Vocal Group Hall of Fame, and (especially) for the concert-going public which deserves better than to be duped by impostors. In our opinion, the plaintiffs in this lawsuit have never legally established themselves to be the “Heirs” to any “1950’s Musical Groups” and the Truth in Music Law we have championed in over 30 states is precisely designed to force groups like these, with dubious legal provenance, to put their cards on the table in court and prove their rights. Indeed, the “Elsbeary Hobbs Drifters,”whose claims you repeat and therefore give credence in the longer Law.Com piece, have already been disposed of in two published opinions (see Marshak v. Treadwell (1999, DC NJ) 58F. Supp.2d 551, affd. (2001, 3d Cir.) 240 F.3d 184). What’s more, in 2007, the principals and affiliates of plaintiffs in the current case were found to be in willful contempt of that permanent injunction by the same Judge Debevoise who dismissed the current case!
More thorough research and analysis on your part might have revealed this (as well as the same plaintiffs’ injunction and contempt citation by Judge Feess in the Ninth Circuit with regard to their misuse of the name “The Temptations.”) Judge Debevoise’s assessment in his 2007 contempt opinion was that the plaintiffs were carrying on an “elaborate shell game,” which perhaps continued with the apparently meritless current lawsuit. In any case, the current decision concludes that the Truth in Music Law is constitutional as written, that it is consistent and can co-exist with the Lanham Act, and that this is no longer a Federal issue. The decision dismisses plaintiff’s suit with prejudice, and the AG’s supplemental jurisdiction counterclaim without prejudice, thereby authorizing the Attorney General’s office to proceed with investigation and prosecution of impostor groups under NJ’s Truth in Music Law.
Just to make it a clean sweep, the plaintiffs also lost their concurrent motion for attorneys fees.
And so, as Singer Management v. Milgram passes into history, our movement goes forward to pass the Truth in Music Law in more states. Now that the constitutionality of the Law has been upheld, we will begin the federal effort as well. This will be a good public relations vehicle to educate the public if nothing else. We’ve always been certain that the most effective enforcement will come at the state, not the federal, level.
Despite the dramatic downturn in the economy and consequent shortness of funds, we have several states in progress in the 2009 legislative session. We have already been signed into law in Utah and Washington and Oklahoma and our current state total is 30!
New Hampshire should be completed soon, and Kansas, Oregon and North Carolina are in progress. Georgia passed one chamber and will complete next year in its two-year session, as will New Mexico and Arkansas. And we are close to sponsorship in Louisiana, which has a very late session that is just beginning. I hope to have passed all 50 states by 2011, 2012 at the latest.
In other enforcement news, we still await the results of an investigation and a projected hearing at the Nevada Consumer Affairs Division with regard to a show at the Sahara Hotel.
This would potentially impact the names “Cornell Gunther’s Coasters”, “The Platters” and “The Marvelettes”. The Governor of the state of Nevada has now called for the dismantling of the Nevada Consumer Affairs Division, which has obviously impacted their investigation.
We have no idea what will happen there, but trust of course that the state of Nevada will ultimately enforce its consumer laws in the proper fashion. Many fans in Nevada are very concerned about the lineage of the groups at the Sahara.
On the whole, it’s clear that the Truth in Music movement has had substantial impact on solving the impostor group problem. Venues and even agents are doing much better due diligence as to whom they hire and promote. Even some of the most hardened and greedy agents are now hawking “Tribute” shows instead of pretending they’re selling the real thing. We estimate that the impostor group business is down about 90% since the beginning of our effort.
Please continue to alert us to any dubious shows that come to your attention, and I promise to keep you updated in a more timely fashion. This volunteer work is a daunting task in a down economy when one is trying to maintain one’s own business, but it’s well worth it!

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1 This request for a preliminary ruling concerns the interpretation of Article 11(7) and (8) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1: ‘the Regulation’).
2 The request has been made in proceedings between Mr Bradbrooke and Ms Aleksandrowicz concerning parental responsibility for their son Antoni, who has been retained in Poland by Ms Aleksandrowicz.
‘Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
6 The 1980 Hague Convention entered into force on 1 December 1983. All Member States of the European Union are contracting parties to the convention.
(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end [the 1980 Hague Convention] would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.
‘1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of [the 1980 Hague Convention], in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.
‘§ 1. An order on the non-return of a child issued by a foreign court, together with all accompanying documents, transmitted to the central Belgian authority in accordance with Article 11(6) of [the Regulation], shall be sent by registered post to the Registry of the court of first instance attached to the court of appeal within whose jurisdiction the child was habitually resident immediately before the wrongful removal or retention.
2° an invitation to the parties to lodge submissions at the Registry within three months of the notification. The lodging of submissions shall constitute the bringing of an action before the family court of first instance.
§ 3. If at least one of the parties lodges submissions, the Registrar shall forthwith invite the parties to attend a hearing on the first available date.
§ 4. The bringing of an action before the family court shall give rise to the suspension of any proceedings commenced before courts or tribunals relating to a dispute regarding matters of parental responsibility or a related dispute.
§ 5. If the parties do not make submissions to the court within the period laid down in § 2(2) the family court shall issue an order recording the absence of submissions, and the Registrar shall give notice of that order to the parties, to the central authority and to the [public prosecutor].
§ 6. A judgment on the question of the custody of the child delivered in accordance with Article 11(8) of [the Regulation] may, at the request of one of the parties, also deal with rights of access in the event that the child’s return to Belgium is ordered in that judgment.
§ 7. The Registrar shall serve notice of the judgment referred to in § 6 on the parties, the [public prosecutor] and the Belgian authority by judicial notification.
§ 8. The Belgian central authority has sole responsibility to transmit the judgment and the accompanying documents to the competent authorities of the State in which the order on non-return was delivered.
14 Antoni is a child born in Poland on 21 December 2011, his parents being Ms Aleksandrowicz, who is Polish, and Mr Bradbrooke, who is British and who resides in Belgium.
15 The mother and the child moved to Brussels (Belgium) in July and August 2012, when the child was seven months old. From that date, the child was living with his mother and was regularly in contact with his father.
16 In August and September 2013 the mother and the father attended local mediation services with a view to agreeing accommodation rights with regard to the child, but no agreement was reached.
17 On 16 October 2013 the mother informed the father that she was taking the child on holiday to Poland.
18 By application lodged on 18 October 2013, the father brought an action before the tribunal de la jeunesse de Bruxelles (the court for young persons in Brussels) seeking a ruling on, inter alia, how parental authority over the child was to be exercised and accommodation rights with respect to the child.
19 By a summons of 23 October 2013, the father brought an action before the judge hearing applications for interim measures claiming provisionally and as a matter of urgency that secondary accommodation rights in respect of the child should be granted to him.
20 When the father learned that the mother had no intention of returning to Belgium with their child, he amended his claims before the judge hearing applications for interim measures and before the tribunal de la jeunesse de Bruxelles and sought, inter alia, the exclusive exercise of parental authority, primary accommodation rights in respect of the child and an order prohibiting the mother from leaving Belgian territory with the child. For her part, the mother challenged the international jurisdiction of the Belgian courts, seeking the application of Article 15 of the Regulation and the transfer of the case to the Polish courts, which are particularly connected to the child’s situation, since the child is residing in Poland and has in the interim been registered in a nursery school.
