The Government at its meeting of 9th May 2012 adopted Resolution No. 332/2012 on the Material Support of the Activities of the Czech Republic's Ethics Commission for Recognition of Participants in Anti-Communist Opposition and Resistance, according to which, among others, the Office of the Government and the Ethics Commission proceed.
b)	by 31st December 2016 present to the Government a proposal of further procedure related to the necessity to ensure funding for the organizational, expert and material support of the functioning of the the Ethics Commission and the related need to increase the budgetary chapters of the Office of the Government of the Czech Republic.
On 17th November 2011 the Act No. 262/2011 Coll., on the Participants in Anti-Communist Opposition and Resistance came into force, which established the Czech Republic's Ethics Commission for Recognition of Participants in Anti-Communist Opposition and Resistance, which abides by it.
According to § 5 of the Act No. 106/1999 Coll., on Free Access to Information, the Ethics Commission is obliged to publish this information.
The Czech Republic's Ethics Commission for Recognition of Participants in Anti-Communist Opposition and Resistance (hereinafter “Ethics Commission) is an independent administrative body, which was established by the Act No. 262/2011 Coll. on the Participants in Anti-Communist Opposition and Resistance (§ 7 par.1) (hereinafter only “Act No. 262/2011 Coll.") and decides on appeals against the decisions by the Ministry of Defence of the Czech Republic on the awarding of the Member Certificate of the Anti-Communist Resistance and Opposition and on appeals against the decision to revoke this Certificate.
The Ethics Commission comprises of nine members. The Chamber of Deputies of the Czech Parliament, Senate of the Czech Parliament, Czech Government and the Council of the Institute for the Study of Totalitarian Regimes elect and recall two members each. One member is appointed and recalled by the President of the Czech Republic. The Chair of the Ethics Commission is elected and recalled by the government from the members elected by the government.
Reason and method of establishment of the obligatory subject, including conditions and principles of its functioning: The Ethics Commission is established by the Act No. 262/2011 Coll. The reason for its establishment is the need to establish an independent administrative body that decides on appeals against the decisions by the Ministry of Defence of the Czech Republic on the awarding of the Member Certificate of the Anti-Communist Resistance and Opposition and on appeals against the decision to revoke this Certificate. Conditions and principles of its functioning are regulated by the Act No. 262/2011 Coll., the Administrative Procedure Code and other related Acts.
Place, time and method to file an appeal against the decision of the obligatory subject on the rights and obligations of persons, including the explicit listing of requirements that are placed on the applicant in this case, as well as the description of processes and rules, which must be observed during these activities and the designation of the appropriate form and the place and method how to obtain this form: According to § 91 par. 1 of the Code of Administrative Procedure it is not possible to further appeal against the decision of the Ethics Commission. Filing a request for renewal of proceedings, which were ended by the appeal decision of the Ethics Commission is possible at the Ethics Commission via methods specified in point 2. The request will be assessed according to § 100 and following of the Code of Administrative Procedure.
The procedure the obligatory subject must observe when dealing with all applications, proposals and other requests, including relevant time periods, which must be observed: The Ethics Commission in its decision making abides apart from the constitutional rules by Act No. 262/2011 Coll., the Code of Administrative Procedure and other related Acts.
The list of the most important regulations, according to which the obligatory subject acts and makes decisions, which stipulate the right to request information and the obligation to provide information and which regulate other rights of citizens in relation to the obligatory subject, including the information where and when these regulations are available for reference: The Ethics Commission in its decision making abides apart from the constitutional rules by Act No. 262/2011 Coll., the Code of Administrative Procedure and other related Acts. Act No. 262/2011 Coll. The Government Resolution No. 332/2012 on the Material Support of the Activities of the Czech Republic's Ethics Commission for Recognition of Participants in Anti-Communist Opposition and Resistance. The Rules of Procedure of the Ethics Commission for Recognition of Participants in Anti-Communist Opposition and Resistance. In case of providing information the Ethics Commission abides by the Act No. 106/1999 Coll., on Free Access to Information.
Schedule of charges for providing information: The Ethics Commission provides free information regarding its activities according to the Act No. 106/1999 Coll., on Free Access to Information.
The annual report for the previous calendar year in the activities in the field of providing information: The Ethics Commission begun its operation at its first meeting on 11th June 2012 and its first annual report will be published at this website in the last quarter of 2012.
Exclusive licenses provided according to § 14a par. 4 of the Act No. 106/1999 Coll., on Free Access to Information: The Ethics Commission did not provide any exclusive license.
The resolution of a superior body regarding the amount of remuneration according to § 16a par. 7: As the Ethics Commission provides free information, no such regulation has been issued.
Electronic address of the Ethics Commission filing office: edesk@vlada.cz.
As of 1st August 2013 the Czech Republic's Ethics Commission for Recognition of Participants in Anti-Communist Opposition and Resistance in administrative proceedings, which are relevant to it according to § 7 of the Act No. 262/2011 Coll., on the Participants in Anti-Communist Opposition and Resistance, does not require officially verified translation of documents written in English, French or German language to Czech language; this does not apply to documents listed in § 53 par. 3 and 4 of the Act No. 500/2004 Coll., Administrative Procedure Code, as amended.


DEPUTY EMMENDORFER, et al., Defendants.
Anthony Paul Huey, a prisoner without a lawyer, filed a motion asking to amend his complaint. Pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), he may amend “once as a matter of course” without permission from the court within 21 days after a responsive pleading or motion to dismiss is filed. Because neither a responsive pleading nor a motion to dismiss have been filed, the motion to amend will be construed as a notice and the Clerk will be directed to docket the amended complaint which identifies a previously unknown defendant. The amended complaint is a copy of the original complaint and in each location where the actions of the Unknown Defendant were described, he has written in the name: Deputy Carrico.
This action involves an incident that occurred while Huey was a pre-trial detainee at St. Joseph County Jail. Huey alleges that he was beaten and denied medical treatment on October 2, 2016, while he was a pre-trial detainee in the Saint Joseph County Jail. “A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and citations omitted). Nevertheless, pursuant to 28 U.S.C. § 1915A, I must review the merits of a prisoner complaint and dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.
Huey alleges things began when Deputy Emmendorfer pushed and shoved him while escorting him to the visitation room at the jail. However, “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, ” violates the constitution. Graham v. Conner, 490 U.S. at 396, quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied 414 U.S. 1033 (1973). Based on the complaint, it does not appear that it was necessary for Deputy Emmendorfer to have pushed and shoved Huey, but Huey was not injured and “enjoyed a visit [with family] despite the unnecessary roughness exhibited toward him by Defendant Deputy Emmendorfer.” ECF 1 at 4. Therefore these allegations do not state a claim.
But what he alleges happened when he left the visitation room does. Huey says he ask Deputy Kitchen to take him back to his cell because Deputy Emmendorfer had been “pushing and shoving” him on the way to the visitation room. ECF 1 at 6. In response he says Deputy Emmendorfer “lifted [him] off the ground, slammed his head into the wall” and threw him to the floor while he “was handcuffed and shackled at the waist and entirely defenseless . . ..” ECF 1 at 7. Then Deputy Emmendorfer and Deputy Carrico beat him with closed fists.
Guards may not use excessive force against pre-trial detainees. Kingsley v. Hendrickson, 576 U.S. ___, ___; 135 S.Ct. 2466, 2473 (2015) (holding that “a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.”). These allegations state a claim against Deputy Emmendorfer and Deputy Carrico.
Huey alleges Deputy Kitchen did not intervene to stop the beating delivered by the other two guards. State actors “who have a realistic opportunity to step forward and prevent a fellow [state actor] from violating a plaintiff's right through the use of excessive force but fail to do so” may be held liable. Miller v. Smith, 220 F.3d 491, 495 (7th Cir.2000) (citing Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). Based on the duration of the alleged events, it is plausible to infer Deputy Kitchen had a realistic opportunity to have helped. Therefore this allegation also states a claim.
