Sweeney, Cozy Foye, Mathias J. Diederich (argued), Los Angeles, Cal., for petitioner.
Arnold Ordman, General Counsel., Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Solomon I. Hirsh, Atty. (argued), N.L.R.B., Washington, D.C., for respondent.
Arnold, Smith Schwartz, Laurence D. Steinsapir, Los Angeles, Cal., for the intervenor, International Union, United Automobile, Aerospace Agricultural Implement Workers of America, UAW-AFL-CIO.
Before BARNES and DUNIWAY, Circuit Judges, and HAUK, District Judge.
Hon. A. Andrew Hauk, United States District Judge, Los Angeles, California, sitting by designation.
This proceeding involves a petition of the Aeronca Manufacturing Company to review an order of the National Labor Relations Board requiring the Company to cease and desist from unfair labor practices, to reinstate a discharged employee, Robert Hanke, with back pay, and to post appropriate notices. In its answer, the Board has requested enforcement of its order, which is reported at 160 NLRB No. 35 (August 9, 1966); 1966 CCH NLRB, par. 20,671, p. 26,502; 62 LRRM 1645. Jurisdiction of this court has been invoked pursuant to Section 10(e) and 10(f), as amended, of the National Labor Relations Act, 29 U.S.C. § 160 (e) and 160(f), the unfair labor practices allegedly having occurred in Torrance, California, where the petitioner transacts its business and has its plant.
On June 2, 1965, the Union began an organization drive among the Company's employees and, pursuant to a stipulation for certification which the Company and the Union entered into, a representation election was conducted on September 9, 1965. The Union lost the election, but, on the basis of objections which the Board found to be meritorious, the election was set aside and a new election was directed. During the course of the campaign, the employee, Robert Hanke, was discharged after a minor fracas with a Company foreman who was not his immediate superior.
The Board, in adopting the findings of the Trial Examiner, found that the events surrounding the discharge were accurately summarized in the written statements submitted to Cooper, the manager of quality assurance, by the foreman Citrowski and by two other foremen, Harris and Tremaine, who had been in the immediate vicinity of the episode. In resolving the conflict between the testimony of Citrowski that Hanke had deliberately knocked him against the table and the testimony of Hanke that Citrowski had bumped into him, the Trial Examiner found that "there was an altercation between Hanke and Citrowski during which Hanke nudged Citrowski sufficiently hard as to throw the latter partially off balance."
In addition, the Board, in adopting such findings, found that on "the day that Hanke was discharged, he behaved offensively toward foreman Citrowski (rather than insubordinately as the conduct had been characterized by Cooper) and that he made the so-called threats against the Company."
As a result of these findings, the Board concluded that Hanke had been discriminatorily discharged because "there was nothing in the nature of the misconduct of which Hanke was accused that warranted such extraordinary action" and "there were significant departures from the Company's usual procedures."
The Union filed charges with the Board that the Company had discharged Hanke, in violation of Section 8(a)(1) and (3) of the Act, because of his activities on behalf of the Union, and that the Company, during the course of its pre-election campaign to defeat the Union, had interfered with, restrained and coerced its employees in violation of the same sections of the Act. The Company subsequently filed an answer denying that it had engaged in the unfair labor practices charged.
"Section 8. (a). It shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." ( 29 U.S.C. § 158).
Section 7 provides: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." ( 29 U.S.C. § 157).
"Section 8. (a). It shall be an unfair labor practice for an employer — * * * (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." ( 29 U.S.C. § 158).
Following a hearing held in Los Angeles, California, on March 2 and 3, 1966, the Trial Examiner of the National Labor Relations Board issued his decision finding that the Company had discharged Hanke because of his union activities and had, during its pre-election campaign, interfered with, restrained and coerced its employees in violation of Section 8(a)(1) of the Act, to which decision the Company filed exceptions.
On August 9, 1966, the Board adopted the findings of the Trial Examiner and issued its order requiring that the Company cease and desist from the unfair labor practices, offer to Hanke reinstatement to his former position or an equivalent position, make him whole for any loss of earnings suffered by reason of the discrimination against him, and post the appropriate notices in the form prepared by the Trial Examiner and set forth in the Appendix to his decision.
Thereafter, the Company filed a petition for review, the Board submitted its answer and cross-application for enforcement, and the Union moved for leave to intervene, which was granted. The sole point and only specification of error which the Company presents in its petition for review is that the Board erred in finding and concluding that a substantial motivating reason for Hanke's discharge was his union activities.
The Company contends that Hanke was discharged because, on the morning of August 9, 1965, he had been insubordinate to one foreman and had told two other foremen that he had been keeping a book which contained harmful information about the Company. The Board found, however, that the events of that morning served only as a pretext, and that Hanke would not have been discharged had he not been so active on the Union's behalf.
National Labor Relations Act, as amended, Section 10(e), 29 U.S.C. § 160(e), note 1, supra. See Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 467 (9th Cir., 1966).
"There is more than enough scripture upon the subject to enable any devil to cite some of it for his purpose. We think it quite unnecessary to discuss, much less to try to reconcile, all of the statements made by various judges on the subject, or even all of the statements appearing in the opinions in the cases cited. The statute commands that we examine the record of each case to ascertain whether the findings of the Board are supported by substantial evidence on the record considered as a whole. This is not always easy, and judges may, and sometimes do, disagree about the result. On its facts, each case is unique." Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 469 (9th Cir., 1966).
Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 469 (9th Cir., 1966).
N.L.R.B. v. Walton Mfg. Co., 369 U.S. 404, 407, 82 S.Ct. 853, 855, 7 L.Ed.2d 829 (1962).
342 F.2d 841 (8th Cir., 1965).
Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 470 (9th Cir., 1966), note 5, supra.
"It has long been established that for the purpose of determining whether or not a discharge is discriminatory in an action such as this, it is necessary, that the true, underlying reason for the discharge be established. That is, the fact that a lawful cause for discharge is available is no defense where the employee is actually discharged because of his Union activities. A fortiori, if the discharge is actually motivated by a lawful reason, the fact that the employee is engaged in Union activities at the time will not tie the employer's hands and prevent him from the exercise of his business judgment to discharge an employee for cause." (Emphasis in original).
N.L.R.B. v. Ace Comb Co., 342 F.2d 841, 847 (8th Cir., 1965), note 7, supra.
In essence, then, the task is to determine whether the reasons given by the Company for Hanke's discharge were the real reasons or a mere pretext. With direct evidence of motive or state of mind generally unavailable, it is rare that a trier of fact such as the Trial Examiner can make the necessary determination on anything other than reasonable inferences drawn from the totality of facts, the conglomerate of activities, and the entire web of circumstances presented by the evidence on the record as a whole.
Here we have an election campaign conducted in an atmosphere of anti-union animus and activity which was of sufficient intensity to prevent a fair election. It was in this acidulous and acrimonious aura that Hanke, an employee with a fine record of achievement according to the Company's own standards, was discharged in a most unusual if not bizarre fashion.
Hanke had worked for the Company for more than three years and was regarded as a very good employee. The rating reports from 1962 to 1965 refer to Hanke as "always pleasant," "very reliable," "continues to do an excellent job," and, as late as May 3, 1965, "Bob is doing a very good job, very satisfactory output." However, at the hearing, Cooper made no attempt to explain why he summarily dismissed an employee whom he regarded so highly.
The Board, in adopting the Trial Examiner's findings, concluded that Hanke had been discriminatorily discharged since there was nothing in the nature of the misconduct that warranted such extraordinary action. Moreover, the significant departures from its well-established discharge procedures lend additional factual bases for the Board's conclusion that Hanke's minor fracas with Citrowski was not the motivating reason for his discharge. Contrary to the Company's policy, none of the supervisors had talked with Hanke prior to his discharge nor did the personnel office conduct an investigation of any sort to determine whether the accusations made against Hanke were accurate. Moreover, there is the finding that Cooper, who had never personally discharged an employee during his eleven years as manager of quality assurance, not only made the decision to discharge Hanke, but also assembled the evidence against him and led him through the termination procedures by personally accompanying him while he checked out his tools; by ceremoniously conducting him to the personnel office; and by ostentatiously escorting him to the plant gate — all unique undertakings which Cooper had never assayed in any other discharge case at the plant.
This unusual handling of Hanke's departure provides additional support for the Trial Examiner's finding that here was a highly irregular method of discharging an employee known to be one of the key union organizers. Accordingly, we conclude that the inferences drawn by the Trial Examiner and adopted by the Board are by no means baseless. The Board's findings, that the Company's motives were not limited to a discharge for cause but flowed over into an actual discharge for union activities, are supported by substantial evidence on the record considered as a whole.
During the election campaign, Cooper himself approached Hanke "as a member of the organizers, to see if he could exercise some control or restraint upon the other organizers or upon the organizing committee."
The petition to set aside the order is denied and the cross-application for enforcement is granted.


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INDICTMENT found and returned in the Superior Court Department on January 2, 1998.
A motion to dismiss was heard by Patrick F. Brady, J., and the case was tried before him.
Matthew V. Soares for the defendant.
to allowance of his motion to dismiss. It is not necessary to consider the other issues that Murphy raises.