21 By order of 19 December 2013 the judge hearing applications for interim measures declared that he had jurisdiction and, provisionally and in the interests of urgency, upheld the father’s claims.
22 By judgment of 26 March 2014, the tribunal de la jeunesse de Bruxelles, after confirming that it had jurisdiction, held that parental authority should be exercised jointly by the parents, granted to the mother primary accommodation rights in respect of the child and temporarily granted to the father secondary accommodation rights on alternate week-ends, it being his responsibility to travel to Poland.
23 Since the father considered that that judgment ratified the wrongful removal of their child to Poland and accorded to that wrongful act a positive legal consequence, the father brought an appeal against that judgment before the cour d’appel de Bruxelles, seeking, principally, the exclusive exercise of parental authority and primary accommodation rights in respect of the child.
24 At the same as bringing proceedings on the substance before the Belgian courts, on 20 November 2013 the father brought an application before the Belgian central authority for the return forthwith of the child to Belgium under the return procedure established by the 1980 Hague Convention.
25 On 13 February 2014 the district court of Płońsk (Poland) declared that the child had been wrongfully removed by his mother and that the child had been habitually resident in Belgium before the removal. The court none the less decided to issue an order on the non-return of the child on the basis of Article 13b of the 1980 Hague Convention.
26 The Belgian central authority, which received from the Polish central authority a copy of that non-return order and the relevant documents, lodged that file, on 10 April 2014, at the registry of the tribunal de première instance francophone de Bruxelles [French language court of first instance, Brussels], which court invited the parties to lodge submissions. The effect of the father’s lodging of submissions with that court, on 9 July 2014, was to seise the President of the tribunal de première instance francophone de Bruxelles, which court had jurisdiction, in accordance with Article 1322i of the Judicial Code, in the version applicable prior to the entry into force of the loi du 30 juillet 2013 portant création du tribunal de la famille [law of 30 July 2013 on the creation of a family court], to examine the question of custody with respect to the child, pursuant to Article 11(6) and (7) of the Regulation. Under Article 1322i of the Judicial Code, the bringing of an action before that court entails that proceedings commenced before courts and tribunals seised of a dispute concerning parental responsibility or a related dispute are to be stayed. After the entry into force of the 2013 legislation, the case was reallocated to the tribunal de la famille de Bruxelles [the family court in Brussels].
27 By an interlocutory judgment of 30 July 2014, delivered in the absence of the mother, the cour d’appel de Bruxelles upheld the judgment delivered by the tribunal de la jeunesse de Bruxelles in that it declared that the Belgian court had international jurisdiction to rule on the substance of questions relating to parental responsibility. On the other hand, holding that an action based on Article 11(6) and (7) of the Regulation had in the interim been brought before the President of the tribunal de première instance francophone de Bruxelles, the cour d’appel stayed its ruling on the substance of the dispute and requested the Belgian central authority to lodge in the court file for the proceedings before it the entire file which that authority had lodged, under Article 1322i of the Judicial Code, at the registry of the tribunal de première instance francophone de Bruxelles. Last, pending the outcome, before the latter court, of the procedure set out in Article 11(6) to (8) of the Regulation, the cour d’appel de Bruxelles made a provisional ruling and ordered the mother to disclose to the father the address of her new place of residence with the child and laid down arrangements for the exercise of the father’s right of access to the child.
28 Since the mother refuses to disclose the address where she is living with the child, the father has not been able to exercise the right of access granted to him by the cour d’appel de Bruxelles.
29 At the same time as proceedings were brought by the father in Belgium, the mother brought a number of legal actions in Poland relating to parental responsibility. The Polish courts, after finding that the Belgian court had been first seised and had declared that it had international jurisdiction, held that they had no jurisdiction in the matter.
30 By final judgment delivered on 8 October 2014, the tribunal de la famille de Bruxelles referred the case to the cour d’appel de Bruxelles, on the ground that the Belgian courts had been seised by the father before the wrongful removal of the child for the purposes of Article 11(7) of the Regulation and that the substantive proceedings were pending before the cour d’appel.
31 The cour d’appel de Bruxelles considers that, under Belgian law, it cannot regard itself as seised of the procedure set out in Article 11(6) to (8) of the Regulation by the referral judgment delivered by the tribunal de la famille de Bruxelles on 8 October 2014. The cour d’appel considers that it could be seised of that procedure only by an appeal being brought by one of the parties against that judgment.
32 The cour d’appel seeks to ascertain whether, taking into account the requirements of expedition and efficiency which must be met by the procedure set out in Article 11(6) to (8) of the Regulation, Article 11(7) precludes the law of a Member State from allocating to a specialised court exclusive jurisdiction to deal with such a procedure and providing at the same time that all proceedings relating to parental authority commenced before a court or tribunal are to be stayed from the moment when that specialised court is seised.
33 Accordingly, the cour d’appel de Bruxelles considers that it is necessary to refer to the Court of Justice for a preliminary ruling a question on the interpretation of Article 11(7) and (8) of the Regulation, in order to be able to determine which Belgian court has jurisdiction under EU law and, in particular, to decide whether it is for the cour d’appel itself, seised of the substantive proceedings relating to parental responsibility, to give a ruling in accordance with the procedure set out in Article 11(6) to (8) of the Regulation.
– giving preference to the specialisation of courts in situations of parental child abduction with respect to the procedure provided for in those provisions even where a court or tribunal has already been seised of proceedings concerning the substance of parental responsibility in relation to the child?
35 The cour d’appel de Bruxelles requested that the reference for a preliminary ruling be dealt with under the urgent procedure provided for in Article 107 of the Court’s Rules of Procedure, because of the extreme urgency of the main proceedings. Those proceedings relate to the exercise of parental authority and custody with respect to a child in circumstances where there is a risk of irreparable damage to the relationship between the father and his son, the son being currently deprived of any contact with his father.
36 It is clear, first, that the reference for a preliminary ruling concerns the interpretation of the Regulation, which was adopted in particular on the basis of Article 61(c) EC, now Article 67 TFEU, which is in Title V of Part Three of the FEU Treaty, relating to the area of freedom, security and justice, and consequently that reference falls within the scope of the urgent preliminary ruling procedure defined in Article 107 of the Rules of Procedure.
37 Secondly, it is stated in the order for reference that Ms Aleksandrowicz refuses to comply with the judgment delivered by the cour d’appel de Bruxelles on 30 July 2014, whereby that court, first, ordered Ms Aleksandrowicz to disclose to Mr Bradbrooke, within eight days from the date of notification of that judgment, the address where she is now residing with the child, and, second, held that Mr Bradbrooke was to have rights of access to Antoni on alternate weekends, if the parties did not make other arrangements.
38 In that regard, it must be stated that this case concerns a three-year-old child who has been separated from his father for more than a year. Consequently, any continuation of the current situation, an additional feature of which is the significant distance between where the father resides and where the child is living, could seriously harm the child’s future relationship with his father.
39 In those circumstances the Fourth Chamber of the Court decided, on the basis of Article 108 of the Rules of Procedure, on the Judge-Rapporteur’s proposal and after hearing the Advocate General, to grant the referring court’s request that the reference for a preliminary ruling be dealt with under the urgent procedure.