Next, Huey alleges Deputy Emmendorfer and the Deputy Carrico dragged him to his cell and refused his request for medical treatment. Under the Eighth Amendment, inmates are entitled to adequate medical care. Estelle v. Gamble, 429 U.S. 97, 104 (1976). “Although the Eighth Amendment applies only to convicted persons, pretrial detainees . . . are entitled to the same basic protections under the Fourteenth Amendment's due process clause. Accordingly, [courts] apply the same legal standards to deliberate indifference claims brought under either the Eighth or Fourteenth Amendment.” Minix v. Canarecci, 597 F.3d 824, 831 (7th Cir. 2010). See also Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 554 n. 31 (7th Cir. 2016) (clarifying that Kingsley v. Hendrickson, 576 U.S. ___, ___; 135 S.Ct. 2466 (2015) did not change the applicability of the Eighth Amendment standard to pre-trial detainee deliberate indifference claims). To establish liability, a prisoner must satisfy both an objective and subjecting component by showing: (1) his medical need was objectively serious; and (2) the defendant acted with deliberate indifference to that medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). A medical need is “serious” if it is one that a physician has diagnosed as mandating treatment, or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). On the subjective prong, the plaintiff must establish the defendant “acted in an intentional or criminally reckless manner, i.e., the defendant must have known that the plaintiff was at serious risk of being harmed and decided not to do anything to prevent that harm from occurring even though he could have easily done so.” Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005). The allegations here, including that Huey suffered serious injury to his face, skull, shoulder, and wrist, state a claim against Deputy Emmendorfer and Deputy Carrico.
Huey alleges Deputy Emmendorfer and Deputy Carrico falsely charged him with “aggressive movements toward staff members.” ECF 1-1 at 1. “[P]risoners are entitled to be free from arbitrary actions of prison officials, but . . . even assuming fraudulent conduct on the part of prison officials, the protection from such arbitrary action is found in the procedures mandated by due process.” McPherson v. McBride, 188 F.3d 784, 787 (7th Cir. 1999). See also Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1983) (“[A]n allegation that a prison guard planted false evidence which implicates an inmate in a disciplinary infraction fails to state a claim for which relief can be granted where the procedural due process protections as required in Wolff v. McDonnell are provided.”). Huey was found guilty by Sgt. Fisher. Though he alleges Sgt. Fisher did so in retaliation for protesting his innocence during the disciplinary hearing, he has not plausibly alleged he was denied due process or that Sgt. Fisher's decision was based on other than the evidence presented against Huey.
Deputy Emmendorfer and Deputy Kitchen have already appeared by counsel. My prior order required they respond to the original complaint. That is no longer necessary. Now they need to respond to the amended complaint. Though they have already waived service, a new notice of waiver will be issued so the record is clear as to the deadline for responding to the amended complaint and so their deadline will be the same as for Deputy Carrico.


text:
LUJAN, SECRETARY OF THE INTERIOR v.
DEFENDERS OF WILDLIFE ET AL.
Section 7(a)(2) of the Endangered Species Act of 1973 divides responsibilities regarding the protection of endangered species between petitioner Secretary of the Interior and the Secretary of Commerce, and requires each federal agency to consult with the relevant Secretary to ensure that any action funded by the agency is not likely to jeopardize the continued existence or habitat of any endangered or threatened species. Both Secretaries initially promulgated a joint regulation extending § 7(a)(2)'s coverage to actions taken in foreign nations, but a subsequent joint rule limited the section's geographic scope to the United States and the high seas. Respondents, wildlife conservation and other environmental organizations, filed an action in the District Court, seeking a declaratory judgment that the new regulation erred as to § 7(a)(2)'s geographic scope and an injunction requiring the Secretary of the Interior to promulgate a new rule restoring his initial interpretation. The Court of Appeals reversed the District Court's dismissal of the suit for lack of standing. Upon remand, on cross-motions for summary judgment, the District Court denied the Secretary's motion, which renewed his objection to standing, and granted respondents' motion, ordering the Secretary to publish a new rule. The Court of Appeals affirmed.
Held: The judgment is reversed, and the case is remanded. 911 F.2d 117, reversed and remanded.
JUSTICE SCALIA delivered the opinion of the Court, except as to Part III-B, concluding that respondents lack standing to seek judicial review of the rule. Pp. 559-567,571-578.
(a) As the parties invoking federal jurisdiction, respondents bear the burden of showing standing by establishing, inter alia, that they have suffered an injury in fact, i. e., a concrete and particularized, actual or imminent invasion of a legally protected interest. To survive a summary judgment motion, they must set forth by affidavit or other evidence specific facts to support their claim. Standing is particularly difficult to show here, since third parties, rather than respondents, are the object of the Government action or inaction to which respondents object. Pp. 559-562.
(b) Respondents did not demonstrate that they suffered an injury in fact. Assuming that they established that funded activities abroad threaten certain species, they failed to show that one or more of their members would thereby be directly affected apart from the members' special interest in the subject. See Sierra Club v. Morton, 405 U. S. 727, 735, 739. Mfidavits of members claiming an intent to revisit project sites at some indefinite future time, at which time they will presumably be denied the opportunity to observe endangered animals, do not suffice, for they do not demonstrate an "imminent" injury. Respondents also mistakenly rely on a number of other novel standing theories. Their theory that any person using any part of a contiguous ecosystem adversely affected by a funded activity has standing even if the activity is located far away from the area of their use is inconsistent with this Court's opinion in Lujan v. National Wildlife Federation, 497 U. S. 871. And they state purely speculative, nonconcrete injuries when they argue that suit can be brought by anyone with an interest in studying or seeing endangered animals anywhere on the globe and anyone with a professional interest in such animals. pp. 562-567.
(c) The Court of Appeals erred in holding that respondents had standing on the ground that the statute's citizen-suit provision confers on all persons the right to file suit to challenge the Secretary's failure to follow the proper consultative procedure, notwithstanding their inability to allege any separate concrete injury flowing from that failure. This Court has consistently held that a plaintiff claiming only a generally available grievance about government, unconnected with a threatened concrete interest of his own, does not state an Article III case or controversy. See, e. g., Fairchild v. Hughes, 258 U. S. 126, 129-130. Vindicating the public interest is the function of the Congress and the Chief Executive. To allow that interest to be converted into an individual right by a statute denominating it as such and permitting all citizens to sue, regardless of whether they suffered any concrete injury, would authorize Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to "take Care that the Laws be faithfully executed," Art. II, § 3. Pp. 571-578.

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Tarquini, S., de’ Michieli Vitturi, M., Jensen, E.H., Pedersen, G. B. M., Barsotti, S., Coppola, D., Pfeffer, M. (accepted) Modeling lava flow propagation over a flat landscape by using MrLavaLoba: the case of the 2014–2015 eruption at Holuhraun, Iceland. Annals of Geophysics.
S.R. Gíslason, G. Stefánsdóttir, M.A. Pfeffer, S. Barsotti, Th. Jóhannsson, I.Galeczka, E. Bali, O. Sigmarsson, A. Stefánsson, N.S. Keller, A. Sigurdsson, B. Bergsson, B. Galle, V.C. Jacobo, S. Arellano, A. Aiuppa, E.S. Eiríksdóttir, S.Jakobsson, G.H. Guðfinnsson, S.A. Halldórsson, H. Gunnarsson, B. Haddadi, I. Jónsdóttir, Th. Thordarson, M. Riishuus, Th. Högnadóttir, T. Dürig, Pedersen, G. B. M., Á. Höskuldsson, M.T. Gudmundsson (2015) Environmental pressure from the 2014–15 eruption of the Bárðarbunga volcano, Iceland, Geochem. Perspect. Lett 1, 84-93.
Pedersen, G. B. M. (2014) Chaos Terrain. In: Hargitai, H., Kereszturi (eds.) Encylopedia of Planetary Landforms. Springer, Berlin, Germany.
Pedersen, G. B. M. (2014) Ring-mold craters. In: Hargitai, H., Kereszturi (eds.) Encylopedia of Planetary Landforms. Springer, Berlin, Germany.
Pedersen, G. B. M., 2013. Frozen Martian lahars? Evaluation of morphology, degradation and geologic development in the Utopia – Elysium transition zone. Planetary and Space Science, doi:10.1016/j.pss.2013.05.020.
Pedersen, G. B. M., Head III, J. W., 2010. Evidence of widespread degraded Amazonian-aged ice-rich deposits in the transition between Elysium Rise and Utopia Planitia, Mars: Guidelines for the recognition of degraded ice-rich materials. Planetary and Space Science, doi:10.1016/j.pss.2010.09.019.
Pedersen, G. B. M., Head III, J.W., 2010. Chaos formation by sublimation of volatile-rich substrate: Evidence from Galaxias Chaos, Mars. Icarus, doi:10.1016/j.icarus.2010.09.005.
Pedersen, G. B. M., Morales, J., Einarsson, P., Vilmundardóttir, O. K., Sigurmundsson, F. S., Belart, J. M. C., Hjartardóttir, Á.R., Kizel, F., Rostuwicz, R., Falco, N., Gísladóttir, G., Benediktsson, J.A. (in review) Historical lava fields at Hekla volcano, SW Iceland. Jökull.