1. Principles of the rule. A defendant may not, for purposes of a motion to dismiss under rule 36, include in the calculation of the aggregate period of delay those delay days to which the defendant has contributed or those to which he has not objected. Commonwealth v. Marable, 427 Mass. 504 , 507-508 (1998). Time consumed by defense motions, such as motions to suppress or motions for discovery, and, obviously, defense motions for a continuance, is excludable under Mass.R.Crim.P. 36(b)(2), 378 Mass. 910 (1979). [Note 1] Barry v. Commonwealth, 390 Mass. 285 , 298 (1983). If the defendant acquiesces in delay days, those too are excludable. Commonwealth v. Fleenor, 39 Mass. App. Ct. 25 , 27-28 (1995). A defendant in a criminal case is responsible for pressing his case and may not passively watch the clock tick off a year and claim the benefit of the rule. Commonwealth v. Lauria, 411 Mass. 63 , 68 (1991). Commonwealth v. Marable, supra at 507-508.
2. Application of the rule. The underlying crime occurred at the Old Colony Correctional Center on August 13, 1997. Murphy was arraigned on January 15, 1998. Various motions followed: some for a continuance (most by defense counsel and some acquiesced in by defense counsel); several -- by the defense -- for discovery. On appeal, Murphy does not contest that this phase of the proceedings lasted through November 19, 1998, and that the 268 days between January 15, 1998, and November 19, 1998, are excludable under Mass.R.Crim.P. 36(b)(2). Barry v. Commonwealth, 390 Mass. at 298. Commonwealth v. Fleenor, 39 Mass. App. Ct. at 27-28. Thereafter, the case slumbered on a Superior Court trial list in Plymouth County until December 23, 1999. What stirred the case from its dormant state were two pro se motions filed on that date by the defendant Murphy. The first motion asked dismissal of the charges against him for failure to provide a speedy trial, as rule 36 and constitutional standards require. The second motion asked for appointment of new counsel.
trial judge, defense counsel said that "I spoke to [the prosecutor] a number of times about this case and I spoke to the clerk about this case a number of times trying to get some actions on it. . . . I have spoken to the clerks over time. I told them and at each time I was always ready for this case. . . ." The judge turned to the prosecutor for his take on what had happened. "Well," the prosecutor responded, "it's not much different from [defense counsel's] take on what happened, your Honor. The case has sat on this list for a long, long time. Why our number hasn't been called sooner, I don't know. I can tell the Court I've discussed the case, as [defense counsel] has, with the clerks."
We apply to these facts the entrails of the cases discussed in part 1 of this opinion. It would surely have been better if defense counsel had filed a written motion for a speedy trial. The defendant's pro se motion to dismiss demonstrates that it is possible to catch the system's attention. Apprehension about the possibility of a fatal rule 36 violation apparently helped to concentrate the minds of everybody involved. This was not a case, however, in which the defense was wholly passive. Both sides agree that defense counsel made efforts with the session clerks to bring the case up for trial and stated that he was ready. The assistant district attorney did so as well. [Note 5] Those facts place the case more in the category described in Commonwealth v. Spaulding, 411 Mass. at 506-508. Although Barry v. Commonwealth, 390 Mass. at 298 n.16, says that if a trial date passes without entry of an objection by the defendant, the defendant is deemed to have acquiesced in the delay, the Spaulding opinion, at 506, says that if rule 36 were held never to begin to run until the defendant first makes an objection, "the balance of obligations envisioned by the rule" would be upset. No specific trial date was passed. Other cases jumped ahead of the Murphy case on the list.
The plaintiff is entitled to allowance of his motion to dismiss the charges. The order denying the defendant's motion to dismiss the indictments is vacated. [Note 8] The judgment is reversed and order shall be entered dismissing the indictment on which the defendant was convicted.
[Note 1] Rule 36(b)(2)(F) of the Massachusetts Rules of Criminal Procedure excludes periods of delay resulting from continuances if the judge sets forth findings that the continuance serves the ends of justice. The findings may be made orally. The record furnished to us does not provide a basis for ascertaining whether the requisite findings were made, and we proceed on an assumption of regularity in the proceedings.
[Note 2] The court proceeded on the basis that out of 634 days of delay there was a block of more than 365 days in which the defendant was without representation and during which the Commonwealth did not act to bring the case to trial.
[Note 3] Counsel on appeal is not the same lawyer as trial counsel.
[Note 4] Murphy waived his motion for the appointment of new counsel in open court during motion business conducted preliminary to his trial. Asked by the judge about his motion for appointment of new counsel, Murphy replied: "No. I'm satisfied with my present counsel I have now."
[Note 5] The docket and clerk's minutes are prima facie evidence of events in the progress of a case. Barry v. Commonwealth, 290 Mass. at 289 & n.7. In this case, the recollections of the prosecutor and defense counsel do not contravene what appears on the docket, and we give them weight because they are in harmony.
[Note 6] Under Mass.R.Crim.P. 36(f)(2), 378 Mass. 913 (1979), the clerk of the Superior Court of each county is to notify the Administrative Justice for the Superior Court Department "of the status of all cases which have been pending in that court for six months or longer . . . ." By talking to the session clerks about his readiness to try the case, defense counsel pressed the start button on the statutory machinery as amplified by the rule and interpreted by the Reporters' Notes. Our acknowledgment of defense counsel's activity is not tantamount to an endorsement. A letter to the clerk (rather than session clerk) expressing readiness for trial, with a copy to the district attorney would be better, and, as we have said, a motion for speedy trial would be best.
[Note 7] The defendant had no benefit from the trial delay, a consideration that the cases have commented upon; he was already serving a sentence for another crime.
[Note 8] Three indictments were handed up against the defendant. He was acquitted on two of them.

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Agora, Inc. v. Axxess, Inc.
Matthew J. Turner, Baltimore, MD, for plaintiff.
Christopher Schwartz, Holland Knight, LLP, Washington, DC, for defendant.
Plaintiff, Agora, Inc. ("Agora"), a Maryland corporation with its principal offices in Baltimore, has brought this diversity action against defendants Financial-Web.com, Inc. ("F.com"), F.com's predecessor, Axxess, Inc., and its wholly-owned subsidiary, Stock Detective.com, Inc. The gravamen of Agora's claim is its allegation that F.com, in a collection of internet web pages found on the F.com website called "StockDetective.com" ("StockDetective"), published defamatory statements of and concerning Agora by characterizing an online financial newsletter published by Agora, Taipaonline, as an "unpaid promoter" of the securities on which Taipaonline reports. Pending before the court is F.com's motion to dismiss for lack of personal jurisdiction and for failure to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(2) and 12(b)(6).
No hearing is necessary. For the reasons set forth below, I am persuaded that Agora has failed to state a claim upon which relief may be granted. Because I will dismiss Agora's defamation claim, I need not finally determine the question of whether this court may properly exercise personal jurisdiction over F.com.
Defendants are paradigms of modern internet businesses and have a presence outside of their home states only in "cyberspace." Thus, defendants contend that it would be constitutionally impermissible for a state or federal court in Maryland to exercise personal jurisdiction over them on state law claims. Agora has requested an opportunity to conduct jurisdictional discovery. Under the circumstances disclosed by the parties' submissions, I would be inclined to grant the request. For present purposes, however, I am satisfied that Agora has made a sufficient prima facie showing to justify my consideration of the legal sufficiency of its complaint. See Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993) (when the court determines the issue of personal jurisdiction without a hearing, plaintiff's burden is to establish prima facie that personal jurisdiction may be exercised). If my dismissal of this case under Fed.R.Civ.P. 12(b)(6) is reversed on appeal and remanded without any ruling on the personal jurisdiction issue, and if Agora does not consent to the transfer of this case to a district in which the defendants are unquestionably subject to personal jurisdiction, I shall consider further whether to permit jurisdictional discovery.
A complaint should not be dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); accord Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343(1975); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Motions to dismiss for failure to state a claim are "granted sparingly and with caution in order to make certain that plaintiff is not improperly denied a right to have his claim adjudicated on the merits." 5A Charles A. Wright Arthur R. Miller, Federal Practice Procedure, Civil 2d § 1349 at 192-93 (1990).
Rule 8(a)(2) requires only that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). A claimant is not required to "set out in detail the facts upon which he bases his claim" so long as the claim "will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47, 78 S.Ct. 99. Moreover, all well-pleaded factual allegations are assumed to be true and are viewed in the light most favorable to the plaintiff. See Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). Only when the factual allegations in support of a claim are not well-pleaded (e.g., when they are "functionally illegible" or "baldly conclusory," Shuster v. Oppelman, 962 F. Supp. 394, 395 (S.D.N.Y. 1997)), should they not be accepted as true and the claim dismissed.
As set forth in the Complaint, Taipaonline is the internet version of an investment newsletter, Taipan, which Agora has published for more than ten years. It has approximately 50,000 subscribers world-wide.
Since March 1997, F.com has published investment information in the nature of editorial content, stock quotes, financial charts and securities data on publicly-traded companies for its online readers free of charge. In July 1999, F.com began furnishing analyses of the disclosure policies of various securities analysts and stock pickers which, like Agora, publish financial and investment newsletters for the benefit of the investing public.