40 By its question, the referring court seeks, in essence, to ascertain whether Article 11(7) and (8) of the Regulation must be interpreted as precluding a Member State from allocating to a specialised court the jurisdiction to examine questions relating to return or custody of a child in the context of the procedure laid down by those provisions, even where proceedings on the substance of parental responsibility with respect to the child have already been brought before a court or tribunal.
41 It must be recalled that the object of the Regulation is not to unify the rules of substantive law and of procedure of the different Member States. Nevertheless, it is important that the application of those national rules does not impair the Regulation’s effectiveness (see, to that effect, the judgment in Rinau, C‑195/08 PPU, EU:C:2008:406, paragraph 82).
42 In that context, it must also be pointed out that it is stated in recital 33 in the preamble to the Regulation that it recognises the fundamental rights and observes the principles of the Charter. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter, which include the right to maintain on a regular basis personal relationships and direct contact with both of his or her parents (see, to that effect, the judgment in McB, C‑400/10 PPU, EU:C:2010:582, paragraph 60).
43 Article 11(6) of the Regulation states that if, following the abduction of a child, a court issues an order on non-return pursuant to Article 13 of the 1980 Hague Convention, that court must immediately transmit a copy of the court order on non-return and the relevant documents to the court with jurisdiction or the central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. It must be observed that the explicit reference to national law indicates, inter alia, that it is for the Member State where the child was habitually resident immediately before the removal to determine, with due regard to the objectives of the Regulation, which court has jurisdiction to rule on the issue of the return of the child, after an order on non-return has been issued in the Member State to which the child was removed.
44 As regards Article 11(7) of the Regulation, it provides that, where a court order on non-return has been adopted, unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised, the court or central authority which receives the information relating to that court order must notify it to the parties and invite them to make submissions to the court, so that that court can examine the question of custody of the child. However, neither that provision of the Regulation nor Article 11(6) thereof identifies the national court which has jurisdiction to examine the question of custody of the child after an order on non-return has been issued. The same is true of Article 11(8) of the Regulation.
45 In that regard, while, pursuant to Article 11(7) of the Regulation, that court or central authority must serve on the parties, inter alia, a copy of the order on non-return issued under Article 13 of the 1980 Hague Convention, in order to permit, where appropriate, examination of the question of custody of the child, unless the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised, the question whether, where those courts have indeed been seised, the court determined by that Member State to have jurisdiction with respect to that examination can be required to cede jurisdiction to other courts in the same Member State is a matter of national law.
46 As stated by the Advocate General in point 60 of his View, Article 11(7) of the Regulation represents not a legal rule designed to determine which court has jurisdiction, but rather a legal rule of a technical nature the primary purpose of which is to determine the arrangements for the notification of information relating to the order on non-return.
47 Further, it may be recalled that, in accordance with the Court’s case-law, it cannot be inferred from Article 11(7) of the Regulation that a decision on the custody of the child is a prerequisite for the adoption, where appropriate, of a decision ordering the return of the child. The purpose of the latter decision, an interim measure, is also to contribute to the achievement of the final objective of the administrative and judicial procedures, namely regularisation of the child’s situation (see, to that effect, the judgment in Povse, C‑211/10 PPU, EU:C:2010:400, paragraph 53).
48 While the Belgian Government argues that, under national procedural law, the specialised court seised of the question of return of the child under Article 11(6) to (8) of the Regulation could, at the request of one of the parties, refer the case to the cour d’appel seised of the substantive dispute relating to parental responsibility, so that the latter court could rule on both the question of return and the question of custody with respect to the child, that point concerns the interpretation of national law and is outside the jurisdiction of the Court of Justice. Consequently that point must be decided by the Belgian courts.
49 It follows from the foregoing that the determination of the national court which has jurisdiction to examine questions of return or custody with respect to the child in the context of the procedure set out in Article 11(6) to (8) of the Regulation is a matter of choice by the Member States, even in the situation where, at the time when a decision on the non-return of a child is notified, a court or a tribunal has already been seised of substantive proceedings relating to parental responsibility over that child.
50 However, as stated in paragraph 41 of this judgment, that choice must not impair the effectiveness of the Regulation.
51 The fact that a Member State allocates to a specialised court the jurisdiction to examine questions of return or custody with respect to a child in the context of the procedure set out in Article 11(7) and (8) of the Regulation, even where proceedings on the substance of parental responsibility with respect to the child have already, separately, been brought before a court or tribunal, cannot, as such, impair the effectiveness of the Regulation.
52 However, it must be ensured that, in circumstances such as those of the main proceedings, such an allocation of jurisdiction is compatible with the child’s fundamental rights as stated in Article 24 of the Charter and, in particular, with the objective that procedures should be expeditious.
53 As regards the objective of expedition, it must be recalled that when applying the relevant provisions of domestic law, the national court called on to interpret them is bound to do so with due regard to EU law and in particular the Regulation.
54 In the light of the foregoing, the answer to the question referred is that Article 11(7) and (8) of the Regulation must be interpreted as not precluding, as a general rule, a Member State from allocating to a specialised court the jurisdiction to examine questions of return or custody with respect to a child in the context of the procedure set out in those provisions, even where proceedings on the substance of parental responsibility with respect to the child have already, separately, been brought before a court or tribunal.
Article 11(7) and (8) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as not precluding, as a general rule, a Member State from allocating to a specialised court the jurisdiction to examine questions of return or custody with respect to a child in the context of the procedure set out in those provisions, even where proceedings on the substance of parental responsibility with respect to the child have already, separately, been brought before a court or tribunal.

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Peter BIONDO, et al., Plaintiffs-Appellees, v. CITY OF CHICAGO, ILLINOIS, Defendant-Appellant.
Before EASTERBROOK, MANION, and WILLIAMS, Circuit Judges. Linda Friedman (argued), Mary Stowell, Stowell & Friedman, Chicago, IL, for Plaintiffs-Appellees. Benna R. Solomon (argued), Office of the Corporation Counsel, Chicago, IL, for Defendant-Appellant.
Chicago's Fire Department has five ranks: firefighter, engineer, lieutenant, captain, and battalion chief. Promotions depend on competitive examinations. Chicago developed the 1986 exam for lieutenant (a position open to firefighters and engineers) with care to ensure that it was both non-discriminatory and a valid test of skills. Yet although 29% of those who took the exam were either black or Hispanic, only 12% of those who received the highest 300 scores were in these groups. The Department concluded that this disparate impact could be justified, under the EEOC's Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607.4, only if the exam were valid for rank-order use-that is, if someone who scores higher on the test is bound to perform better than the person next in line. According to the Department's expert, this examination had a standard error of measurement of 3.5, which is to say that a person who scored 80 and took a similar test again could score as high as 83.5 or as low as 76.5 without implying that his skills and probability of success in the higher position had changed. Convinced that it could not make promotions from the 1986 list in rank-order fashion, the Department established what it called “standardized” lists and what most people would call racially segregated lists: it drew up one list for whites and another for blacks and Hispanics, and then made 29% of all promotions from the minorities-only list. The Department used these lists until 1991, promoting a total of 209 lieutenants from the 1986 exam.