Pedersen, G. B. M. et al. (in prep.) Open benchmark repository of the Hekla volcano.
Pedersen, G. B. M. et al. (in prep.) Glacier development and ice-volcano interactions on Hekla volcano.
Pedersen, G. B. M., Grosse, P. (in prep.) Morphometric analysis of tuyas in the neovolcanic zone, Iceland.
Friedl, B., Hölbling, D., Diettrich, J., Tiede, D., Saemundsson, T., Gudmundsson, S., G. B. M. Pedersen Delineation of rock avalanche deposits on glaciers from different remote sensing data. Presented at EGU, Vienna, Austria.
G. B. M. Pedersen, J. M. C., Magnusson, E., Vilmundardóttir, O. K., Kizel, Falco, N., F., Sigmundsson, F. S., Gísladóttir, G., Benediktsson, J. A. The evolution of Hekla volcano in the 20th century: Integrating remote sensing data from the past 70 years. Presented at Nordic Geological Winter Meeting, Copenhagen, Denmark.
G. B. M. Pedersen, Vilmundardóttir, O. K., Kizel, F., Falco, N., Sigmundsson, F. S., Belart, J. M. C., Gísladóttir, G., Benediktsson, J. A. Environmental mapping and monitoring of Iceland by remote sensing (EMMIRS). Presented at Nordic Geological Winter Meeting, Copenhagen, Denmark.
G. B. M. Pedersen, A. Höskuldsson , T. Dürig, T. Thordarson, I. Jónsdóttir, M.S. Riishuus, B.V. Óskarsson, S. Dumont, E. Magnusson, M.T. Gudmundsson, F. Sigmundsson, V.J.P.B. Drouin, C. Gallagher, R. Askew, J. Guðnason, W.M. Moreland, P. Nikkola, H. I. Reynolds, J. Schmith. 2017. Lava field evolution and emplacement dynamics of the 2014-2015 basaltic fissure eruption at Holuhraun, Iceland. Presented at IAVCEI, Portland, USA.
Dumont, S., F. Sigmundsson, A. Hooper, K. Vogfjörd, S. Hreinsdóttir, B. Ófeigsson, M. Pfeffer, D. Coppola, S. Barsotti, M. Ripepe, E. Eibl, C. Bean, E. Heimisson, M. Parks, M. T. Gudmundsson, K. Jónsdóttir, V. Drouin, G. B. M. Pedersen, Á. Höskuldsson, S. Halldórson and the IES field team. 2017. Spatial and temporal evolution of the plumbing system feeding the 2014-2015 fissure eruption at Holuhraun (Iceland) inferred from a multi-disciplinary approach. Presented at IAVCEI, Portland, USA.
Belart, J. M. C., G.B.M. Pedersen, F. Kizel, E. Magnusson, O. K. Vilmundardóttir, N. Falco, F. S. Sigurmundsson, G. Gísladóttir, S. Tarquini, Mattia de' Michieli Vitturi, J.A. Benediktsson. 2017. The evolution of Hekla volcano in the 20th century: Integrating remote sensing data from the past 70 years. Presented at IAVCEI, Portland, USA.
Vilmundardóttir, O. K., F. S. Sigurmundsson, G.B.M. Pedersen, F. Kizel, N. Falco, J. M.C. Belart, G. Gísladóttir and J. A. Benediktsson. 2017. Examining primary succession for the past 850 yrs on the lava- chronosequence of Hekla volcano in south Iceland. Presented at IAVCEI, Portland, USA.
Vilmundardóttir, O. K., F. S. Sigurmundsson, G.B.M. Pedersen, F. Kizel, N. Falco, J. M.C. Belart, G. Gísladóttir and J. A. Benediktsson. 2017. Examining primary succession for the past 850 yrs on the lava- chronosequence of Hekla volcano in south Iceland. Presented at ESA Portland, USA.
G.B.M. Pedersen, A. Höskuldsson, M. S. Riishuus, I. Jónsdóttir, T. Thórdarson, T. Dürig, M. T. Gudmundsson, S. Durmont and the IES eruption Team. 2017. Lava field evolution and emplacement dynamics of the 2014-2015 basaltic fissure eruption at Holuhraun, Iceland. Presented at JFI, Reykjavík, Iceland.
G.B.M. Pedersen, J. M.-C. Belart, O. K. Vilmundardóttir, N.Falco, F. Kizel, F.S. Sigurmundsson, R. Rustowicz, G. Gísladóttir, and J. A. Benediktsson. 2017. The landscape evolution at Hekla volcano, Iceland: Integrating remote sensing data from the past 70yr. Presented at JFI, Reykjavík, Iceland.
Falco, N., G. B. M. Pedersen, O. K. Vilmundardóttir, J. M.-C. Belart, F. S. Sigurmundsson, F. Kizel and J. A. Benediktsson. 2016. Unsupervised Change Detection for Geological and Ecological Monitoring via Remote Sensing: Application on a Volcanic Area. Presented at AGU, San Francisco, USA.
Rossi, C., G. B. M. Pedersen, S. Dumont, M. Dirscherl. 2016. Geodetic exploitation of the 2014-2015 Bardarbunga unrest: volume variation history and lava tube evolution (155362). Presented at AGU, San Francisco, USA.
Dumont, S., F. Sigmundsson, A. Hooper, S. Hreinsdóttir, B. Ófeigsson, M. Parks, M. Pfeffer, K. Vogfjörd, S. Barsotti, E. Eibl, V. Drouin, E. Heimisson, G. B. M. Pedersen, Á. Höskuldsson, and the IES field team. Constraints on the plumbing system feeding the 2014-2015 fissure eruption at Holuhraun (Iceland) inferred from a multi-disciplinary approach. Presented at 18th General assembly of WEGENER, Ponta Delgada, Azores, Portugal.
Pedersen, G. B. M., O. K. Vilmundardóttir, N. Falco, F. S. Sigurmundsson, R. Rustowicz, J. M.-C. Belart, G. Gísladóttir, and J. A. Benediktsson. 2016. Environmental mapping and monitoring of Iceland by remote sensing (EMMIRS). Presented at EGU, Vienna, Austria.
Pedersen, G. B. M., J. M.-C. Belart, O. K. Vilmundardóttir, N. Falco, F. S. Sigurmundsson, R. Rustowicz, S. Tarquini, M.de' M. Vitturi, G. Gísladóttir, and J. A. Benediktsson. 2016. The landscape evolution at Hekla volcano, Iceland: Integrating remote sensing data from the past 70yr. Presented at EGU, Vienna, Austria.
Pedersen, G. B. M., A. Höskuldsson, M. S. Riishuus, I. Jónsdóttir, T. Thórdarson, T. Dürig, M. T. Gudmundsson, S. Durmont and the IES eruption Team. 2016. Emplacement dynamics and lava field evolution of the flood basalt eruption at Holuhraun, Iceland: Observations from field and remote sensing data. Presented at EGU, Vienna, Austria.
Vilmundardóttir, O. K., F. S. Sigurmundsson, G.B.M. Pedersen, N. Falco, R. Rustowicz, G. Gísladóttir, J. A. Benediktsson, 2016. Habitat mapping using hyperspectral images in the vicinity of Hekla volcano in Iceland. Presented at EGU, Vienna, Austria.
M. T. Gudmundsson, T. Dürig, T. Hognadottir, A. Hoskuldsson, H. Bjornsson, S. Barsotti, G. N. Petersen, T. Thordarson, G. B. M. Pedersen and M. S. Riishuus., 2015 Large, Moderate or Small? The Challenge of Measuring Mass Eruption Rates in Volcanic Eruptions. Paper for AGU, San Francisco, USA.
T. Thordarson, A. Hoskuldsson, I. Jónsdottir, G. B. M. Pedersen M. T. Gudmundsson., T. Dürig, M. S. Riishuus, W. Moreland, J. Gudnason, C.R. Gallagher and R. A. Askew., 2015. Emplacement and Growth of the August 2014 to February 2015 Nornahraun Lava Flow Field North Iceland. Paper for AGU, San Francisco, USA.
(Invited) T. Thordarson, A. Hoskuldsson, I. Jónsdottir, G. B. M. Pedersen, A. Höskuldsson, M.S. Riishuus, I. Jónsdóttir, M.T. Gudmundsson, F. Sigmundsson, B.V. Óskarsson, V.J.P.B. Drouin, C. Gallagher, R. Askew, W.M. Moreland, T. Dürig, S. Dumont, Þ. Þórdarson and the IES eruption team. Nornahraun lava morphology and mode of emplacement. Paper for IUGG, Prague, Czech Republic.