F.com's newsletter analyses are located within the StockDetective website on a webpage denominated "The List." A hyperlink to The List on the StockDetective page asks the reader "[i]s that a real stock analysis or a paid promotion? Find out if a favorite stock source is merely paid puffery." Clicking on The List hyperlink transports the reader to The List itself, which is a webpage entitled "The Stock Detective Directory of Financial Information Sources Containing Paid Small-Cap Company `Analysis.'"
StockDetective focuses on publicly-traded securities listed on the over-the-counter bulletin board ("OCTBB"), an electronic securities quotation system regulated by the National Association of Securities Dealers ("NASD"). The OCTBB lists small startup companies that have not been listed on any national exchange and are not subject to federal reporting obligations.
The introduction at the top of The List describes stock promoters as a "busy group . . . constantly spinning new hype for the companies they promote." It further identifies what it views as the "latest trend . . . toward promoters who claim no compensation from the companies they're writing about, but allude [sic] to unfettered trading in these companies' shares." Immediately preceding the table of publications named and the StockDetective's ratings of their disclosure policies is an instruction directing the reader to "[c]heck out the key at the bottom of The List for a complete explanation of the disclosure ratings."
Immediately preceding the key to the disclosure ratings referred to at the top of The List page, and found at the bottom, is the hyperlinked instruction, "Important: Please Read Stock Detective Guide to Pseudo-Research and Phony Financial Reports-first" ("the Guide"). When the reader activates the hyperlink to the Guide, the reader is advised that the disclosure rating policies of investment newsletters are critical because, inter alia, "[i]n today's information age discerning unbiased research from paid promotion is often difficult. The distinction is important. In order to make the most informed investment decisions, individuals need to know whether the information guiding their actions consists of real reporting and analysis or mere puffery." The Guide uses the disclosure policies of six publications to illustrate the level of varying kinds of disclosure policies. The Guide makes no direct or indirect reference to Taipaonline.
Upon returning to The List page, the reader finds Taipaonline named along with approximately seventy-five other publications. Taipaonline is listed as an online publication. Its disclosure rating is listed as follows: "unpaid promoter." According to the disclosure rating key provided by F.com, a rating as an "unpaid promoter" signifies "`analysts' or `stock pickers' who claim they are not paid by the companies for publishing reports, but acknowledge that they do or might trade in shares of the companies they're writing about."
The List of 75 publications is a table comprised of three columns. From left to right, the first column lists each publication in alphabetical order; the middle column indicates the nature of the publication, with a hyperlink to that publication's website if the publication is available online; and, the third column indicates StockDetective's analysis of the publication's disclosure policy.
Note: The ratings associated with the publications listed in the above referenced table were compiled by Stock Detective from information or materials believed to be accurate. These ratings are the opinion of the publisher as defined above. This does not purport to be a complete analysis of the aforementioned media. Any person(s) with information which may be contrary to these findings or having information which should be added to this list, is encouraged to contact the editor at editor@stockdetective.com.
[m]embers of the organization, its officers, directors, employees, and associated individuals may have positions in investments referred herein and may add to or dispose of the same.
But while we encourage our editors and analysts to put their own money where their mouth is, the editors, staff, and associates of the Taipan Group, as well as its directors, employees and associated individuals, are prohibited from trading on this information until after the information is published — i.e., at least 3 days after our publication has been mailed to our subscribers.
Agora alleges that it does not provide "paid small caps `analysis.'" Complaint at ¶¶ 17-20. Agora further contends that it does not engage in "pseudo-research" and "mere puffery," but engages in "real reporting and analysis" Id. Finally, Agora contends that it has never received any fees from stock issuers or their representatives to recommend a stock. See id. Agora singles out for particular attention F.com's use of the term "unpaid promoter" in association with Taipaonline. See id. at ¶ 18. Nevertheless, Agora does not contend that Taipaonline's disclosure policy, which Agora acknowledges is directly accessible by a StockDetective reader by way of a hyperlink to Taipaonline's website, is inconsistent with The List's definition of an "unpaid promoter."
Under Maryland law (which the parties agree is applicable in this case), in order to make out a prima facie case of defamation the plaintiff must allege that (1) the defendant made a defamatory communication, i.e., that he communicated a statement tending to expose the plaintiff to public scorn, hatred, contempt, or ridicule to a third person who reasonably recognized the statement to be defamatory; (2) that the statement was false; (3) that the defendant was at fault in communicating the statement; and (4) that the plaintiff suffered harm. See Peroutka v. Streng, 116 Md. App. 301, 311, 695 A.2d 1287, 1293 (1997) (citing Shapiro v. Massengill, 105 Md. App. 743, 772, 661 A.2d 202, cert. denied, 341 Md. 28, 668 A.2d 36 (1995)).
Settled First Amendment doctrine establishes that the burden is on the plaintiff to prove a publication is false before liability may attach under state defamation laws, at least where a media defendant is involved. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 16, 19-20 n. 6, 110 S.Ct. 2695, 111 L.Ed.2d 1 (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-78, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986)); Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180, 183 (4th Cir. 1998). The parties do not dispute the truism that F.com's website is entitled to the same level of First Amendment protection to which any hard-copy financial newsletter is entitled. See Lowe v. S.E.C., 472 U.S. 181, 210 n. 58, 105 S.Ct. 2557, 86 L.Ed.2d 130 (1985) ("To the extent that the chart service contains factual information about past transactions and market trends, and the newsletters contain commentary on general market conditions, there can be no doubt about the protected character of the communications. . . ."); Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 82 L.Ed. 949 (1938) ("The liberty of the press is not confined to newspapers and periodicals . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion."); Ginsburg v. Agora, Inc., 915 F. Supp. 733, 739-40 (D.Md. 1995) (citing Lowe, staing that "there is considerable authority . . . for the proposition that investment newsletters are subject to the same protection under the First Amendment as any other publication"); Reliance Ins. Co. v. Barron's, 442 F. Supp. 1341, 1345 (S.D.N.Y. 1977) (stating that an investment magazine's "expos[ure] to the public in plain language" of information implicit in a company's disclosure under federal securities law was "an important function of a free financial press" which should not be limited by damages actions).
Defendants' principal contention in support of their challenge to the legal sufficiency of the one-count complaint is that plaintiff has sought to base its claim on a statement of opinion whose factual basis is fully disclosed. Though a statement of opinion is not immune from suit, a statement is not actionable unless it asserts a provably false fact or factual connotation. See Biospherics, Inc., 151 F.3d at 184; Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1093 (4th Cir. 1993). In divining the line between statements of fact and opinion, Milkovich places primary emphasis on the verifiability of the statement and examines the statement's language to determine if it may be interpreted as asserting a fact. See Biospherics, Inc., 151 F.3d at 184; Chapin, 993 F.2d at 1093.
Since the determination of whether a statement is capable of a defamatory meaning is a question of law to be determined by the court, see Batson v. Shiflett, 325 Md. 684, 723, 602 A.2d 1191, 1211 (1992); Peroutka, 116 Md. App. at 311, 695 A.2d at 1293, it is my task to "examine for [myself] the statements in issue and the circumstances under which they were made to see whether they are of a character which the principles of the First Amendment . . . protect." New York Times Co. v. Sullivan, 376 U.S. 254, 284-85, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (quoting Pennekamp v. Florida, 328 U.S. 331, 335, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946)). Pursuant to Milkovich, therefore, I must determine whether the alleged statements may reasonably be interpreted as stating or implying actual facts about Agora. See Milkovich, 497 U.S. at 20, 110 S.Ct. 2695 (citing Hustler Magazine v. Falwell, 485 U.S. 46, 50, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988)); Biospherics, Inc., 151 F.3d at 184 (citing Milkovich); Chapin, 993 F.2d at 1093.
The burden, therefore, is on Agora to allege facts which, if proved, would establish, as a threshold matter, the falsity of the alleged defamatory statements that were published by F.com. See Milkovich, 497 U.S. at 16, 19-20, 110 S.Ct. 2695; Conley, 355 U.S. at 46-47, 78 S.Ct. 99; Fed.R.Civ.P. 8(a). Agora asserts that it has met its burden because it has alleged that it does not engage in "mere puffery," that it does not engage in "paid small caps `analysis'" or "pseudo-research" and it is not an "unpaid promoter." Accordingly, it contends, the statements are verifiable as true or false. I reject this simplified approach as inconsistent with controlling case law.
Rather, recognizing that "words have different meanings depending on the context in which they are used and a meaning not warranted by the whole publication should not be imputed," Peroutka, 116 Md. App. at 311-12, 695 A.2d at 1293 (citing Batson, 325 Md. at 723, 602 A.2d at 1211), I am persuaded after a mature review of the allegations of the Complaint and the content of the publication at issue that the statements are not capable of defamatory meaning as to Taipaonline because (1) the statements regarding "real" reporting, "pseudo research," "paid small caps `analysis'" and "mere puffery" (collectively "introductory statements") cannot reasonably be interpreted as stating actual facts about Taipaonline; and (2) when evaluated under Milkovich and Peroutka, the rating of Taipaonline as an "unpaid promoter" is not actionable because it constitutes an expression of opinion based on disclosed or readily available facts. Accordingly, I will grant the motion to dismiss.