This process meant that the promotion of some white candidates was delayed, and others were not promoted even though minority candidates with lower scores became lieutenants. Some of the disappointed applicants filed suit under 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964. The Department acknowledged that its approach can be sustained only if a compelling interest supports its use of race and ethnicity. See, e.g., Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). It did not argue that either past discrimination or a quest for diversity supports its approach. Cf. Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003); Petit v. Chicago, 352 F.3d 1111 (7th Cir.2003). Chicago instead maintains that it had a compelling need to comply with federal regulations that frown on using tests to make promotions in strict sequence. The district court bifurcated liability from damages and conducted a trial before an advisory jury, which concluded that the Department violated both § 1983 and Title VII. In open court the district judge agreed with this conclusion. Two later jury trials (limited to 19 of the plaintiffs) led to substantial awards of compensatory damages plus equitable relief such as front pay. Biondo v. Chicago, 2002 WL 982336, 2002 U.S. Dist. LEXIS 3463 (N.D.Ill. Feb. 28, 2002); Cloud v. Chicago, 2002 WL 1160930, 2002 U.S. Dist. LEXIS 9817 (N.D.Ill. May 30, 2002).
According to the Department, the jury's (and thus the judge's) finding that the 1986 exam was valid is clearly erroneous, see Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), even though the trier of fact credited plaintiffs' statistical expert, who supported the exam's validity. Bryant v. Chicago, 200 F.3d 1092 (7th Cir.2000), sustains rank-order use of a similar exam, making it hard to see how the outcome of this trial could be deemed clearly erroneous. The Department acknowledges that the evidence taken in the light most favorable to the verdict shows the exam's overall validity as a test of skills but maintains that it does not demonstrate the propriety of making promotions in sequence, given the standard error of measurement. Even if the plaintiffs' expert undermined the conclusion that the standard error of measurement is 3.5, the Department insists, the record does not show that the standard error is zero, and without such a finding (which would be impossible, as no exam predicts perfectly) the exam could not have been used to make promotions in rank-order sequence, given the disparate impact that would have ensued.
Let us suppose that the City has the better of the statistical argument on this record (perhaps the one compiled in Bryant did more to show the exam's validity). We shall suppose further that the EEOC's regulations tell employers not to hire or promote in strict sequence when that would cause minority groups to succeed less than 80% as often as whites. But see Paul Meier, Jerome Sacks & Sandy L. Zabell, What Happened in Hazelwood: Statistics, Employment Discrimination, and the 80% Rule, 1984 Am. Bar Foundation Research J. 139, 158-70. Still, the premise of the City's argument is that regulations supply a compelling governmental interest in making decisions based on race. How can that be? Then Congress or any federal agency could direct employers to adopt racial quotas, and the direction would be self-justifying: the need to comply with the law (or regulation) would be the compelling interest. Such a circular process would drain the equal protection clause of meaning. Decisions such as Adarand Constructors show that compliance with federal laws cannot automatically be a compelling interest; Adarand Constructors held a federal statute unconstitutional precisely because it required public officials to make use of race, and the statute was not itself supported by a compelling governmental interest. Chicago does not contend that 29 C.F.R. § 1607.4 carries out any compelling governmental interest, and given the holding of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), that disparate impact in hiring or promotion by a public employer does not violate the equal protection clause, it is hard to see how such an argument could be constructed. If avoiding disparate impact were a compelling governmental interest, then racial quotas in public employment would be the norm, and as a practical matter Washington v. Davis would be undone. Congress did not attempt this; to the contrary, it provided in 42 U.S.C. § 2000e-2(j) that an employer's desire to mitigate or avoid disparate impact does not justify preferential treatment for any group.
The Civil Rights Act of 1991 explicitly forbids the dualist response to disparate impact. 42 U.S.C. § 2000e-2(l ). (That section also forbids differential validation, under which scores predicting an equal probability of success on the job lead to an equal probability of favorable decision even though this may mean that minorities are promoted with scores lower than those of white applicants. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (approving use of differential validation under statutes then in force). The City did not attempt differential validation before resorting to standardization.) The 1991 Act does not apply retroactively, see Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), but new § 2000e-2(l ) and old § 2002-2(j) jointly reveal that standardization cannot be an indispensable response to disparate impact. Public employers have other options. One will suffice here. Instead of making rank-order promotions, Chicago could have created bands reflecting the standard error of measurement. For example, the Department could have treated all scores in the range 96-100 as functionally identical and made promotions by lot from that band; when all test-takers with those scores had been promoted, the Department could have pooled scores in the range 91-95 and promoted randomly from that group, and so on. That procedure would have respected the limits of the exam's accuracy while avoiding any resort to race or ethnicity. Given options of this kind, the City's two-list procedure cannot be thought compelled. Indeed, it is hard to credit the Department's assertion that it viewed rank-order promotions as unsupportable when that is how it actually used the exam. After creating racially segregated lists, the Department promoted in rank-order sequence from each list!
Details for one firefighter show how these findings translated into a judgment. Peter Biondo received $35,125 in prejudgment interest on the back-pay amount of $112,000. The court did not add interest to the damages for emotional distress. So money damages came to $272,125. Biondo had been promoted (after his success on a later exam) to lieutenant on February 16, 1998; the court ordered the Department to make this promotion retroactive to November 1, 1990, which provided Biondo with additional seniority and pension benefits. (This date was selected to leave an adequate gap before the promotion to captain, which the jury found would have occurred on August 16, 1993, but for the delay in Biondo's promotion to lieutenant.) Finally, the court ordered the Department to pay Biondo at the rate of a battalion chief for the period between March 1, 2002, and March 1, 2014, unless Biondo left the Department's employ earlier.
Some of these findings are hard to quarrel with. For example, Michael Timothy, whose promotion to lieutenant was delayed, made it to both captain (from the 1992 exam for that position) and battalion chief (from the 1994 exam); his damages reflect just a short delay in promotion and a bit of aggravation. Gacki and Wirtz became captains after the 1999 examination. But other findings are more problematic: the juries found that most of the plaintiffs were sure to be promoted even though, except for Gacki, Timothy, and Wirtz, they have failed to achieve advancement through the competitive process since becoming lieutenants (a position 15 of them managed to achieve, eventually, on their own: 5 by delayed promotion from the 1986 list, and 10 by promotion from later examinations). The finding that Gacki had a “0%” chance of becoming a captain is puzzling, as he actually achieved that position in 1999. (This finding was the work of the second jury; the first jury concluded that Timothy and Wirtz, the others who already were captains, had a 100% probability of promotion to that position. Neither jury behaved inconsistently.) Then there is the inexplicable verdict concerning Michael Oliver: 90% likely to become a captain and certain to become a battalion chief, even though the latter promotion is impossible without the former.
Unfortunately, the juries' estimates do not reflect a plausible appreciation of the lost chances: the juries concluded that every one of the plaintiffs who had not yet achieved a captaincy was certain to have done so-even though four plaintiffs had been unsuccessful in post-1986 attempts to become lieutenants, and 9 of the 15 plaintiffs who reached lieutenant had tried and failed to achieve higher ranks. (Timothy, Gacki, and Wirtz became captains after succeeding on exams; Corcoran, Joyce, and McElroy were promoted independently of the testing process, for reasons that the parties do not relate.) Even in a world of grade inflation, where teachers living far from Lake Wobegon think nothing of rating all students as “above average,” it is hard to swallow a conclusion that all candidates held back from promotion to lieutenant in 1986 were sure to become captains. Remember that 209 firefighters were promoted to lieutenant from the 1986 exam. Plaintiffs ranked well below many of those 209, though high enough to have made the cut but for the preference given to minority firefighters. They are not the pick of the class, the people who regularly finish first on every exam. Of the 528 lieutenants who took the 1992 exam for captain (the first that these plaintiffs could have taken had they been promoted from the 1986 exam), only 136 (or 26%) were promoted. That one-in-four chance was the outcome for persons who, on average, had done better on the lieutenants' exam than plaintiffs (for even had they been promoted, they would have been in the bottom half of the 1986 lieutenant class). And of the 137 captains who took the 1994 exam for battalion chief, only 54 (or 41%) were promoted-though these juries concluded that 8 of our 19 plaintiffs had a 100% chance of promotion to battalion chief, and that another four had chances exceeding 41%.