Pedersen, G. B. M., 2015. Semi-automatic mapping of volcanic landforms based on object-based image analysis and geomorphometry. Paper for IUGG, Prague, Czech Republic.
Tarquini, S., Vittuti, M. D. M., Jensen, E. H., Barsotti, S., Pedersen, G. B. M., Coppola, D., 2015. Simulating the lava flow formed during the 2014-2015 Holuhraun eruption (Bardarbunga volcanic system, Iceland) by using the new F-L probabilistic code. Paper for EGU, Vienna, Austria.
Hoskuldsson, A., Jónsdóttir, I., Riishuus, M., Pedersen, G. B. M., Gudmundsson, M. T., Þórdarson, Þ., Drouin, V. J. P. B. And the Futurevolc IES field work team., 2015. Magma discharge and lava flow field growth in the Nornahraun/ Bardarbunga eruption in Iceland. Paper for EGU, Vienna, Austria.
Jónsdóttir, I., Thórðarson, T., Höskuldsson, Á., Davis, D., Schneider, D., Wright, R., Kestay, L., Hamilton, C., Harris, A., Coppola, D., Guðmundsson, M. T., Durig, T., Pedersen, G. B. M., Drouin, V., Höskuldsson, F., Símonarson, H., Arnarson, G. Ö., Einarsson, M. Ö., Riishuus, M., 2015. Real-time satellite monitoring of Nornahraun lava flow NE Iceland. Paper for EGU, Vienna, Austria.
Pedersen, G. B. M., Höskuldsson, A., Riishuus, M., Jónsdóttir, I., Gudmundsson, M. T., Sigmundsson, F., Óskarsson, B. V., Dürig, T., Drouin, V. J. P. B., Gallagher, C., Askew, R., Moreland, W. M., Dumont, Þórdarson, Þ., 2015. Nornahraun lava morphology and mode of emplacement. Paper for EGU, Vienna, Austria.
Pedersen, G. B. M., Höskuldsson, A., Riishuus, M., Jónsdóttir, I., Gudmundsson, M. T., Sigmundsson, F., Óskarsson, B. V., Dürig, T., Drouin, V. J. P. B., Gallagher, C., Askew, R., Moreland, W. M., Dumont, S., Davies, A., Keszthelyi, L., Hamilton, C. W., Þórdarson, Þ., 2015. Nornahraun lava morphology and emplacement: A new terrestrial analogue for planetary lava flows. Paper for 46th LPSC, The Woodlands, Texas, USA.
(Keynote) Pedersen, G. B. M., Grosse, P., 2014. Insights into subglacial eruptions based on geomorphometry: Broad scale analysis of subglacial edifices in Iceland. Paper for EGU, Vienna, Austria.
(Invited) Pedersen, G. B. M., Grosse, P., 2013. Morphometric analysis of glaciovolcanic edifices in Iceland. Paper for EPSC, London, United Kingdom.
Pedersen, G. B. M., 2013. Frozen martian lahars? Evidence from Utopia-Elysium flows. Paper for IAVCEI, Kagoshima, Japan.
Pedersen, G. B. M., Grosse, P., 2013. Morphometric extraction of the passage zone: Broad scale analysis of subglacial edifices in Iceland. Paper for IAVCEI, Kagoshima, Japan.
Pedersen, G. B. M., Head J. W., 2013. Frozen martian lahars? Emplacement mechanisms and geologic impact of Utopia-Elysium flows. Paper for 44th LPSC, The Woodlands, Texas, USA.
Pedersen, G. B. M., 2012. Diagnostic criteria for icelandic volcanic landforms based on remote sensing data: constraints on morphology and optimization of mapping methodologies. Paper presented at Nordic Geological winter meeting, Reykjavík, Iceland.
Pedersen, G. B. M., 2010. Observed degradation stages of ring-mold craters (RMC): Geomorphic evidence for modification of ice-rich deposits in the transitions zone between Elysium and Utopia Basin, Mars. Paper presented at 41. Lunar and Planetary Science Conference, The Woodlands, Texas, USA.
Pedersen, G. B. M., Head III, J. W., Wilson, L., 2009. Early Amazonian dike swarms in Utopia Basin, Mars: Nature of substrate and estimates of effusion raters. Paper presented at 40th Lunar and Planetary Science Conference, The Woodlands, Texas, USA.
Pedersen, G. B. M., Head III, J. W., 2009. Overview of Possible Ice-Related Morphologies in the transition zone between Elysium and Utopia Basin, Mars. Paper presented at 40th Lunar and Planetary Science Conference, The Woodlands, Texas, USA.
Pedersen, G. B. M., 2009. Dikes and dike swarms on Mars. Paper presented at Magma Chamber Process XV, Aarhus, Denmark.
Pedersen, G. B. M., Head III, J. W., 2008. Amazonian dike swarm in Utopia Basin, Mars. Paper presented at AGU, San Francisco, California, USA.
Pedersen, G. B. M., Head III, J. W., 2008. Geomorphic characteristic for Amazonian dike swarm in Utopia Basin, Mars. Paper presented at EPSC, Münster, Germany.
Pedersen, G. B. M., Hauber, E., Nørnberg, P., 2008. Characteristics of Galaxias Chaos, Mars; Implication for formation models. Paper presented at 39th Lunar and Planetary Science Conference Leage City, Texas, USA.
Pedersen, G. B. M., Wilson, J.R., 2005. Classification of a Meteorite. Paper presented at Magma Chamber Processes XIII, Aarhus, Denmark.
Gunnlaugsson, H. P., Pedersen, G. B. M., Madsen, M. B., 2010. Geologi på Mars. In: Brun, L., Pedersen, K. (eds..) Dansk astronomi i kikkerten. Sangill Grafisk, Danmark. p. 102-111 (Book section).
Pedersen, G. B. M, 2009. Liv i universet- er vi alene ?, Geologisk Nyt v. 01, p. 8 (Book review).
Pedersen, G. B. M., 2008. Mars‘ nordligste feltgeolog- Phoenix Mars Lander. Geologisk Nyt 4, .4-7 (Publication).
Pedersen, G. B. M, 2008. Mars “in action“, Geologisk Nyt v. 01, p.21(Publication).
Pedersen, G. B. M, 2007. The surface of Mars – Boganmeldelse, Geolgisk Nyt v. 07, p.8 (Publication).
Pedersen, G. B. M, 2004. Geologi midt I byen – spektakulære fænomener inden for rækkevidde, Geologisk Nyt v. 04, p. 24-25 (Publication).

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The creation of a Unified Patent Litigation System seems to have a lot of political momentum these days, with one proposal following the other at fairly short intervals. This blog discusses the latest Council Presidency proposal of a draft agreement on a Unified Patent Court and draft Statute of 26 October 2011. While a lot of desirable progress has been made, the current draft agreement is still far from being ready for signature and requires both thorough consideration and amendment in several quite important aspects, not least as regards finances.
Notwithstanding obvious differences in nature, certain parallels between the Eurosystem and the planned Unified Patent Litigation System (UPLS) are so striking that one should not dismiss the opportunity to learn from them too light-headedly. Both projects have the laudable objective of helping Europe to grow together, harmonizing the different legal and economical systems and realities, easing the creation of a true internal market within the EU and thus strengthening the EU as a whole. Both systems aim at avoiding a waste of money for EU citizens and enterprises, which previously had to adjust to dozens of national peculiarities, rooted more in the accidents of history than in any substantive difference of opinions. As a result, both systems were advocated to Europe as milestones towards unification and to their (future) users as a chance to save considerable sums of money and avoid the inconveniences of having to adjust to national peculiarities.
At the same time, however, both systems suffer from surprisingly similar and equally fundamental birth defects.
1. Firstly, both systems were welcomed by a number of EU member states, but not by all of them, and until now there has been strong disagreement as to whether the Euro was and whether a EU patent and a Unified Patent Court (UPC) will be a good idea. Be that as it may, it is at least clear that the purposes of unification, creation of a true internal market and abolishing inconvenient national peculiarities for pan-European enterprises will be compromised if and when the system does not include the entire EU. So far, the UPLS seems to be more generally accepted than the Eurosystem, with 25 of the 27 member states having agreed to an enhanced cooperation to establish a unitary patent and a UPLS. However, in the past few weeks substantive concerns have been voiced both by the European Patent Lawyers Association EPLAW, represented by its German President Dr. Jochen Pagenberg, and by a high-ranking sub-group of the European Patent Reform Consultation Group constituted by the UK IPO, including The Rt Hon Sir Robin Jacob. In my opinion, many of these concerns uttered by experienced practitioners are weighty enough to be taken very seriously and the draft agreement and the accompanying EU Regulation concerning the future EP patent with unitary effect should be amended accordingly to achieve widespread acceptance.