The introductory statements, when read in context, indicate that they have the purpose and effect of pointing out that some publications engage in "paid small cap `analysis,'" "pseudo research" and "mere puffery," instead of "real reporting and analysis," and they generally introduce the reader to the asserted relevance of investment newsletters' disclosure policies in evaluating the objectivity of financial and investment reporting. Furthermore, the introductory statements are extracted from and summarize the Guide, which advises the reader in more specific terms of the importance of evaluating newsletter disclosure policies. The Guide illustrates varying disclosure policies by evaluating the policies of six named publications. Taipaonline is not among these named publications. Nowhere within the Guide or the List is Taipaonline named in connection with or in close proximity to the introductory statements.
Thus, in proper context, F.com's use of unquantifiable and indeterminate terms such as "real" and "pseudo," and its generalized characterization of the practice of some publications as "puffery" cannot "reasonably [be] interpreted as stating actual facts" about Agora or its publication. Milkovich, 497 U.S. at 20, 110 S.Ct. 2695 (citing Hustler Magazine v. Falwell, 485 U.S. 46, 50, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988)); Biospherics, Inc., 151 F.3d at 184 (citing Milkovich). Rather, like the statements in Biospherics, in which Forbes magazine characterized the product development by the plaintiff company as "hype and hope," Biospherics, Inc., 151 F.3d at 185, F.com's statements about "real reporting," "mere puffery" and "pseudo analysis" are properly viewed, in context, to consist entirely of subjective, generalized statements about the importance of objectivity in financial reporting through the use of "irreverent and indefinite language." See id.
I have no doubt, moreover, that the defendants' use of the introductory statements, since they are not particularly directed at Taipaonline, is entirely consistent with "the rhetorical hyperbole and imaginative expression which has added much to the discourse of our Nation." Milkovich, 497 U.S. at 16-17, 20, 110 S.Ct. 2695 (citing Hustler Magazine v. Falwell, 485 U.S. 46, 53-55, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988); Biospherics, Inc., 151 F.3d at 184-85; Peroutka, 116 Md. App. at 321, 695 A.2d at 1298.) The use of generalized subjective valuations, rhetorical hyperbole and imaginative expression "negat[es] the impression that the writing is stating fact." Biospherics, Inc., 151 F.3d at 185 (citing Milkovich, 497 U.S. at 21, 110 S.Ct. 2695). These statements cannot, I conclude, form the basis for a defamation action.
I next determine whether publication of the rating of Taipaonline as an "unpaid promoter" is actionable. I conclude on the facts as alleged by Agora that it is not.
Maryland courts remain cognizant of Milkovich's holding that the First Amendment does not create a wholesale defamation exception for anything that might be labeled opinion. See Peroutka, 116 Md. App. at 322, 695 A.2d at 1298; Batson, 325 Md. at 724, 602 A.2d 1191 (citing Milkovich, 497 U.S. at 18, 110 S.Ct. 2695). A statement, "even if expressed in terms of an opinion, can be defamatory under certain circumstances regardless of whether the statement concerns a public figure or private person." Peroutka, 116 Md. App. at 321, 695 A.2d at 1297. When a statement is made in the form of an opinion, it becomes actionable "only if it implie[s] the allegation of undisclosed facts as the basis for the opinion." Id. at 323, 695 A.2d at 1298 (citing Milkovich, 497 U.S. at 19, 110 S.Ct. 2695).
The principle that opinions based on disclosed facts are protected is well established. See, e.g., Biospherics, Inc., 151 F.3d at 185; Chapin, 993 F.2d at 1093 (stating that when "the bases for the . . . conclusion are fully disclosed, no reasonable reader would consider the term anything but the opinion of the author drawn from the circumstances related"); Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1439 (9th Cir. 1995) ("A statement of opinion based on fully disclosed facts can be punished only if the stated facts are themselves false and demeaning."); Moldea v. New York Times Co., 15 F.3d 1137, 114-45 (D.C. Cir. 1994) ("Because the reader understands that such supported opinions represent the writer's interpretation of the facts presented, and because the reader is free to draw his or her own conclusions based upon those facts, this type of statement is not actionable in defamation."); cf. Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724, 731 n. 13 (1st Cir. 1992).
When a statement is made in the form of an opinion, Maryland courts follow the Restatement (Second) of Torts, which distinguishes between "pure" opinions — those based on disclosed or known facts — and "simple" opinion — those based on undisclosed facts. See Peroutka, 116 Md. App. at 323, 695 A.2d at 1298-99. According to the Restatement, in circumstances where the defendant bases his expression of a "derogatory opinion of the plaintiff on his own statement of facts that are not defamatory, he is not subject to liability for the factual statement — nor for the expression of opinion, so long as it does not reasonably indicate an assertion of the existence of other, defamatory, facts that would justify the forming of the opinion." Peroutka, 116 Md. App. at 323, 695 A.2d at 1299 (citing Restatement (Second) of Torts § 566 cmt. c. (1976)).
The example commonly used to illustrate the line between actionable and protected statements of opinion is provided by Milkovich: "[U]nlike the statement, `In my opinion Mayor Jones is a liar,' the statement, `In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin,' would not be actionable." Milkovich, 497 U.S. at 20, 110 S.Ct. 2695; Peroutka, 116 Md. App. at 321, 695 A.2d at 1298 (repeating example).
F.com's rating of Taipaonline as an "unpaid promoter," when analyzed under Peroutka and Milkovich, is fully protectable opinion based on disclosed facts. As alleged in the Complaint, F.com's website clearly discloses the facts upon which its assessment of Taipaonline as an "unpaid promoter" is based. In particular, F.com discloses in the key to The List that it arrived at the opinion that Taipaonline is an "unpaid promoter" because Taipaonline's publishers "claim they are not paid by the companies for publishing reports, but acknowledge that they do or might trade in the shares of the companies they're writing about." Complaint at ¶ 11.
Moreover, F.com puts the reader on notice that the ratings are based on F.com's evaluation of disclosure policies and not on any other undisclosed facts; the rating key informs the reader that the disclosure "ratings are the opinion of the publisher as defined above. [They] do not purport to be a complete analysis of the aforementioned media." Id. Peroutka, 116 Md. App. at 323, 695 A.2d at 1299 (stating that the opinion is protected "so long as it does not reasonably indicate an assertion of the existence of other, defamatory, facts that would justify the forming of the opinion.").
The factual basis for the statement that Taipaonline satisfies F.com's formulation of "unpaid promoter" is confirmable, as acknowledged by Agora, by activating the hyperlink adjacent to Taipaonline's name on The List and accessing Taipaonline's own website. See id. at ¶ 14-15. At Taipaonline's site, the reader can readily review Taipaonline's disclosure policy, which reveals that its "[m]embers, . . . officers, directors, employees, and associated individuals may have positions in investments referred herein and may add to or dispose of the same." Id. at ¶ 16. Further, the disclosure policy reveals that "while we encourage our editors and analysts to put their own money where their mouth is, the editors, staff, and associates . . . as well as its directors, employees and associated individuals, are prohibited from trading on this information until after the information is published — i.e., at least 3 days after our publication has been mailed. . . ." Id.
It is clear from the facts alleged by Agora that, like the statement "Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin," Milkovich, 497 U.S. at 20, 110 S.Ct. 2695; Peroutka, 116 Md. App. at 321, 695 A.2d at 1298, the statement by F.com, which in essence reads "Taipaonline is an unpaid promoter because it claims that it is not paid by the companies for publishing reports but acknowledges that it does or might trade in the shares of the companies it writes about," is not actionable. See Peroutka, 116 Md. App. at 320, 325, 695 A.2d at 1297, 1299 ("If the facts from which a defendant forms his or her opinion are given or are readily available and those facts cannot be proved false, the defendant is not subject to liability for the opinion.").
Agora argues that F.com may still be subject to liability, notwithstanding the disclosure of the facts upon which F.com's opinion was based, because F.com's assessment that Taipaonline rates as an "unpaid promoter" based on Taipaonline's disclosure policy is erroneous. In other words, Agora takes umbrage at F.com's redefinition (for its purposes) of the term "promoter," which Agora contends has an accepted meaning in securities markets. Agora's argument in this regard is based on a flawed interpretation of Milkovich; nothing therein prohibits the appropriation and redefinition of so common a word. Indeed, if the word "murderer" does not enjoy such immutability in the law of defamation, then it is difficult to see why the word "promoter" should be so regarded. Cf. Ollman v. Evans, 750 F.2d 970, 1023 n. 67 (D.C. Cir. 1984) (en banc) (Robinson, C.J., dissenting in part), cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985).
Agora fundamentally misreads the import of the language from Milkovich on which it relies. The Court in Milkovich qualified the principle that an opinion based on disclosed facts is shielded from defamation actions by noting that "[e]ven if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of these is erroneous, the statement may still imply a false assertion of fact." Milkovich, 497 U.S. at 18-19, 110 S.Ct. 2695 (emphasis added).