One must take into account the possibility of sitting for multiple exams: 132 lieutenants who were not promoted from the 1992 test for captain applied again in 1998; of these, 29 (or 22%) have been promoted. This suggests that of those lieutenants who take the captain's exam at all, about 33% are promoted either from the first exam or a second try (if they persist through a second exam, and one could extrapolate that around 40% of aspiring lieutenants could achieve promotion by taking the exam) three or more times. Still, this is a long way from the 100% success rate that the juries calculated for our 19 firefighters.
The verdicts imply that, if we were to look at the most comparable firefighters-say, the 25 who ranked immediately above the plaintiffs on the 1986 exam and were promoted to lieutenant as a result-we would find that all became captains no later than November 2000, and that most would be battalion chiefs today. The record does not reveal how these firefighters actually fared, and plaintiffs, who bear the burden of persuasion, suffer from the omission. The best evidence of the chance they actually lost is missing. Nonetheless the verdicts might be sustainable if evidence demonstrated that, despite finishing out of the top hundred who took the 1986 exam, these plaintiffs must have had a bad day and were really more likely to succeed than the average exam-taker. That only 3 of the 19 have become captains by examination (some after two chances, in 1992 and 1998), suggests otherwise.
The record does not contain any evidence comparing these plaintiffs with other firefighters. Each of the 19 elected to present a non-comparative case. Each testified that he loves the work, strives to succeed, and studies hard for tests. Each presented evidence about his education and experience. Most presented family members and friends who testified to the long hours the plaintiff studied, the plaintiff's commitment to the fire department, and so on. This evidence does not permit quantification of the chance lost by being held back in 1986. Firefighters do not strive to meet an absolute standard; they compete against their colleagues. The other firefighters taking tests for higher positions also love the department and prepare thoroughly. Only a demonstration that these plaintiffs are much better at tests than their rivals would support a verdict that the chance lost was 100% or anything like it. Yet the plaintiffs bypassed their opportunity to introduce comparative evidence; and what evidence the record does contain-that these plaintiffs did not excel on the 1986 exam; that they have not done well on tests for promotion since then; that only 33% of those who were actually promoted to lieutenant by 1992, and pursued further promotion, made captain by 2002-undermines the verdicts. Even giving all of the evidence and inferences a reading favorable to plaintiffs, no reasonable juror could find that all were destined to become captains. The verdicts therefore cannot stand.
Because none of the plaintiffs presented comparative evidence, the view most favorable to the plaintiffs as a group is that each would have done as well as the average lieutenant on the 1992 and 1998 exams. This means that, but for the discrimination after the 1986 exam, 33% of the plaintiffs (or 6 of them) would have become captains by 2002 via examination. Three actually reached that level (and Timothy went on to battalion chief), and three more achieved a captaincy in some other way, so the remaining 16 lost only 3 captaincies (or none, depending on how the non-competitive promotions are handled). Perhaps it is inappropriate to hold the promotions of some plaintiffs against the rest in this way; it depends on whether we view these 19 as all of the victims of discrimination (in which event at most 3 promotions were lost) or as a random sample of the victims (in which event the lost-chance figure should be applied person by person). The City takes the latter view, which is the more favorable to the 13 plaintiffs who have stopped short of captain. (These 19 are not the only victims; other firefighters have claims yet to be tried; their disposition has been postponed to await our decision concerning these firefighters.) Accordingly, on remand each of the 13 is entitled to all of the benefits he would have received from a timely promotion to lieutenant, plus 33% of the benefits available from promotion to captain. And as about 41% of captains eventually become battalion chiefs, the award for the 10 plaintiffs who the jury thought likely to achieve that goal could include about 14% of the benefits of that position (a 33% chance of becoming a captain times the 41% chance that a captain eventually will advance again).
Other remedies depend on the unsupported view that all 19 plaintiffs were sure to become captains. Promotion to battalion chief is possible only for captains, so the high probabilities assigned to battalion chief for 11 plaintiffs are untenable. The back pay awards depend on the probabilities (and dates) of these promotions; they too must be vacated. The awards of compensatory damages for emotional distress also are linked to the estimates of promotional likelihoods. As the district judge remarked, this is why the awards to Timothy and Wirtz are relatively low: they suffered an insult and aggravation but were not held back significantly in their careers. The awards appear to be dominated by the jurors' belief that persons who should have been captains, and were stuck for a decade in the rank-and-file, suffered acute mental distress. Recognition that these plaintiffs were not destined for the captaincy doubtless would influence the evaluation of their degree of (justifiable) distress. Finally, the district judge's equitable orders (retroactive seniority and pensions, front pay) assume the validity of the jurors' conclusions. A change in the promotion probabilities and dates requires everything else to be redone. Consequently we vacate the entire judgment and remand for a new trial limited to the calculation of back pay and damages for emotional distress on the assumption that each of the plaintiffs who has yet to reach captain lost a 33% chance of promotion by 2002.
The district judge should see to it that any awards of compensatory damages for mental distress are proportional to the wrongs-and to the caps added by the 1991 Act. They do not apply directly to injury before 1991, but much of the harm post-dates that legislation. No matter how serious the offense, compensatory damages for discrimination covered by the 1991 Act cannot exceed $300,000. See 42 U.S.C. § 1981a(b)(3). The awards in this case reached $232,000 (to Tervanis), yet the emotional distress that these firefighters endured must be considerably less than that suffered by other victims of discrimination-some of whom lose their livelihood by racially motivated discharge, others of whom endure sexually or racially based harassment or assaults that can make a job a source of trauma and misery. Sometimes discrimination produces mental breakdowns and long-term disability. See Wilson v. Chrysler Corp., 172 F.3d 500 (7th Cir.1999); Williamson v. Handy Button Machine Co., 817 F.2d 1290 (7th Cir.1987). None of our plaintiffs suffered such substantial injuries. If awards even in these extreme cases are capped at $300,000, the award appropriate to discrimination that simply retards the rate of promotion must be considerably less in order to maintain proportionality. Compare Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344 (7th Cir.1995), with Fine v. Ryan International Airlines, 305 F.3d 746 (7th Cir.2002).