2. Secondly, both systems only harmonized a segment of the EU but failed to harmonize the bigger scheme of which they are part. The monetary union was established without really harmonizing fiscal policy and without endowing the newly created organ of the Union, i.e. the ECB, with the power or at least with a sufficiently clear mission to defend the Euro in case of a crisis. The “patent union” will probably be established without really harmonizing the EU court system and civil procedural law, which has already caused considerable difficulties with regard to the definition of the role of the Court of Justice of the European Union (CJEU) in the new Unified Patent Litigation System (see my contribution to this blog entitled “European Court of Justice Trashes Planned Unified Patent Litigation System” of 8 March 2011). While there is probably no realistic way of harmonizing Europe other than step by step, experience has shown that it may sometimes be better to either approach harmonization more boldly and comprehensively, or to not harmonize a part at all if the harmonized part does not fit into the system.
3. Thirdly, it appears both in the case of the Eurosystem and in the case of the UPLS that a lot of the harmonization that politicians have been unable to achieve among themselves has been left to the system and its evolution in practice. The main task of the European Central Bank is to maintain the euro’s purchasing power and thus price stability in the euro area. However, how exactly this is to be achieved and whether, for example, this task also includes financial measures to rescue the Eurosystem as a whole, even if these measures may possibly later affect the euro’s purchasing power, remains a matter of fierce debate within the ECB’s Governing Council. So even within the ECB, we do not seem to have complete harmonization in regard to very fundamental questions such as the Central Bank’s role and function. Similarly, the main task of the UPLS is to establish a unified patent litigation system. However, the exact shape this is supposed to take is to some degree a matter for speculation. The current state of “harmonization” of infringement proceedings according to the draft agreement is laid down in Art. 15a and is a typically European, messy compromise: thus, we may expect one local or regional division of the new UPC to hear an infringement case together with an invalidity counterclaim and decide on both together (Art. 15a(2)a), either with or without the aid of a court expert (Art. 36), whilst another local or regional division will just hear the infringement case and refer the invalidity case to the central division, either with or without a stay of the infringement case (Art. 15a(2)b), and whilst a third division may give up right from the beginning and refer the whole case to the central division (with the agreement of the parties) according to Art. 15a(2)c. So in other words, the harmonization consists in all local or regional divisions having the discretion to do basically whatever they want, so that all courts can continue with their previous local practice, but now under a European hat and (at least this much is prescribed in Art. 6 (1)) in a moderately multinational composition, i.e. two local judges plus one of a different nationality. Real harmonization is then left to the UPC judges among themselves, or perhaps to the court of appeal, and finally to a revision by the Administrative Committee six years after entry into force of the agreement or once 2000 infringement cases have been decided, whichever is later (Art. 58d), provided we ever get there. It is no secret that at least many UK IP practitioners and judges hope that this will then finally put an end to the German bifurcation system in the UPLS, given that Germany only has one vote in the Administrative Committee, like any other state.
4. Fourthly, I dare say that both systems were created without a sufficiently thorough consideration of the costs and risks, particularly the costs and risks in the case of a (be it financial or judicial) crisis. It indeed seems that the politicians creating both systems did not foresee crises as possible developments, for which adequate precautions should be taken. Even worse, in the case of the UPLS, the question of who is to finance the system has still not really been resolved, to put it mildly. The current Draft agreement buries everything in two laconic sentences of Art. 18 (1), i.e. “The budget of the Court shall be financed by the Court’s own financial revenues. The budget shall be balanced.” What this actually means for parties filing an action in the UPC and, in particular, how this is to be accomplished in the first few years of the court’s existence, i.e. when parties may still opt-out of using the UPLS, and even later in the (hopefully unlikely) case that the court is not widely accepted by the users of the system, remains a mystery. To get a feeling for the order of magnitude of the likely costs, let us do some maths, based on a number of simplified assumptions, as follows: A judge at the CJEU has an annual pre-tax salary of roughly 250,000€ (http://www.europarl.europa.eu/parliament/expert/staticDisplay.do?id=39). Let us assume, for the sake of simplicity, that the UPC judges will be paid somewhat less, say 200,000€ p.a. on average. (Note that the exact remuneration of the judges has not been worked out in the draft agreement and will be left to the Administrative Committee.) The UPLS will likely have 25 member states, so let us further assume, for the sake of simplicity, that there will be 25 local divisions. True, Germany may want to establish three local divisions, but let us hope that some other states agree on setting up a regional division rather than insisting on their own local division. Very unfortunately, the current draft provides no obligation and no incentive whatsoever to set up regional divisions – so nothing will hinder even very small states with no significant history of patent cases from setting up their own local division of fairly well paid European patent judges at the expense of the UPLS as a whole. Again for the sake of simplicity, let us assume that each local division only consists of one panel of three judges (even though more are possible according to the draft agreement). This makes 75 first instance judges to begin with. Add to this 10 judges for the central division of the first instance court and (initially) 15 judges for the Court of Appeal and we end up with a fairly conservative estimate of about 100 judges with a total annual salary of 20 million €. Do not forget that these judges will need staff, such as a registry etc., so we shall estimate very roughly a quarter of this sum for them, which brings us to 25 million €. It must further be considered that many of the judges will have to travel across Europe quite a bit and so we shall budget 10,000 € per judge and year as expenses, i.e. another million. Add one more million for translation services to be provided by the court pursuant to Art. 31 of the draft agreement and for the planned internal training of the Court (Art. 9 draft Statute) and we are talking about annual costs of the UPLS in the order of 27 million €.
Thus, if the budget is supposed to be balanced, this will roughly be the sum that the users of the system will have to pay for their litigations. Assuming that the UPC deals with 500 new cases per year, you will end up with average court fees per case of 54,000 €. But is it really realistic to expect that the UPC will receive more than 200 cases p.a. in the first two years, i.e. during a period when many IP stakeholders may still be cautious? Take this figure as a basis, and you end up with average court fees per case of 135,000 €. Neither of these two figures is inconsiderable and even the lower of the two is considerably higher than the comparatively high court fees in Germany, which amount to about 31,000 € for an average case with a value of the matter in dispute of 1 million €. While I am prepared to be criticized and happy to be corrected in each of my assumptions of this budget estimate, there are two points I would like to make here: (i) the costs of the UPLS should definitely be made more transparent and should be calculated or at least estimated as accurately as possible, otherwise the promise that a UPLS will be beneficial to the users of the system, and particularly SMEs, lacks credibility; and (ii) in my modest opinion, the UPLS cannot even begin to function without a significant initial contribution from the budgets of the member states (as is provided in Art. 19(2) of the Draft Agreement) and without a lot of discipline among those member states where little patent litigation activity has taken place in past years. If each member state insists on having its own local division equipped with four or five judges, then costs of the UPLS will not only become unbearable for the users, but there may also be a considerable unfairness in the workload between the individual local divisions. In my opinion, it would therefore be better to make the right of an individual member state to establish its own local division dependent on a certain minimum number of patent litigation cases in the recent past. However, the current draft simply stipulates in Art. 5(2) that “a local division shall be set up in a Contracting Member State upon its request in accordance with the Statute”. The Statute in turn imposes no conditions on the setting up of a local division other than a request by the member state and a decision of the Administrative Committee. If I understand this correctly, the Administrative Committee cannot say no to any such request. The only obligation of the member state is that it must provide the facilities for the local division.
All in all, the above should have made it abundantly clear that the costs of the UPLS will be significant and could indeed be an absolute killer for the success of the system. They should therefore be made as transparent as possible before any (foul) compromise is concluded, which we might bitterly regret at the end of the day. Namely, even though a failure of the UPLS is certainly less dramatic than a failure of the Eurosystem, one should not underestimate the risks associated with such a failure either: Should industry and particularly SME’s and their advisers consider the quality of the UPC too erratic and/or its costs too excessive, they will most likely turn away from the UPLS, either by opting out according to Art. 58(3) of the draft agreement, or even worse – when opting out is no longer possible – by no longer filing EP applications and instead reverting to the good old national patent applications. In the extreme, this may put the EPO and 40 years of European achievements in the patent field at risk.