Agora mistakenly equates an "erroneous assessment" of facts with a disagreeable opinion. This reading runs not only contrary to the well established principle that an opinion based on fully disclosed facts is not subject to defamation actions, but is contrary to the quoted language from Milkovich. Rather than addressing whether the opinion itself is "erroneous," the above quoted passage in Milkovich is directed to the speaker's stated understanding of the facts upon which she bases her opinion. When that understanding, or "assessment" of the facts is "erroneous," or incorrect or incomplete, then the opinion may not be protected. The passage does not purport to create liability in circumstances where, as here, the plaintiff believes an opinion to be "erroneous." Cf. Kapiloff v. Dunn, 27 Md. App. 514, 533, 343 A.2d 251, 264 (1975) ("An opinion is a comment on or an interpretation of fact. It is always related to the facts it purports to interpret. Depending on its conformity with sound critical standards, the opinion may be `sound' or `unsound,' `good' or `bad,' reasonable' or `unreasonable,' but never true or false.'").
Since Agora has not argued that F.com's assessment of Agora's disclosure policy, as that assessment is set forth in F.com's definition of an "unpaid promoter," is erroneous, incorrect, incomplete or inconsistent with the disclosure policy set forth on Taipaonline's website, the opinion that Taipaonline rates as an "unpaid promoter" is fully protected.
For the reasons set forth above, I will grant F.com's motion to dismiss for failure to state a claim upon which relief may be granted.


text:
Babenko, M. M., PhD, Post. Dr. PhD.
Babenko, M. M., Post. Dr. PhD.
Babenko, M. M., Cand.Tech.Sci., Post. Doc.
Babenko, M. M., Pridneprovs'k State Academy of Civil Engineering and Architecture.
Babenko, M. М., Department of reinforced concrete and masonry structures, State Higher Educational Institution "Prydneprovska State Academy of Civil Engineering and Architecture Chernyshevskogo st., 24-A, 49600, Dnepropetrovsk, Ukraine.
Babichenko, V. Ya., Ph.D., Assoc.
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Bambura, A. M., State Enterprise "State Research Institute of Building Structures", Kiev, Ukraine.
Banakh, A. V., Zaporizhzhia State Engineering Academy.
Banakh, V. A., Zaporizhzhia State Engineering Academy.
Barabash, M. S., National Aviation University.
Barabash, M., Dr. Sc., Prof.
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Bardach, A. E., Pridneprovs'ka State Academy of Civil Engineering and Architecture.
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Barsuk, R. V., PhD stud.
Bashev, V. F., Dr. Sc. (Phys.), Prof.
Bashev, V. F., dr. sc. (ph-m.), prof.
Bashev, V. F., df. M. Mr. Prof.
Bashev, V. F., Dr. Sc. (Physics&Math.), Prof.
Baskevich, O. S., Ph.D. N.
Baskevych, O. S., Ph. D., Senior Fellow.
Beketov, A. V., Ph. D., Assos. prof.
Belikov, A, Department of life safety, State Higher Education Establishment "Pridneprovsk State Academy of Civil Engineering and Architecture"
Belikov, A. S., Dr. Sc(Tech)., Prof.
Belikov, A., Department of life safety, State Higher Education Establishment "Pridneprovsk State Academy of Civil Engineering and Architecture"
Belikov, A. S., Dr. Sc. (Tech.), Prof.
Belikov, A. S., Department of life safety, State Higher Education Establishment "Pridneprovsk State Academy of Civil Engineering and Architecture"
Belikov, S. B., Dr. Sci., Prof.
Belikov, А. S., Department of life safety, State Higher Education Establishment "Pridneprovsk State Academy of Civil Engineering and Architecture", 24-A, Chernishevskogo st., Dnepropetrovsk 49005, Ukraine.
Belitskii, D. G., Donbas National Academy of Civil Engineering and Architecture.
Belokon, K. V., Ph. D., Assos.prof.
Benderskyi, E. B., Department of technology, organization and mechanization of construction, Krivoy Rog National University, XXII Party Congress st., 11, 50027, Krivoy Rog, Ukraine.
Benderskyi, Y. B., Department of technology, organization and mechanization of construction, Krivoy Rog National University, XXII Party Congress st., 11, 50027, Krivoy Rog, Ukraine.
Berestyanskaya, A. A., Ukrainian State University of Railway Transport.
Bereza, O. Yu., D.F.-M. N.
Bereziuk, A. G., Sen. Inst.
Berezyuk, A. M., Cand. Sc. (Tech.), Prof.
Berezyuk, А. N., Department of Construction technology, State Higher Education Establishment “Pridneprovsk State Academy of Civil Engineering and Architecture”, 24-A, Chernishevskogo str., Dnipropetrovsk 49600, Ukraine.
Bespalko, V. N., Department of Materials Science, National Metallurgical Academy of Ukraine, pr. Gagarin, 4, 49600, Dnepropetrovsk, Ukraine.
Bessonov, M. M., Харьковский национальный автомобильно-дорожный университет.
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Bondarenko, L. M., к.т.н., доц.
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On December 19, 2003, President Bush signed Pub. L. No. §108-189, making major amendments to the former Soldier's and Sailor's Civil Relief Act (SSCRA, 50 U.S.C. App. §501-594(2000). The new law is called the Servicemembers Civil Relief Act (SCRA) and contains renumbered sections from 101-704. The new legislation is largely based upon a Department of Defense Draft Revision completed in 1991 after the first Gulf War, and updated in 1992 and 2003. According to the Office of the Judge Advocate General, U.S. Army, Legal Assistance Policy Division, the goals of the draft were to make the act easier to read and understand, incorporate into the act many years of judicial interpretation, and to update the act to take into account generally accepted legal practices and new developments in American life. Many of the new sections of the law clarify areas of disagreement among military law experts and make case law interpreting the former SSCRA moot. The new law significantly strengthens the former SSCRA and for the benefit of both the active duty member and his or her dependents.
8) Provides health insurance cancellation protection requiring reinstatement without penalty upon release from active duty without exclusions or waiting periods (§704).
The SCRA applies to each of the 50 states and subdivisions thereof and to all territories subject to the jurisdiction of the U.S. (§102) The act applies to any judicial or administrative proceeding commenced in any court or agency. Criminal proceedings are not covered.
If the defendant is a "servicemember," i.e., is on active military service, the court may not enter judgment until it appoints an attorney to represent the defendant. (§201(a)(2)) The court-appointed attorney must attempt to locate and communicate with the defendant. If the court-appointed attorney cannot locate the defendant, the actions of the attorney in the case do not waive any defense of the servicemember or otherwise bind the servicemember.
This provision is a significant strengthening of the act, by requiring a mandatory 90-day stay if the requirements of the statute are met.
2) A letter or other communication from the servicemember's commanding officer stating that the servicemember's current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter.
In family law proceedings involving support issues, one should not assume that the court will grant a stay or delay of court proceedings simply because the defendant is on active military service. In the modern world, testimony can be presented by videotape, telephonic depositions, or over the telephone. When the issue is temporary child support and alimony, the needed information is primarily financial in nature. Military pay is a matter of public record. The military pay tables are available at www.dfas.mil, the Web site of the Defense Finance and Accounting Service. Thus, it is difficult to see how a stay would be needed or appropriate in most family matters requesting temporary relief. In Massey v. Kim, 455 S.E. 2d 306 (Ga. Ct. App. 1995), the servicemember asked for a delay until the end of his overseas tour. The court denied the request, pointing out improvements in modern communication since the passage of the SSCRA. Similarly, in Keefe v. Spangeenberg, 533 F. Supp. 49 (W.D. Okla. 1981), the court denied the servicemember's request for a delay, pointing out that the member could appear by videotape under the federal rules of civil procedure. Also, if temporary relief is requested, these hearings do not result in final orders; they merely serve to support the family pending the entry of a final judgment and as such, do not prejudice the servicemember's rights. Shelor v. Shelor, 383 S.E. 2d 895 (Ga. 1989). Last, the Welfare Reform Act of 1996 requires that the armed forces issue regulations to grant leave for servicemember's to appear in court and administrative paternity and child support hearings. DOD Directive 1327.5, Leave and Liberty (IO 4, 10 Sept. 1997).
When one stay of proceedings is insufficient, the servicemember may apply for an additional stay based upon continuing material effect of military duty upon the servicemember's ability to appear. Such an application may be made at the time of the initial application for stay or at a later time when it appears that the servicemember will be unable to appear after the first 90-day stay. A second application must contain the same facts and information as required by law in the first application.
If the court in its discretion refuses the additional stay, the court shall appoint counsel to represent the servicemember in the action or proceeding. Under §206 of the SCRA, the statute of limitations is tolled during the period of the servicemember's military service for the bringing of any action or proceeding in a court, board, bureau, commission, or department of a state or political subdivision of a state or the U.S. by or against the servicemember or his heirs, executors, administrators, or assigns.
Under §207 of the SCRA, an obligation or liability incurred by the servicemember or by the servicemember and his or her spouse jointly before the servicemember's entry onto active military service, shall not bear interest at a rate in excess of six percent during the period of military service. Any interest that would have been incurred is automatically forgiven by law. Payments are to be reduced accordingly. However, the servicemember, to take advantage of the act, must, within 180 days of termination or release from active military service, provide written notice and a copy of his military orders to the creditor. A court may grant a creditor relief from the interest rate limitation if, in the opinion of the court, the servicemember's ability to pay the contractual interest is not materially affected by reason of the member's military service. The term "interest" is defined to include renewal charges, service charges, and any other charges (except bona fide insurance) with respect to the obligation.