As for duration: we agree with the City that 12 years exceeds the scope of a district court's equitable discretion. The goal of front pay is to put the victim in the financial position he should have enjoyed, when circumstances make it inappropriate to direct the employer to promote (or hire) him. See, e.g., Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001); Williams v. Pharmacia, 137 F.3d 944, 954 (7th Cir.1998); Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1212 (7th Cir.1989). This means, we observed in Williams, that front pay cannot extend past the time a reasonable person needs to achieve the same or an equivalent position in the absence of discrimination. Even if the lingering effects of discrimination hindered promotional opportunities until trial in 2002, front pay cannot logically continue after the next unimpeded promotional opportunity-the first post-2002 exam for captain (for those plaintiffs who were lieutenants in 2002) or battalion chief (for those who had become captains). The opportunity to seek promotion then gives each plaintiff everything to which he is entitled; a lieutenant or captain who does not achieve a competitive promotion no longer can blame his status on discrimination that delayed (but did not prevent) promotion to lieutenant. Setting this limit also gives plaintiffs an incentive to compete for promotions, unlike the district court's remedy, which all but guaranteed plaintiffs the highest possible salary through retirement without the need to seek advancement or perform the duties of the higher positions.
Perhaps what we have said will lead the litigants to resolve these remaining issues (and the remaining firefighters' claims) amicably rather than slug it out again in the courtroom. We hope so; this dispute is approaching its third decade. The judgments are vacated, and the case is remanded for proceedings consistent with this opinion.
I concur in the result, given the arguments presented to us. I write separately to reiterate what the Supreme Court has made clear: “Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it.” Grutter v. Bollinger, 539 U.S. 306, 326-27, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). The City of Chicago's use of race in making promotional decisions is subject to strict scrutiny, meaning it is constitutional if necessary to fulfill a compelling government interest, so long as it is also narrowly tailored to further that interest. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). As my colleagues note, we have recognized on numerous occasions that a governmental agency has a compelling interest in remedying its past unlawful discrimination. See Majeske v. City of Chicago, 218 F.3d 816, 819 (7th Cir.2000); McNamara v. City of Chicago, 138 F.3d 1219, 1221 (7th Cir.1998); People Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 535 (7th Cir.1997); Billish v. City of Chicago, 989 F.2d 890, 893 (7th Cir.1993) (en banc); see also Erwin v. Daley, 92 F.3d 521, 527 (7th Cir.1996) (“Courts have also held that a compelling state interest can be demonstrated by the use of statistical evidence of present discrimination plus a history of entry-level and promotional discrimination.” (citations omitted)).
Yet unlike the position it has taken in other cases, the City did not defend its actions on the basis that it was remedying past discrimination in the Chicago Fire Department. Cf., e.g., McNamara v. City of Chicago, 138 F.3d 1219 (7th Cir.1998) (finding that non-rank order promotions in Chicago Fire Department were justified by City's past racial discrimination in employment of firefighters); Chicago Fire Fighters Union Local 2 v. Washington, 1999 U.S. Dist. LEXIS 20310, at *8 (N.D.Ill.Dec. 30, 1999) (defending non-rank order promotions as part of policy to remedy effects of past racial discrimination). Because the City made no argument that past discrimination was a factor in any decision related to the scoring of the 1986 examination, we are precluded from analyzing the case on this basis.
A nonremedial reason may also constitute a compelling interest supporting the use of race and ethnicity in employment decisions. For example, this court found that the Chicago Police Department had a compelling interest in having a diverse population at the rank of sergeant. Petit v. City of Chicago, 352 F.3d 1111, 1115 (7th Cir.2003); cf. Grutter, 539 U.S. at 329, 123 S.Ct. 2325 (finding law school had a compelling interest in a diverse student body). We similarly recognized an operational need for persons of different races in the corrections environment. Wittmer v. Peters, 87 F.3d 916, 919 (7th Cir.1996). In this case, however, the City did not argue that the pursuit of diversity constituted a compelling interest.
Based on the arguments presented to us, I concur in the result on the merits. I am in full agreement with the decision to vacate the damage awards.


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Mr. Martin G. Holleran argued the cause for defendant-appellant ( Mr. Edward C. Laird, on the brief).
Mr. Martin S. Goldman argued the cause for plaintiffs-respondents ( Messrs. Goldman, Goldman Caprio, attorneys; Mr. Martin S. Goldman, of counsel).
The opinion of the Court was delivered by HALL, J.
Plaintiffs sued defendant in the Law Division to recover $50,000 they had delivered to him, partly for their purchase of stock in a corporation in which he was a large stockholder, and partly as a loan, for certain specified purposes, to defendant personally or to the corporation with his personal guaranty. Allegedly the stock was not delivered and the loan not repaid. The transaction took place in New York; defendant is a resident of New Jersey.
On the basis of affidavits supporting the allegations of the complaint that defendant had fraudulently converted the money for other uses, original process was a capias ad respondendum ( ca. re.) pursuant to N.J.S.A. 2A:15-42(d). The writ issued on the ex parte order of a Superior Court Judge sitting in Essex County, which directed that defendant be held to bail in the amount of $50,000 (the amount of the alleged debt; see N.J.S.A. 2A:15-42), conditioned, in partial accord with R. 4:51-2(a) and (b), that he "render himself amenable to the orders and process of this Court at all times pending this action and to such process as may be issued to compel the performance of any judgment entered there." The order also provided that upon arrest defendant was to be brought forthwith before a judge of the county.
d. That defendant fraudulently contracted the debt or incurred the demand.
The cited rules also provide the further condition of the bond, not specified by the order here, that defendant "shall appear before the court, or any officer thereof, when so required by court order."
The Sheriff of Essex County took defendant into custody under the writ at his home at 1:30 A.M. on December 1, 1969 and committed him to the county jail. Later that morning he and his attorney appeared before one of the judges in the county, who, we understand, informed them of the nature of the proceedings and denied an oral request for reduction of bail. Four days later defendant brought on a formal motion for discharge of the writ and to set aside the order to hold to bail. R. 4:51-3(a). The principal ground was that plaintiffs' affidavit-proofs, upon which the writ and order issued, were insufficient to establish that defendant fraudulently contracted the debt sued on. Defendant submitted his own affidavit, denying any fraud or misuse of the funds and stating he was completely insolvent and unable to pay back the money or raise the bail. Plaintiffs, who under the cited rule have the burden of proof on such a motion, offered answering affidavits and the matter was heard by the judge on the affidavits without oral testimony. The court found that plaintiffs' proofs were ample to establish the fraud required for the issuance of a ca. re. and denied the motion, remanding defendant to custody.
Defendant then sought leave to appeal the denial of the motion to the Appellate Division and for release from custody pending the appeal. In his papers he raised for the first time the contention that incarceration for an alleged civil debt prior to a judgment in the suit, unless bail be furnished to secure the debt, is violative of the federal and state constitutions. A judge of the Appellate Division denied release and defendant then applied to this court. R. 2:2-2(b); 2:9-5(b) last sentence. Having some doubt about the proper interpretation of the previously quoted condition of a ca. re. bond, we granted leave to appeal from the trial court's order denying the motion to discharge the writ, and authorized defendant's release from custody upon the filing of a personal appearance surety bond in the sum of $25,000. The bond was filed and defendant was released on December 19 after an incarceration of 19 days.
The bond recites that its purpose "is solely to guarantee the appearance of the Principal at any time he is directed to appear by the Superior Court or the Supreme Court of New Jersey and is not for the purpose of guaranteeing either the defense of this action or the payment of any judgment or costs which may be levied against the Principal."