matches:
Art. 15
Art. 15
Art. 6
Art. 18
CJEU
Art. 31
Art. 19
Art. 5
Art. 58


Yesterday, the United States Supreme Court held that the Fair Debt Collection Practices Act (“FDCPA”) generally exempts entities that merely engage in nonjudicial foreclosure proceedings, in accordance with state law. In Obduskey v. McCarthy & Holthus LLP, the Court ruled in favor of law firm McCarthy & Holthus LLP, holding that the language of the FDCPA’s general-purpose definition of “debt collector” does not encompass those who enforce security interests by engaging in nonjudicial foreclosure. In light of this decision, law firms and others that undertake steps required by state law to carry out a nonjudicial foreclosure are not, by virtue of those actions, covered by the FDCPA’s main requirements.
The FDCPA covers the activities of “debt collectors.” It broadly prohibits deceptive and abusive practices in connection with the collection of any debts, and imposes an array of other requirements. These requirements include a detailed notice a debt collector must provide in its initial communication with consumers. As was relevant in Obduskey, the Act requires a debt collector to cease collection of a debt upon receiving a verification request from a consumer until the collector provides the consumer with verification of the debt.
Obduskey concerned how the limited-purpose definition of “debt collector” relates to the primary definition of the same term. The presence of the limited-purpose definition could, on one hand, imply that entities principally involved in “the enforcement of security interests”—such as those that commence foreclosure proceedings—are not debt collectors for general purposes under the FDCPA. On the other hand, the limited-purpose definition could simply emphasize the fact that such entities are subject to § 1692f(6) in addition to the rest of the FDCPA. Lower courts had gone both ways on this question, with a majority holding that an entity engaging in the enforcement of security interests is a debt collector for purposes of all of the Act’s requirements.
Foreclosure is a common means of enforcing a security interest under state law. All States provide for some form of judicial foreclosure, a legal action in which a court supervises notice of the foreclosure process, the sale of the property, and the distribution of the proceeds from that sale. More than half the States also provide for nonjudicial foreclosure, in which the foreclosure process is not supervised by a court.
Petitioner Dennis Obduskey obtained a loan to buy a residential property in Colorado. The loan was secured by the property and serviced by Wells Fargo Bank, N.A. Obduskey defaulted on the loan and stopped making payments to Wells Fargo. After repeated attempts to modify the loan, Wells Fargo hired McCarthy & Holthus LLP to pursue a nonjudicial foreclosure under Colorado law.
McCarthy sent Obduskey a letter stating that it had been instructed to commence foreclosure against his property. The letter further stated the amount Obduskey owed to the creditor; noted that McCarthy would assume the amount to be valid unless petitioner disputed it within thirty days; and warned that foreclosure could be commenced before the end of that period. Obduskey alleged that he responded to the letter, asking for verification of the debt, but that he did not receive a response.
McCarthy then took steps necessary to initiate a nonjudicial foreclosure under Colorado law by filing a notice of election and demand for sale with the public trustee. Thereafter, Obduskey filed suit against McCarthy, asserting that McCarthy engaged in debt-collection activity prohibited by the FDCPA by imitating the nonjudicial foreclosure before providing verification of the debt.
In a unanimous decision, the Supreme Court held that entities that engage in nonjudicial foreclosure proceedings in accordance with state law, are not thereby subject to the general provisions of the Act. At the outset, the Court assumed that both of the notices sent by McCarthy were “required under state law” for the nonjudicial foreclosure process. Justice Breyer’s opinion for the Court then identified three considerations that led it to rule for McCarthy.
The Supreme Court’s decision in Obduskey is a substantial limit on FDCPA liability for enforcing security interests through nonjudicial foreclosure, and therefore is significant both for the entities that carry out the nonjudicial foreclosure and the creditors, including financial institutions, that hire law firms and others to enforce their security interests. Entities that undertake nonjudicial foreclosure are not subject to the FDCPA’s main provisions, at least to the extent that they hew to the nonjudicial-foreclosure procedures dictated by state law.
The Court’s holding in Obduskey is especially important because it protects against a conflict between state law and the FDCPA that had been imperiling businesses’ ability to use the nonjudicial foreclosure process in certain States. In regions that had followed a contrary rule before Obduskey, holders of security interests were often left in a difficult bind: they had to choose between complying with state-law requirements for conducting a foreclosure and complying with potentially incompatible FDCPA requirements. A failure to comply with state law would cast doubt on the validity of a subsequent foreclosure sale, but an FDCPA violation could lead to costly litigation and potential liability. Because of the Supreme Court’s decision, businesses will no longer face that dilemma in the nonjudicial foreclosure context, and will be entitled to use that process in the States that have chosen to make it available.
Questions remain after the Court’s decision, however. In particular, litigation is likely to determine which actions related to a nonjudicial foreclosure but not required by state law fall outside the Court’s reasoning. At least in Justice Sotomayor’s view, regularly threatening to undertake a nonjudicial foreclosure that an entity does not in fact intend to initiate, is far enough removed from nonjudicial foreclosure activity that it would bring an entity into the general-purpose definition. What courts will decide about this question and other activities related to nonjudicial foreclosures remains to be seen.
Finally, the Court left open the question whether judicial foreclosure activities are also exempt from the FDCPA. Judicial foreclosures enforce a security interest through a court action, and the activity occurs under a court’s supervision. A deficiency judgment against a debtor is available in many judicial foreclosures, although entities do not always pursue the deficiency. Much of the Court’s rationale in Obduskey would seem to apply to judicial foreclosures, and the decision therefore opens up arguments that undertaking judicial foreclosure activity is similarly insufficient to subject an entity to the FDCPA’s main provisions. But because the Court’s opinion did not speak to the issue, it is likely to be the subject of future litigation.
 Obduskey v. McCarthy & Holthus LLP, No. 17-1307 (U.S. Mar. 20, 2019).
 Paul, Weiss served as appellate counsel to McCarthy & Holthus LLP in this matter.
 15 U.S.C. § 1692d, 1692e, 1692f.
 See, e.g., 15 U.S.C. § 1692b, 1692c, 1692g.
 15 U.S.C. § 1692a(6); Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1721 (2017).
 Obduskey, slip op. at 5 (collecting cases).
 Obduskey v. Wells Fargo, No. 15-cv-1734, 2016 WL 4091174, *3 (D. Colo., July 19, 2016).
 Obduskey v. Wells Fargo, 879 F.3d 1216, 1223 (10th Cir. 2018).
 Obduskey, slip op. at 10.
 Id. at 8–9 (quoting Arlington Cent. Sch. Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 299 n.1 (2006)).
 Obduskey, slip op. at 9.
 Obduskey, slip op. at 1 (Sotomayor, J. concurring) (quoting Obduskey, slip op. 13–14 (majority opinion)).


During the past decade, the White House, Congress and the IRS have threatened on numerous occasions to reduce or eliminate the tax benefits of carried interests ("promotes" in the real estate world). In 2009, legislation was introduced that would have taxed all income from carried interests as ordinary income. That proposed bill and similar efforts in later years failed in the face of strong opposition. The 2017 Congress took a moderate approach to scaling back the benefits of a carried interest. IRC § 1061 increases the holding period required for long-term capital gains treatment from more than one year to more than three years for an "applicable partnership interest." Although this provision won't affect many holders of incentive equity, professionals who work in the hedge fund, private equity or real estate industries will need to keep IRC § 1061 in mind when structuring their compensation arrangements.
IRC § 1061 doesn't change the basic favorable treatment of carried interests or other grants of profits interests. Profits interests, including carried interests, continue to be nontaxable at the time of issuance. Subject to the new three-year holding period under IRC § 1061, the holder of a carried interest continues to enjoy long-term capital gains treatment (not subject to employment taxes) from the sale of partnership assets, or the sale or redemption of the carried interest.
Prior to the enactment of IRC § 1061, a hedge fund professional might be issued a carried interest on Tuesday and a day later share in an allocation of long-term capital gains if the partnership sold a capital asset held for more than a year. The same hedge fund manager could sell his interest after a year and claim long-term capital gains treatment (subject to ordinary income for "hot assets" under IRC § 751 and perhaps sweating the impact of Revenue Procedure 93-27's two-year holding period requirement). Today, this same hedge fund professional would have short-term capital gains on the sale of both the partnership's capital asset and his carried interest.
IRC § 1061 could apply to carried interests issued to hedge fund or private equity professionals, but the holding period for hedge fund assets is often less than 12 months and for PE firms often more than three years, which reduces the potential impact of the three-year holding period requirement. The three-year holding period requirement could have an impact on the tax treatment of a carried interest (promote) issued to a real estate professional. In the past, some real estate deals development projects have included a put or sale of the professional's interest after a year. As discussed below, the apparent exclusion of depreciable real estate (Section 1231 property) from the reach of IRC § 1061 may provide a useful workaround for real estate professionals.