Under §301 of the SCRA, a landlord, except by court order, may not evict or subject premises to distress of a servicemember or the dependents of a servicemember during a period of military service from premises that are occupied or intended to be occupied primarily as a residence and for which the monthly rent does not exceed $2400, as adjusted year to year by the Consumer Price Index.
Under §301(c) it is a misdemeanor to knowingly take part in an eviction or distress action against a servicemember. Other civil remedies are preserved to the servicemember.
A person who knowingly resumes or attempts to resume possession of property in violation of the law is guilty of a misdemeanor. (§302 (b)) All other remedies the servicemember may have are preserved by law.
Under §303 of the act, a servicemember is afforded protection with respect to real or personal property owned by a servicemember with respect to a contract that originated before military service commenced and for which the servicemember is still liable and which is secured by a mortgage, trust deed, or other security in the nature of a mortgage. In an action filed during, or within 90 days after, a servicemember's period of military service to enforce an obligation secured by a mortgage, the court may on its own motion and shall, on motion of the servicemember, stay the proceedings for the period of time required by justice upon a finding that the servicemember's military service has materially affected his/her ability to comply with the obligation or the court may adjust the obligation to preserve the interests of all concerned. Further, a sale, foreclosure, or seizure of property for breach shall not be valid if made during a period of military service or within 90 days thereafter except upon a court order granted before such sale, foreclosure, or seizure with a return made and approved by the court or if made pursuant to a valid agreement.
A person who knowingly makes or causes to be made a sale, foreclosure, or seizure as provided in the law commits a misdemeanor. (§303(c)) All other remedies the servicemember may have are preserved by law.
2) The servicemember, while in military service, executed the lease and thereafter received military orders for a permanent change of station or to deploy with a military unit for a period of not less than 90 days.
2) The servicemember, while in military service, executes the lease and thereafter receives military orders for a permanent change of station outside of the continental U.S. or to deploy with a military unit for a period of not less than 180 days.
Under §305(c) of the law, the servicemember may terminate leases, in general, by hand delivery or delivery by certified mail, return receipt requested of a written notice of termination, along with a copy of his/her military orders to the lessor, and return to the lessor of the motor vehicle by the servicemember. With respect to premises, the lease termination is effective 30 days after the first date on which the next rental payment is due and payable after the date the notice of termination is delivered. With respect to motor vehicles, the lease is terminated, in general, on the date the written notice and delivery of the motor vehicle is accomplished. The lessor may charge, on a prorated basis, rents or lease amounts accruing before the lease termination but may not impose an early termination charge. Reasonable excess wear, use, and mileage charges are permitted.
Under §307 of the act, a person holding a lien on the property or effects of a servicemember may not, during any period of military service of the servicemember and for 90 days thereafter, foreclose or enforce any lien on such property without a court order. A "lien" includes a lien for storage, repair, or cleaning, or for any other reason.
2) Adjust the obligation to preserve the interests of all parties.
As in other pertinent sections, it is a misdemeanor offense to knowingly violate this section, and all civil remedies are preserved to the servicemember. See §307(c)(1)and (2).
Upon application to the court, a dependent of a servicemember is entitled to the protections of the act if the dependent's ability to comply with a lease, contract, bailment, or other obligation is materially affected by reason of the servicemember's military service. Previous case law excluding dependents from the protection of the act may no longer be valid, in appropriate cases.
Changing the law, the new SCRA provides that a legal representative for a servicemember under the act is either an attorney acting on behalf of a servicemember or an individual possessing a power of attorney. All references in the act to servicemember are to be treated as including a reference to a legal representative of a servicemember. A legal representative can take the same actions as the servicemember himself and can bind the servicemember, thus changing the previous statute found at 50 U.S.C. Appx. 520(3).
The new law significantly enhances protections for the servicemember in the areas of court and administrative proceedings in all states and territories and federal proceedings. The act should be reviewed by all family law practitioners representing individuals on active military service and by all attorneys representing banks, mortgage companies, institutional lenders, and the like. The judiciary is given the ultimate discretion to balance the needs of the servicemember and his or her family against the legitimate claims of creditors. The criminal and civil penalties provided by the act for knowing violations of its provisions should be sufficient to ensure compliance with its provisions and provide stability at home for the servicemember and his other dependents serving here or abroad.
Peter Cushing is a graduate of Syracuse University College of Law and a board certified marital and family attorney. He is a member of the Florida, New York, and Hawaii bars and a captain, Judge Advocate General's Corps, USNR, retired. He has practiced family law in Orlando since 1984.
This column is submitted on behalf of the Family Law Section, Evan R. Marks, chair, and Kristen Adamson-Landau, editor.


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Author dmassiplitigationPosted on March 29, 2019 Categories Complaint, Trademark, Unfair business practiceLeave a comment on Naismith Memorial Basketball Hall of Fame, Inc. v. Naismith’s Pub & Pretzel, Inc. (19-cv-30039).
Author dmassiplitigationPosted on February 11, 2019 Categories Complaint, Trade Dress, Trademark, Unfair business practiceLeave a comment on Plum Island Soap Company, LLC v. Duke Cannon Supply Company, LLC (19-cv-10222).
Author dmassiplitigationPosted on January 24, 2019 Categories Burroughs, Complaint, Trademark, Unfair business practiceLeave a comment on Pure Encapsulations, LLC v. Wind & Sky, Inc. et al. (19-cv-10127).
Author dmassiplitigationPosted on January 18, 2019 Categories Complaint, Trademark, Unfair business practiceLeave a comment on Pure Encapsulations, LLC v. Lean Living, Inc. et al. (19-cv-10113) and Tsalevich et al. (19-cv-10120).
ecobee, Inc. v. Techmatic et al. (19-10047).
Ecobee sued three Amazon sellers, accusing each of obtaining and reselling ecobee products bearing the ecobee trademark without authorization. Ecobee makes a number of automated, “smart” home control products (thermostats, light controls, and the like) which it sells only through authorized resellers. By contract, these resellers are prohibited from selling to anyone other than consumers. Ecobee asserts that the Amazon sellers obtained ecobee products either through fraud or by tortuously interfering with ecobee’s contracts with its authorized resellers. In addition to trademark and tortious interference claims, ecobee asserts unfair competition and false designation of origin. This is the second such case brought by ecobee in Massachusetts in the past several months. Judge Saris has the case.
Author dmassiplitigationPosted on January 11, 2019 Categories Complaint, Saris, Trademark, Unfair business practice1 Comment on ecobee, Inc. v. Techmatic et al. (19-10047).

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DisputeSoft was engaged in 2012 by Alan Williams in the matter of Geologic Computer Systems, Inc. v. John D. Maclean, et al Case No. 2:10-cv-13569 in the United States District Court for the Eastern District of Michigan, Southern Division. Disputesoft prepared a declaration in support of the defendants’ motion for summary judgment. Managing Partner and intellectual property software expert Jeff Parmet proffered an Invalidity Report on behalf of Alan Williams on April 15, 2013, followed by a Non-Infringement Report for Mr. Williams on May 15, 2013. Mr. Parmet’s deposition was taken on June 26, 2013. The case eventually settled.
In 2014, DisputeSoft was engaged as a software intellectual property expert by WestEd in the matter of Douglas James Weihnacht, individually and dba Schematic Media v. WestEd, in the United States District Court for the Northern District of California, Case No. 5:14-cv-01564-BLF. DisputeSoft examined the registered version of “Voyage to Galapagos” for copyright-protectable audio-visual elements and found that the audio-visual elements of the work for which Plaintiff possessed a copyright had in fact been authored by others, all of whom were independent contractors who had not assigned their rights to Plaintiff – and no assignments were produced. DisputeSoft Managing Partner Jeff Parmet proffered an expert report in April 2015. The case settled in July 2015.
DisputeSoft was engaged in September 2008 as a consulting expert for Sony ATV Music Publishing in the matter of Sony ATV Music Publishing v. Cavs USA and Ace Karaoke. DisputeSoft recovered evidence of unauthorized sales of Sony ATV Music’s downloadable works over a period of three years. Our experts developed scripts to retrieve, parse, and sort web-pages from the Internet Archive and other sources, which we used to obtain information concerning the extent of the offers of sale over time and to document them.
DisputeSoft was engaged post-litigation as a software copyright infringement expert by Paycom Payroll in the matter of Paycom Payroll LLC et al v. Richison et al. to confirm that defendant, a former employee of plaintiff, had adhered to a consent order by removing all infringing software from its competitive product.
DisputeSoft was engaged as a testifying expert in July 2007 by Key Power International in the matter of Archonix Services, LLC v. Key Power International, Inc. et al. in the Superior Court of New Jersey, Burlington County. Archonix Services alleged that one of its former employees, now a company executive at Key Power, had helped his new company to misappropriate the intellectual property for a computer-aided dispatch system. DisputeSoft used the abstraction-filtration-comparison (AFC) method to compare the system designed by Archonix to the system designed by Key Power.