We may first quickly dispose of defendant's renewed contention that plaintiffs' proofs were insufficient to warrant the issuance of a ca. re. While it would have been more desirable for the trial court to have required the presentation of oral testimony, with cross-examination ( R. 4:51-3(a)), than to have decided the matter on affidavits which contained much hearsay and conclusory statements, we think there was sufficient competent evidence before it from which the conclusion could reasonably be reached that the issuance of the writ was warranted, especially in light of the view in this state that it need not be shown that the original consensual agreement was contemporaneous with the fraudulent design of defendant. Allied Financial Corp. v. Steel Panel Sales Corp., 86 N.J. Super. 65 , 74-75 (App.Div. 1964), certif. denied sub. nom. Allied Financial Corp. v. Financial Associates, Inc., 44 N.J. 411 (1965), and cases therein cited.
The main thrust of the original briefs and oral argument of the parties was directed to the constitutional contention of defendant previously mentioned. This was grounded on the assumption, indulged in not only by both counsel, but also by the judges who dealt with the matter below, that the modern condition of a ca. re. release bond, prescribed by R. 4:51-2(a) and (b) earlier quoted, amounts to a guarantee of payment by the surety of any judgment obtained against defendant in the suit. Our subsequent research led us to question this proposition and we requested supplemental memoranda. We are now thoroughly convinced that, despite an apparent popular conception to the contrary, the present bond condition, and indeed the prior form of condition prescribed until the predecessor of R. 4:51 was adopted effective January 1, 1952, does not constitute a guarantee of payment, but merely assures defendant's physical presence when ordered by the court, especially when his surrender is required pursuant to the corollary writ of capias ad satisfaciendum ( ca. sa.) issued after judgment has gone against him in the action.
The reason for our conclusion requires a brief excursion into history. Both writs are ancient and were broadly used in the early English practice when imprisonment for debt was prevalent. That practice was followed in the early days of this state. For our purposes, however, we need not go back of our Constitution of 1844 which prohibited such imprisonment "in any action, or on any judgment founded upon contract, unless in cases of fraud; * * *." Art. I, par. 17. (The identical provision appears in our present constitution. Const. 1947, Art. I, par. 13). The effect was to leave the determination of what constituted fraud to the Legislature. Ex Parte Clark, 20 N.J.L. 648, 650 (Sup.Ct. 1846). The Legislature acted in 1846 (in connection with the revision of the laws authorized in 1845 and adopted in 1846, but not printed until 1847), Rev. 1845, p. 321-322, renewing and adding to an earlier statute. The result was a limitation of the grounds for the issuance of a ca re. to cases of a debt or demand founded upon contract, express or implied, where it is established to the satisfaction of the court that: (1) defendant is about to remove any of his property out of the jurisdiction of the court in which the action is about to be commenced with intent to defraud his creditors; or (2) he has property or rights in action which he fraudulently conceals; or (3) he has assigned, removed or disposed of any of his property with the intent to defraud his creditors or is about to do the same; or (4) he fraudulently contracted the debt or incurred the obligation respecting which the suit is brought. If such proofs were produced, the court was empowered to make an order to hold defendant to bail in such sum as plaintiff swore was due and directing the issuance of a ca. re., which commanded the sheriff to take defendant into custody. These provisions substantially remain in effect today. N.J.S.A. 2A:15-42.
Ca. re. is also available in certain tort actions presently specified in N.J.S.A. 2A:15-41: (a) an outrageous battery or a mayhem; (b) a claim of damages for the misconduct or neglect of a public officer; (c) a willful or malicious act and the defendant is a nonresident or is about to remove from the state. Undoubtedly because the damages sought in such actions are unliquidated, the section provides that "the court shall hold the defendant to bail, in an amount which it thinks proper under the circumstances." Otherwise the procedure for arrest and bail is the same as in contract actions. Our conclusions with respect to arrest and bail in contract actions will have equal applicability to actions founded upon the three tort causes of action set forth above.
If the defendant C.D. shall be condemned in this action at the suit of A.B. the plaintiff, he shall pay the costs and condemnation of the court, or render himself into the custody of the sheriff of the said county for the same, or if he fail so to do, that the said E.F. and G.H. [the sureties] will pay the costs and condemnation for him. (Emphasis supplied.) Another section provided that defendant might render himself, or be rendered, in discharge of bail, either before or within a limited time after judgment in the case. Rev. 1845, p. 936. The condition of the recognizance remained substantially the same, N.J.S.A. 2:27-89 and 90, until Title 2A, effective January 1, 1952, replaced Title 2 of the Revised Statutes, at which time the above sections were not reenacted. The one change that did occur prior to the Title 2A revision was an addition to section 90, which, in the bond condition itself, expressly afforded the sureties the alternative to render defendant into the custody of the sheriff in lieu of paying the judgment, even though they already had that right by virtue of the rendering section. Emanuel v. McNeil, 87 N.J.L. 499 (E. A. 1915). The rendering section still exists in practically the same form. N.J.S.A. 2A:15-47 (formerly N.J.S.A. 2:27-100).
Mention ought to be made at this point of the function and place of ca. sa., previously adverted to, in the procedural scheme. (There is only one passing reference to it in our rules. R. 4:59-1(a)). Essentially it is a body execution enabling a judgment creditor in specified types of actions to cause the arrest of the judgment debtor and his retention in custody until he either pays the judgment or secures his discharge as an insolvent debtor. 4 N.J. Practice ( Marsh and Fischler, Forms) sec. 2053, p. 268-269 (rev. ed. 1960). Its availability since 1846, Rev. 1845, p. 322, has been limited at least in contract cases to those situations in which: (1) a ca. re. had issued and the order to hold to bail remained in force (whether or not defendant had been released from custody); or (2) a ca. re. had not issued but satisfactory proof was offered to the court after judgment that the writ could have issued initially; or (3) defendant had property in his possession or in the possession of another to his use, of the value of $50 or over, which he unlawfully refused to apply in payment of the judgment. The grounds remain the same today. N.J.S.A. 2A:17-78.
For our purposes, it may be noted that a ca. sa. issues automatically when a ca. re. had been issued initially and had not been quashed by successful attack on the underlying proofs before trial or by a finding by the judge at trial that the writ should not have issued. See R. 4:51-3 and 4:51-4; Austrian v. Laubheim, 78 N.J.L. 178 (Sup.Ct. 1909), aff'd o.b. 80 N.J.L. 459 (E. A. 1910). If incarcerated under a ca. sa., defendant's only means of securing his release is to pay the judgment or resort to the provisions relating to the discharge of insolvent debtors, which in effect amount to an assignment of all his real and personal property for the benefit of creditors, i.e. a compulsory surrender of the judgment debtor's property for the benefit of his creditors. N.J.S.A. 2A:20-1 to 11; R. 4:55; 4A N.J. Practice, supra, secs. 2961-2975, p. 97-111. See Duro Co. Inc. v. Wishnevsky, 126 N.J.L. 7 (Sup. Ct 1940). (We are not called upon in this case to pass upon the present day validity of the ca. sa. See Carter v. Lynch, 429 F.2d 154 (4th Cir. 1970)).