Within the real estate industry, the developer/sponsor often bears the most entrepreneurial risk associated with a project. The developer/sponsor may identify and secure the property, obtain necessary governmental approvals, provide or source the capital and financing, manage the development and construction team of architects, engineers and contractors, and assume personal responsibility for cost overruns. As compensation for the developer's/sponsor's expertise, efforts, contributions and risk taking, the compensation package will often include a carried interest providing for an extra share of profits upon sale of the project. A typical deal would be one where the developer/sponsor has no significant cash investment in the project, but is issued a profits interest with a 20% share of profits after a return of the investors' capital. Like real estate developers/sponsors, professionals in the hedge fund and private equity industries are compensated for their entrepreneurial risk with carried interests.
IRC § 1061 applies only to an "applicable partnership interest"
IRC § 1061 increases the required long-term capital gains holding period for an applicable partnership interest from more than one year to more than three years. Understanding what is and what isn't an applicable partnership interest is critical from a planning standpoint.
For purposes of IRC § 1061, a "capital interest" is defined to include "any capital interest in the partnership which provides the taxpayer with a right to share in partnership capital commensurate with (i) the amount of capital contributed (determined at the time of receipt of the partnership interest), or (ii) the value of such interest subject to tax under IRC § 83 upon the receipt or vesting of such interest." If a hedge fund professional is issued a capital interest, his pro rata share of profits based on invested capital is not an applicable partnership interest. For example, if the hedge fund professional and three investors each contribute $2 million in exchange for 25% LLC interests, then the hedge fund professional's interest would not be an applicable partnership interest.
If the hedge fund professional in the previous paragraph was issued an additional 20% interest in profits after return of each investor's $2 million investment, then this additional interest would have the economic features typically associated with a profits interest and would be potentially be subject to IRC § 1061.
The tax treatment of a profits interest is generally governed by Revenue Procedure 93-27. New regulations were proposed in 2005 that would have replaced Revenue Procedure 93-27, but the regulations were never finalized. Under Revenue Procedure 93-27, a "profits interest" is a partnership interest that would not entitle the holder to a share of the proceeds if partnership assets were sold for their fair market value and the net sale proceeds were distributed to the partners in liquidation. If a partnership interest qualifies as a profits interest, the service provider is not taxed upon receipt, the interest is a capital asset in the hands of the service provider, and the service provider is considered a partner and as such will be issued a Schedule K-1.
The IRS detailed three exceptions to this general treatment: (1) if the profits interest relates to a substantially certain and predictable stream of income; (2) within two years of receipt, the service provider disposes of the profits interest; and (3) a profits interest in a "publicly traded partnership" within the meaning of IRC § 7704(b). Of the three exceptions to profits interest treatment, the two-year holding period is a potential planning issue. But from the standpoint of IRC § 1061, the two-year holding period only matters if the partnership interest is subject to vesting and no IRC § 83(b) election is made. The greatest risk of a disposition of an unvested profits interest within the two-year period is that the proceeds would be taxable as compensation under IRC § 83 (so don’t take a chance and make the IRC § 83(b) election). In the pre-IRC § 1061 era, if the plan included the possible sale or redemption of the carried interest during the first 24 months, a reasonably safe approach would have been to have the service provider contribute $1,000 in connection with the issuance of the interest. The interest would then be a capital interest subject to immediate taxation under IRC § 83, but the service provider would often take the position that the value of the interest at the time of issuance was only $1,000.
Assuming the interest has vested or the IRC § 83(b) election has been made, the issue of whether the interest was taxable under IRC § 83 when issued, or nontaxable under Revenue Procedure 93-27, won't change the analysis for purposes of IRC § 1061. In either case, IRC § 1061 potentially treats the portion of the interest that would otherwise be defined as a profits interest (using the Revenue Procedure 93-27 test) as an applicable partnership interest subject to the three-year holding period requirement. It is worth keeping in mind that while not all profits interests are applicable partnership interests for purposes of IRC § 1061, all applicable partnership interests will have the economic features associated with a profits interest. A difference between a profits interest and an applicable partnership interest is that Revenue Procedure 93-27 doesn't contemplate splitting an interest into separate "capital interest" and "profits interest" components.
In order for a partnership interest to be an applicable partner interest, it must be issued in connection with the performance of substantial services in an "applicable trade or business"
An applicable trade or business is an activity that consists, in whole or in part, of (a) raising or returning capital, and (b) either (1) investing in or disposing of "specified assets," or (2) developing specified assets. Specified assets include securities, commodities, real estate held for rental or investment, options or derivative contracts with respect to the foregoing assets, or an interest in a partnership to the extent of the partnership's interest in the foregoing assets. Developing specified assets occurs if representations are made to investors, lenders, regulators, or others that the value, price, or yield of a portfolio business may be enhanced or increased in connection with the service provider's choices or actions.
The preceding rules brings most profits interests issued to financial and real estate professionals in deals involving investors within the potential scope of IRC § 1061. For example, if a PE fund's portfolio company (e.g., an auto parts supplier) issues a profits interest to the PE firm (e.g., a 20% back-end interest that kicks in after return of the fund's initial investment), that carried interest would be subject to IRC § 1061. If the PE firm issues profits interests as part of compensating its management team, those profits interests are also likely to fall within the scope of IRC § 1061, as the PE firm is engaged and the management team are working in an "applicable trade or business." But if the auto parts supplier issues profits interests to its operating management team as part of its incentive plan, those profits interests would not be subject to IRC § 1061 because the auto parts supplier isn't engaged in an applicable trade or business. IRC § 1061 has no applicability to an incentive compensation plan adopted by a business that is not engaged in an applicable trade or business.
The second sentence of IRC § 1061(c)(1) provides that a profits interest is not subject to IRC § 1061 if it is "held by a person who is employed by another entity that is conducting a trade or business (other than an applicable trade or business) and only provides services to such other entity." If John is the CEO of a PE firm's portfolio company and is rewarded with the grant of a profits interest in the PE firm's limited partnership, the preceding sentence would appear to take that interest outside the scope of IRC § 1061.
IRC § 1061 provides that it doesn't apply to profits interests issued to corporations. But does this mean that a profits interest held through an S corporation escapes IRC § 1061? The IRS has indicated that it will issue administrative guidance answering this question by confirming that S corporations are not a workaround for avoiding IRC § 1061.
IRC § 1061(b) anticipates that the IRS will issue regulations addressing the circumstances under which the provision would not apply to "income or gain attributable to an asset not held for portfolio investment on behalf of third party investors." It's unclear what this exception is intended to address, but presumably the exclusion could apply to a hedge fund or PE firm's ownership of investment or business assets in LLCs that don't include outside investors. For example, a PE firm might own its own office building and issue incentive units to the PE firm's employees in an LLC holding the office building. This carve-out may have application to profits interests issued to employees by certain "family office" investment firms.
Does IRC § 1061 apply to Section 1231 property?
IRC § 1061(a)(2) implements the increase in the required long-term capital gains holding period by referencing paragraphs (3) and (4) of IRC § 1222 and substituting 3 years for 1 year in those provisions. But this change doesn't appear to directly affect or apply to the separate one-year holding period requirement for IRC § 1231 property (e.g., depreciable real property used in a trade or business, such as rental property). It isn't clear whether this failure to bring Section 1231 property within the scope of IRC § 1061 is intentional, but there are numerous glitches and drafting errors and oversights in the 2017 Tax Act. So, unless IRC § 1061 is amended or the IRS takes some other step to extend the scope of IRC § 1061 to Section 1231 property, it appears that Section 1231 property is excluded. For example, if a partnership sells Section 1231 property with a one-year holding period, the holder of an applicable partnership interest should be entitled to long-term capital gain on his share of the profits, even if he has held his interest for less than three years.
If an interest falls within the scope of an applicable partnership interest, then gain on the sale of capital assets will be recharacterized as short-term capital gains unless the holder satisfies the more than three-year holding period requirement. This more than three-year holding period requirement potentially applies to both the sale of the capital assets by the partnership (i.e., with respect to gain passing through on a Schedule K-1) and the sale of the interest.
If an applicable partnership interest is sold after being held for three years or less, IRC § 751 would apply to treat any gain on "hot assets" as ordinary income (e.g., depreciation recapture, inventory or depreciable real estate held for less than a year) and the balance of the gain would be treated under IRC § 1061 as short-term capital gains.