DisputeSoft was engaged by Science and Engineering Services, LLC (SES) in the matter of Michael Mohr v. Science and Engineering Services, LLC, in the United States District Court for the Northern District of Alabama, Case No. 5:14-cv-00045. Michael Mohr brought a copyright infringement claim against SES with regard to the Aviation Maintenance Inventory Program (AMIP), software that tracks the parts of disassembled helicopters. DisputeSoft reviewed the source code and metadata of the AMIP program to determine whether Mohr was the original author of the software or if it had been copied from software which he had not written.


The following terms and conditions apply to all goods and services of basICColor GmbH, hereinafter referred to as basICColor. The basICColor terms outlined have precedence over all business, delivery, contract and conditions of purchase. The terms are binding, unless otherwise stipulated in writing by basICColor. This also applies to subsequent transactions, regardless of original terms and conditions. The performance of deliveries and services does not constitute acceptance of the terms and conditions by the customer. The terms and conditions apply only to companies within the context of Civil Code § § 310.14.
2.1. basICColor agreements are subject to change. They are a framework for allowing customer purchase orders. A binding contract requires valid signatures from both basICColor and the customer. The same applies to supplements, amendments or additional agreements.
2.2. Contractual deliverables, including products and services, will be documented appropriately and will require the signature of both parties.
3.1. Delivery and execution times are only binding if confirmed in writing by basICColor. Unless otherwise stated, all agreements will be subject to the discretionary timely delivery determined by basICColor.
3.2. If no other agreement is made, basICColor deliveries will be at its own discretion. The customer bears responsibility for all transport risks. Those risks include delays caused by postal carriers while the products are in transit.
3.3. Software downloaded and licensed via the license server, using basICColor TAN (transaction number) technology, will incur no shipping costs.
3.4. basICColor reserves the right to make partial deliveries, unless the partial delivery is declined by the customer.
4.1. The beginning of the quoted delivery time determines the start of the warranty period as well as support for all technical issues.
4.2. For the fulfillment of our obligation to deliver, we require the timely and proper fulfillment of all obligations by our customers. The defense of breach of contract is reserved.
4.3. Unless the customer is in default of acceptance, or culpably violates his other obligations, compensation must be made to basICColor for damage incurred, including any additional expenses. Further claims remain reserved.
4.4. Insofar as the requirements of the preceding clause, the risk of accidental loss or accidental damage to the products remains with the customer, in which he is fully responsible for the purchase payment.
4.5. basICColor liability is described by the statutory provisions of article § 286 II No. 4 BGB and article § 376 HGB. basICColor liability is also limited by other statutory provisions, unless the customer determines that he wishes to dissolve the contract.
4.6. basICColor is also liable under the statutory provisions, should shipping delays be found to be caused by basICColor acting in a willful or grossly negligent breach of contract. A fault by an agent working on behalf of basICColor shall be attributed to basICColor. If the delivery delay is not due to basICColor's willful breach of contract, then damage compensation will be limited to the actual cost of items.
4.7. In the event that basICColor is ultimately liable under the statutory provisions, for delivery delays due to the culpable breach of a contractual obligation, then, the liability for damage compensation will be limited to the actual documented costs.
4.8. In other matters, where basICColor is found at fault for delayed delivery, liability compensation will be limited to the rate of 5% for each completed week of delay, and a maximum of 20% of the value (four weeks total).
4.9. Further legal claims and rights of clients are subject to articles 4.0 through 4.8.
5.1. All prices are net prices plus the statutory European Value Added Tax.
5.2. Unless otherwise stated in our order confirmation, our prices are ex warehouse Penzberg; exclusive of packing and transportation costs.
5.3. Unless otherwise agreed, we deliver only against advance payment by bank transfer, check, cash or debit. For payments from abroad, we offer EU PayPal funds acceptance. By prior arrangement with known clients, or public institutions or authorities, payment terms may be offered. Deduction of discount requires a prior written agreement.
5.4. If payment is delayed, basICColor will charge an interest fee, at the rate of eight percent above the applicable base rate. Furthermore, in the event of default, basICColor will with hold technical and other support services.
5.5. The customer is not entitled to seek claims against basICColor, unless those claims are legally substantiated, or acknowledged in writing. The customer has the right of retention insofar as his counterclaim might be based on the same contractual framework which binds both parties.
6.1. Customer claims must comply with article § 377 HGB, with regards to inspection and complaint regulations.
6.2. In the event that a defective item has been delivered, the customer can demand a remedy either in the form of repair or of replacement with a new defect-free substitute. In the case of repair, basICColor will bear all expenses which include repairing the defect, transport in both directions, travel, labor, and material costs. This offer is limited to the address to which the original item was delivered. No other responsibility is accepted or implied.
6.3. If subsequent failure occurs, the customer is entitled to either a refund or a credit for the value of the item against another purchase.
6.4. basICColor liabilities are described by the official government legal regulations. Should a user make claim for damages, based on intent, or gross negligence by representatives, or agents for basICColor, the liability for damages is limited to usual and customary compensation.
6.5. In the event of a contractual breach, basICColor liability is limited with accordance to legal regulations, with compensation limited to usual and customary thresholds.
6.6. Unless otherwise described in articles 6.0 through 6.5, liability can not be assigned.
6.7. Any matter regarding liability for culpable violation which results in injury leading to a health or life risk is described within the Product Liability Act.
6.8. The statute of limitations is 12 months from transfer of risk. The limitation period in case of a limitation is described in article § § 478, 479 BGB.
6.9. Should newer software versions become available, claims related to previous software releases will be rejected.
7.2. The right of withdrawal expires prematurely if started basICColor with the execution of the service with the express consent of customers before the end of the revocation period or the customer himself has arranged (eg by downloading, delivery via e-mail, etc.).
7.3. The legislator rules out withdrawing orders of software licenses, if they already sent by e-mail sent or were sent to the user or by downloading the software license.
7.4. Is invariably excluded the revocation or withdrawal of software that is licensed machine specific to the customer, by sending it a license file, or by activating the basICColor online license server. The customer has the means to ensure prior to his order that the 14-day trial version of the product fully meets its requirements.
8.1. Further liability for damages beyond those provided in section 6 is excluded, regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from negligence, breach of duty, or because of other tort claims for property damage pursuant to article § 823 BGB.
8.2. basICColor liability exclusions are extended to the personal liability of our employees, contracted consultants, contracted colleagues, representatives, and agents.
basICColor will transfer customer usage rights to its software. The rights to use the software is considered use of basICColor's intellectual property. The customer wishing to resell the software usage rights must refer the interested party to basICColor's terms of agreement. The validity of the manufacturer's licensing terms require 100% compliance.
basICColor differentiates software updates from software upgrades. Updates to a new version are free of charge to registered license owners. When upgrading to a new version release, the user is extended a "grace period" of 1 month. Within that time frame, the original purchase price will be fully credited. The customer only pays the difference. Previously purchased products can be upgraded with a time-phased price increment. Old update releases are supported for one month following introduction of a recent release. Old version releases are supported for 12 months following an upgrade release. The upgrade cost for licenses more than 3 years old is full retail price.
11.1. basICColor retains title to the goods delivered, until payment for all items has been received. basICColor is entitled to repossess any goods which have not been paid for. The repossession of the goods does not constitute a release from contractual obligations on the part of the customer.
11.2. The customer is obliged to notify basICColor immediately if third parties seize the goods or otherwise intervene in the ownership of basICColor property.
11.3. The customer is entitled to resell the purchased goods. The customer is fully responsible for all claims in the amount of the invoiced amount, including VAT. To collect these claims, basICColor is also entitled to the end customer assignment until further notice. basICColor will not intervene in seeking the assignment as long as the customer fulfills his contractual obligations to basICColor, especially those arising from default of payment, or actions including filing for insolvency proceedings, or suspension of payments. In the event of bankruptcy or reorganization, the customer has to announce those details to basICColor, so that the assigned claims and supporting documents can be remedied through all options available to basICColor.
11.4. basICColor reserves the right to process or transform its property located on the customer site or elsewhere. If basICColor property has been integrated with other entities' property, then basICColor will retain joint ownership of the bundle in proportion to the value of the retail price for said integration. This claim applies both to integrated property as well as property which remains in its stand-alone condition.
basICColor requires that personal information provided to clients be limited to the essential data for contractual purposes only. This applies to all forms of electronic communication. Likewise, any customer supplied data will be used only for the purposes to which the customer has consented. basICColor takes all reasonable precautions to prevent third party access to customer information. basICColor never shares data with third parties.
13.1. All claims based on contractual relationship are governed by German law. UN-Sales Law (CISG) is specifically excluded from each and every condition.
13.2. Legal domain is in Penzberg, and the jurisdiction of Weilheim / Bavaria. Any inquiry specific to parties including commercial clients, legal entities of public law, and public law special fund, should be addressed to this government.
13.3. Any agreement changes or amendments to the basICColor terms and conditions, as well as specific guarantees and agreements, must be in writing.
13.4. If any single provision within these Terms and Conditions become moot, the validity of the remaining provisions shall not be affected. Should a loophole or error of omission be found, upon which other conditions might apply, then both basICColor and the second party shall settle on the presumed, desired, conditions.