The point of all this is that it would appear that the true purpose of a ca. re. was and is only to compel defendant's personal availability, if judgment goes against him in the action, for subjection to a subsequent ca. sa. This is made clear by the very language of the bond condition in effect until 1952, N.J.S.A. 2:27-90, as well as by the section permitting the surety to surrender defendant in discharge of bail before or after judgment, N.J.S.A. 2:27-100 (now N.J.S.A. 2A:15-47). The former bond condition meant no more than that the surety had to pay the judgment (up to the amount of the bond) only if he was physically unable to surrender defendant for incarceration under a ca. sa. which issued as of course following the entry of judgment for plaintiff. The cases so indicate. Truitt v. Landesman, 108 N.J.L. 109 (E. A. 1931); Morgan v. Bowman, 103 N.J.L. 542, 544 (Sup.Ct. 1927); O'Donnell v. Mullen, 8 N.J. Misc. 694, 151 A. 377 (Cir.Ct. 1930). Cf. Simmons v. Kelly, 39 N.J.L. 438 (Sup.Ct. 1877); Atkinson v. Prine, 46 N.J.L. 28 (Sup.Ct. 1884); Emanuel v. McNeil, supra ( 87 N.J.L. at 502); Sholes v. Eisner, 90 N.J.L. 151 (E. A. 1916). The apparent popular misconception probably arose because the amount of the bond was specified to be related to the amount of the debt sued upon and the condition did speak, although alternatively, of payment of "the costs and condemnation."
Our former statutes, N.J.S.A. 2:27-86 and 87 (not reenacted in Title 2A), provided, and our current rules likewise ( R. 4:51-2(b)) provide further that, in lieu of furnishing bail, a defendant might make a cash deposit into court of the sum for which bail was ordered and that, if judgment goes against him, the deposit should be applied to the satisfaction thereof. The reason for this disposition is that a deposit of the defendant's own money should be automatically available for the satisfaction of the judgment without the necessity of levying execution upon it. Compare Neubauer v. Arians, 98 N.J.L. 606 (Sup.Ct. 1923), in which cash of a third party deposited to secure the appearance of a defendant was, in effect, held not available for satisfaction of the subsequent judgment.
conditioned upon the defendant at all times rendering himself amenable to the orders and process of the court pending the action and to such process as shall be issued to compel the performance of the judgment therein and that he shall appear before the court or any officer thereof, when so required by court order.
Originally adopted as Rule 3:64-4(a) on January 1, 1952, when the former statutory condition (N.J.S.A. 2:27-90) was not reenacted in Title 2A, it became R.R. 4:66-4 in the rules revision of 1953 and is now found in R. 4:51-2(a) and (b) of the 1969 revision. The language itself makes no reference whatever to payment of a judgment. Moreover, it is the same condition as that prescribed since the adoption in 1871 of rule 187 of the former Court of Chancery for a release bond under a writ of ne exeat (see 2 Kocher and Trier, Chancery Practice and Precedents, sec. 1688 (1924); 4 N.J. Practice, supra, sec. 1808, p. 141; 12A N.J. Practice ( Herr, Marriage, Divorce and Separation) sec. 2672, p. 172-173 (3rd ed. Lodge 1963)). Indeed, R. 4:51 deals with ca. re. and ne exeat as a single subject. (We are not here concerned with when ne exeat is available, how it is to be ultilized, or whether, under our merged practice, it, ca. re. and ca. sa. may be used in either legal or equitable actions. See 1969 Rules Revision (Pressler ed.), p. 516; Seiden v. Fishtein, 44 N.J. Super. 370 (App.Div. 1957)). There can be no question that a ne exeat release bond is not a guarantee of payments imposed by the court's subsequent order or decree, but is only to compel defendant's physical appearance when required. Foote v. Foote, 102 N.J. Eq. 291 (E. A. 1927). Recent ca. re. bond cases involving the condition in this form support this interpretation. Iaria v. Public Service Mutual Insurance Co., 31 N.J. 386 (1960); Yancey v. Lowe, 47 N.J. Super. 86 (App.Div. 195 7).
So construed, we see no reason to think that the current ca. re. release bond condition is constitutionally invalid from the substantive point of view. In fact, defendant does not contend that it is. The release bond with such a condition is analogous to a bail bond in a criminal prosecution. The legislature is entirely justified in classifying fraudulent debtors separately and authorizing civil arrest, at least when the undertaking to secure release is conditioned only upon the physical surrender of defendant when required. The trial court was in error in assuming that the bond condition guarantees payment of any subsequent judgment. The $25,000 bond required and furnished under our order, although its condition is phrased differently than the language prescribed by R. 4:51-2(a) and (b), has the same meaning, sufficiently complies with the rule and is entirely adequate to permit defendant's continued release from custody pending trial and final judgment in this action.
What we have said disposes of this appeal, but something should be said about the proper procedure, under modern constitutional concepts of procedural due process, to be followed in future cases of this type. Civil arrest under a ca. re. is substantially analogous to arrest under a criminal complaint and a defendant should have all the same procedural rights and protections as if he were arrested on a criminal charge for the same fraud upon which the civil action and the ca. re. are based. See In re Harris, 69 Cal.2d 486, 72 Cal.Rptr. 340, 446 P.2d 148 (1968); cf. Desmond v. Hachey, 315 F. Supp. 328 (D. Me. 1970).
If a criminal complaint were made, a defendant would be taken at once before the judge who issued the warrant and advised of the nature of the charge and of his rights. R. 3:4-2. He would be released on bail conditioned only on his further appearance, R. 3:26-1(a), and he would be entitled to a later hearing as to probable cause for the complaint (assuming he had not been indicted meanwhile), at which the State would be required to produce sufficient evidence thereof to hold him for action of the grand jury. R. 3:4-3.
By analogy, the procedure on ca. re. should hereafter be as follows: Upon arrest, after issuance of the writ on ex parte affidavits, defendant is to be brought immediately before the judge who issued the writ, or some other judge named therein, who will advise him of his rights to be released on bond and to bring on a motion on short notice under R. 4:51-3 to attack the basis for the issuance of the writ, at which plaintiff will have the burden of proof to establish the sufficiency of the evidence upon which the writ was issued. The judge will, at the initial appearance before him, fix the amount to which defendant shall be held to bail, with the condition prescribed in R. 4:51-2(a) and (b), which, as we have said, calls only for physical appearance when required. Plaintiff may, of course, be heard as to the amount of bail.
The judge may fix bail in an amount less than that which plaintiff claims to be due, despite the provision of N.J.S.A. 2A:15-42. The amount claimed to be due may well be too onerous a sum for a bond conditioned only upon physical appearance. We conceive that the amount of bail falls within the judicial rather than the legislative realm as a matter of practice and procedure, pursuant to Const. 1947, Art. VI, sec. II, par. 3. Analogies are found in the matter of a bond for stay of judgment on appeal, now covered by R. 2:9-5 and 2:9-6 and formerly the subject of statute, N.J.S.A. 2:27-369 to 375.2, and for release of attached property, now encompassed by R. 4:60-13 and previously prescribed by statute, N.J.S.A. 2:42-37 to 41. The amount of bail should be determined upon a consideration of all the circumstances, much as in a criminal case. Upon the same thesis, the bond furnished need not be in the now anachronistic sum of double the amount of the bail fixed, again despite the provision of N.J.S.A. 2A:15-43.
The order of the Law Division holding defendant to bail in the amount of $50,000 is set aside. The order of this court providing for defendant's release from custody upon filing a $25,000 appearance bond is continued in force pending final judgment. The case is remanded to the Law Division for trial. No costs.
For remandment — Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN — 7.

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