If an applicable partnership interest is sold after the more than three-year holding period requirement is satisfied, IRC § 751 would apply to treat any gain on "hot assets" as ordinary income and the balance of the gain would be long-term capital gains. But what if the partnership is holding capital assets that don't satisfy the more than three-year holding period requirement? IRC § 1061(d) does apply a look-through concept if the partnership interest is sold to a person related to the taxpayer, but there doesn't appear to be any look-through rule to capture any partnership assets that have less than a three-year holding period. So, gain on the sale of the interest after more than three years would qualify for long-term capital gains treatment in spite of the partnership's shorter holding period for its capital assets.
If a partnership sells a capital asset with a holding period of 24 months, partners would typically be entitled to long-term capital gains treatment on the income passing through on their Schedule K-1s. But if a partner is holding an applicable partnership interest, this gain passing through would be short-term capital gains regardless of whether the holder's interest has satisfied the more than three-year holding period requirement.
If a partnership sells a capital asset with a four-year holding period, the holder of an applicable partnership interest would be entitled to long-term capital gains treatment on the gain passing through on the Schedule K-1, even if his interest had a holding period of less than three years.
The more than three-year holding period requirement appears to apply to applicable partnership interests issued prior to the enactment of IRC § 1061.
Service professionals should keep an eye on possible future guidance from the IRS on whether IRC § 1061 applies to an applicable partnership interest owned through an S corporation.
For real estate professionals, a key planning issue (and opportunity) will revolve around whether Section 1231 property falls within or outside the scope of IRC § 1061. If Section 1231 rental property is excluded, most real estate professionals involved in commercial and industrial property deals won't be forced to plan for the impact of IRC § 1061, unless the deal involves the anticipated sale or redemption of their interest.
If the real estate deal involves investment property potentially subject to IRC § 1061, another planning idea might be to focus on the real estate professional's contributed real or intangible assets. Shifting the real estate professional's interest from a carried interest to an interest issued for contributed capital blunts the impact of IRC § 1061. Some planners are already considering the possibility of having a partnership make a recourse or nonrecourse (secured by the interest) loan to a real estate professional, the proceeds of which would fund the professional's investment in the partnership.
If a real estate professional will be issued a carried interest, then deal terms should include a restriction on the sale of the interest until IRC § 1061's more than three-year holding period is satisfied.
Attorneys at Frost Brown Todd have developed substantial expertise assisting business clients in structuring their incentive compensation arrangements. If you need assistance or would like additional information, contact Scott Dolson or any other member of the Tax Law Practice Group for Tax Law Defined™.


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Skin Logic Expressions for your Wiki!
CURRENT (v. 18) Jun 28, 2018 18:57 CyberSimian Corrected typographical error.
v. 17 Jun 27, 2018 15:07 CyberSimian Corrected typographical errors.
v. 16 Jun 15, 2018 18:23 CyberSimian Added descriptions of string.tolower/toupper/titlecase functions, plus other improvements.
v. 15 Jun 15, 2018 12:10 CyberSimian Made corrections to examples, plus other improvements.
v. 14 Jun 14, 2018 17:58 CyberSimian Revised the description of the string.trim functions, plus general improvements.
v. 13 Jun 13, 2018 08:26 CyberSimian Corrected typographical error.
v. 12 Jun 13, 2018 08:19 CyberSimian Added missing single-quote in example.
v. 11 May 20, 2018 08:40 CyberSimian Made a minor change to the example for "string.contains()".
v. 10 May 19, 2018 17:15 CyberSimian Added an xml example showing the use of "string.contains()".

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Robison, Joleen. Advertising Dolls. Identification & Value Guide. Paducah. Collector Books. 1980. Octavo. Soft cover. Illustrated. Fine copy.
Roche, George. A World Without Heroes. The Modern Tragedy. Hillsdale. Roche. 1987. Octavo. Soft cover. First edition. Fine copy (owner blind stamp).
Roche, George. A World Without Heroes. The Modern Tragedy. Hillsdale. Hillsdale College Press. 1987. Octavo. Soft cover. First edition. Fine copy.
Roche, George. The Fall of the Ivory Tower. Government Funding, Corruption, and the Bankrupting of American Higher Education. Washington. Regnery. 1994. Octavo. Hard cover. First edition. Fine copy (owner blind stamp) in fine dust jacket (in mylar).
Rocke, George Charles III. Frederic Bastiat. A Man Alone. Photo available. New Rochelle. Arlington House. 1971. Octavo. Hard cover. First edition. Fine copy (owner inscription) in near fine (light shelf wear) dust jacket (in mylar).
Rockwell, John. Sinatra. An American Classic. New York. Random House/Rolling Stone Press. 1984. 251 pps. Folio. Hardcover. First edition. Very good copy in dust jacket (in mylar).
Rockwell, John. Sinatra. An American Classic. Photo available. New York. Random House/Rolling Stone Press. 1984. 251 pps. Folio. Hardcover. First edition. Illustrated in black, white and color. Fine (owner inscription on end paper) copy in fine dust jacket (in mylar).
Rockwell, Llewellyn. Speaking of Liberty. Inscribed by the author. Auburn. Ludwig von Mises. 2003. Octavo. Decorated hard cover. First edition. Inscribed by the author. Fine copy (owner blind stamp).
Rockwell, Norman & Stephen Dydo. The Norman Rockwell Family Songbook. Photo available. New York. Galahad Books. 1984. 4to. Hardcover. First edition thus. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Rodale, J.I. Our Poisoned Earth and Sky. Photo available. Emmaus. Rodale. 1964. Octavo. Hard cover. First edition. Fine copy in very good (light shelf wear) dust jacket (in mylar).
Rodengen, Jeffrey L. & Tom Clancy. NRA. An American Legend. Photo available. Fort Lauderdale. Write Stuff Ent. 2002. 304 pps. 4to. Hardcover. First edition. Illustrated in black, white and color. Important reference work. Foreword by Tom Clancy. Fine copy in fine dust jacket (in mylar).
Rodengen, Jeffrey. The History of J.F. Shea Co. Photo available. Fort Lauderdale. Write Stuff. 2004. 4to. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Rodengen, Jeffrey. The Story of Parsons Corporation. Fort Lauderdale. Write Stuff. 2006. 4to. Hardcover. First edition. Illustrated in black, white and color. Related material laid in. Fine copy in fine dust jacket (in mylar).
Rodgers, Dorothy. My Favorite Things. A Personal Guide to Decorating and Entertaining. Photo available. New York. Avenel. 1964. 282 pps. 4to. Hardcover. Reprint. Illustrated in color and black & white. Fine copy in near fine (very light shelf wear) dust jacket (in mylar).
Rodgers, Dorothy. The House in My Head. Photo available. New York. Avenal. 1967. 254 pps. 4to. Hardcover. First edition thus. Illustrated in color and black & white. Important reference work. Fine copy in fine dust jacket (in mylar).
Rodgers, Nigel. Ancient Rome. Photo available. London. Hermes House. Anness. 2008. 4to. Soft cover. First edition. Illustrated in black, white and color. Fine copy.
Rodgers, Richard. The Songs of Richard Rodgers. Photo available. New York. Chappell. 1974. 4to. Soft cover. First edition. Illustrated. Fine copy.
Rodnick, David. Postwar Germans: An Anthropologists Account. New Haven. Yale University Press. 1948. 233 pps. Octavo. Hardcover. First edition. Fine copy in near fine (very light shelf wear) dust jacket (in mylar).
Rodriguez, Richard. Hunger of Memory. An Autobiography. The Education of Richard Rodriguez. Photo available. Boston. David R. Godine. 1981. 195 pps. Octavo. Hardcover. First edition. Fine copy in fine dust jacket (in mylar).
Rodwell, J.M. (translator). The Koran. London. Phoenix. 1994. Octavo. Soft cover. Fine copy.
Roeder, Ralph. Juarez and His Mexico. II. Photo available. New York. Viking Press. 1947. Octavo. Hard cover. First edition. Fine copy.
Roerig, Fred. The Collector's Encyclopedia of Cookie Jars. Photo available. Paducah. Collector Books. 1997. 4to. Decorated hard cover. Revised edition. Illustrated in black, white and color. Fine copy.
Rogat, Yosal. The Eichmann Trial and the Rule of Law. Santa Barbara. Democratic Institutions. 1961. 44 pps. Octavo. Soft cover. First edition. Fine copy.
Rogers, Cedric. Pebble Polishing and Pebble Jewelry. Photo available. London. Hamlyn. 1974. Octavo. Hard cover. Reprint. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Rogers, Dale Evans. The Woman at the Well. Old Tappan. Fleming H. Revell Co. 1970. 192 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in near fine (very light shelf wear) dust jacket (in mylar).

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