13.5. If the user also uses a set of terms and conditions other than those laid out here by basICColor, then the basICColor terms and conditions take precedence. The provisions of standard contract law will take further precedence over all individual clauses in the Terms and Conditions. Exclusions in the basICColor Terms and Conditions also take precedence to the customer Terms and Conditions statement. The basICColor Terms further extend to the customer's end customers.


Section 3901, Pub. L. 90–448, title IV, §402, Aug. 1, 1968, 82 Stat. 513, set out a Congressional statement of purpose for this chapter.
Section 3902, Pub. L. 90–448, title IV, §403, Aug. 1, 1968, 82 Stat. 514, provided Secretary with authority to guarantee obligations.
Section 3903, Pub. L. 90–448, title IV, §404, Aug. 1, 1968, 82 Stat. 514, related to eligible new community development entitled to guarantees under this chapter.
Section 3904, Pub. L. 90–448, title IV, §405, Aug. 1, 1968, 82 Stat. 514, related to eligibility of bonds, debentures, notes, and other obligations under this chapter.
Section 3905, Pub. L. 90–448, title IV, §406, Aug. 1, 1968, 82 Stat. 515, related to fees and charges for guarantees and the submission of a report to Congress concerning such fees and charges.
Section 3906, Pub. L. 90–448, title IV, §407, Aug. 1, 1968, 82 Stat. 515; Pub. L. 91–351, title VII, §703, July 24, 1970, 84 Stat. 462; Pub. L. 91–609, title III, §303(a), Dec. 31, 1970, 84 Stat. 1780, provided for a revolving guarantee fund. Section 4528 of this title transferred all receipts, funds, or other assets and all liabilities of the revolving fund established under this section to the revolving fund established under section 4518 of this title.
Pub. L. 90–448, title IV, §401, Aug. 1, 1968, 82 Stat. 513, which provided that this title, which enacted this chapter and amended section 1492 of this title and sections 371 and 1464 of Title 12, Banks and Banking, may be referred to as the "New Communities Act of 1968", was repealed by Pub. L. 98–181, title I [title IV, §474(e)], Nov. 30, 1983, 97 Stat. 1239.
Pub. L. 98–181, title I [title IV, §474(e)], Nov. 30, 1983, 97 Stat. 1239, provided that: "Any actions taken, prior to repeal, under the authority of any of the sections which are repealed by this section [repealing sections 3901 to 3906, 3908, 3909, 3911, 3914, 4511 to 4524, and 4528 to 4532 of this title] shall continue to be valid. Nothing in this subsection shall impair the validity of any guarantees which have been made pursuant to title IV [of the Housing and Urban Development Act of 1968, 42 U.S.C. 3901 et seq.] or title VII [of the Housing and Urban Development Act of 1970, 42 U.S.C. 4501 et seq.] and any such guarantees shall continue to be governed by the provisions of title IV or title VII, as applicable, as they existed immediately before the date of the enactment of this Act [Nov. 30, 1983]."
Short Titles "New Communities Act of 1968", was repealed by Pub. L. 98-181, title I [title IV, §474(e)], Nov. 30, 1983, 97 Stat. 1239.


Republished from FAA Safety Briefing; author James Williams is FAA Safety Briefing’s associate editor and photo editor. He is also a pilot and ground instructor.
Once you get a new pilot certificate, the next step is to spread your wings and explore the grand new world you’re now a part of. While being out of the initial training environment allows you to have some great new freedoms, it also means some new responsibilities. One of those new responsibilities is managing your logbook. In this article, we will focus on answering common questions about logging Pilot in Command (PIC) time, an area that can be confusing for some new pilots to master. Let’s start by defining PIC.
In both a practical and legal sense, only one pilot may act as PIC for any given flight. However, there are situations where a pilot can log PIC time while not acting as pilot in command. “One of the biggest issues when considering PIC time is that in order to understand it, you have to look across multiple regulations in 14 CFR parts 1, 61, and 91,” explains Allan Kash, an Aviation Safety Inspector (ASI) with the Flight Standards General Aviation and Commercial Division. To understand when you can log PIC time, you also need to understand how and why the FAA requires pilots to log flight time. For FAA purposes, a pilot is required to log certain flight time primarily to qualify for or maintain an airman certificate or rating.
Note: There are other conditions under which a pilot can log PIC in §61.51 (e)(1)(iv). These regulations don’t quite appear to match up: the rule for logging PIC time has fewer restrictions than the rule to act as PIC. So there are circumstances where you can log PIC while not acting as PIC, but you can also be acting as PIC and not be able to log PIC. Stay with me — the details and examples below will help.
Let’s look at § 61.51(e)(1)(ii) first, since that’s probably the simplest to define and contains what you may be most familiar with from your initial training as a solo student pilot. Under § 61.51(e) (1)(ii), you may log PIC flight time when you’re the only person on board the aircraft. In the most basic sense, all solo time is PIC, but not all PIC time is solo. For such a flight, you would also have to meet the requirements of § 61.3 (including holding a medical certificate), § 61.56 (flight review requirements), and § 61.31 (appropriate ratings and any endorsements required by the aircraft, such as high performance or complex).
Once you’ve been certificated as a pilot, if you take a non-pilot friend along on your solo cross country trip, you’re no longer the sole occupant. Accordingly, you may not log PIC under § 61.51(e) (1)(ii), but you may log PIC under § 61.51(e)(1)(i) as the sole manipulator of the controls of an aircraft for which you are rated. You would still have to meet the requirements in § 61.3, 61.31, and 61.56 just as you did for a solo flight. To further complicate matters, if you take a fellow pilot along on your cross-country trip, so long as you are the sole manipulator of the controls, you may log PIC under § 61.51(e) 1)(i) regardless of who is acting as PIC. However, the fellow pilot may not simultaneously log PIC time for the portion of the flight that you are logging PIC time as the sole manipulator of the controls, even if the fellow pilot is acting as PIC, unless the requirements of § 61.51(e)(1)(iii) are met, namely more than one pilot is required under the type certification of the aircraft or the regulations under which the flight is conducted.
The next quirk is that the Pilot Flying (PF) may not always be the PIC. The PF and PIC are definitely not synonymous. The clearest example is in an airline cockpit where crews will generally swap legs. The captain and first officer will switch between the PF and Pilot Monitoring (PM) roles. Regardless of who is actually flying the airplane, the captain is always the PIC. This situation could also occur in GA. Therefore, the question here is: When may a GA pilot log PIC under § 61.51(e), when not acting as PIC? One example is when a certificated flight instructor (CFI) is providing flight instruction to a student who holds at least a private pilot certificate and who is qualified to act as PIC. A CFI providing instruction to a person who is qualified to act as PIC need not be the acting PIC, yet still may legally log PIC under § 61.51(e)(3), regardless of who is manipulating the controls.
Let’s examine another common example in the GA world. Let’s say and a pilot friend are going for a $100 hamburger. Your friend suggests taking her Piper Saratoga (a complex high performance airplane). You both have private pilot certificates with an airplane single engine land (ASEL) rating. Your friend has both high performance and complex endorsements, but you do not. You do, however, have a lot of experience with similar airplanes and even some time in a Saratoga. For the purposes of this example, you both have current medicals and flight reviews. Your friend asks if you want to fly one of the legs. Are you legally allowed to fly? Are you able to act as PIC? Are you able to log as PIC?
The answers are yes, no, and yes. You may be the PF, but you may not act as PIC because you do not hold the complex and high performance endorsements required by § 61.31(e) and (f ). In this circumstance, your friend is acting as PIC while you fly. You may, however, log PIC time under § 61.51(e) (1)(i) as the sole manipulator of the controls because § 61.51(e)(1)(i) requires only that you are rated for the aircraft. In this situation, you would be flying and logging as PIC while your friend is acting as PIC but not able to log PIC per § 61.51(e)(1)(iii). This is 16 FAA Safety Briefing November/December 2016 further explained by a legal interpretation in 2009 (Speranza) http://go.usa.gov/xk4TM.
“When the pilot, except for a holder of a sport or recreational pilot certificate, acts as pilot in command of an aircraft for which more than one pilot is required under the type certification of the aircraft or the regulations under which the flight is conducted”.
GA pilots often overlook this point because for the most part, our aircraft don’t require more than one pilot. However, in the case of simulated instrument flight, the regulations do require more than one pilot. Per 14 CFR § 91.109(c)(1), a safety pilot is required to operate in simulated conditions. This makes the safety pilot a required pilot flight crewmember under the regulations for the simulated instrument portion of the flight. The safety pilot is required to hold at least a private pilot certificate, be rated for the category and class of airplane to be flown, and hold a current medical as required by § 61.3(c). If the safety pilot is acting as PIC for the simulated instrument portion of the flight, the safety pilot may log that time as PIC time under § 61.51(e)(1)(iii) because he is acting as PIC of an aircraft for which more than one pilot is required under the regulations. The PF may also log the time as PIC time under § 61.51(e)(1)(i) as the sole manipulator of the controls of an aircraft for which the pilot is rated. Additionally, the pilot flying under simulated instruments log simulated instrument time.
However, if the PF is acting as PIC and is the sole manipulator of the controls during the simulated instrument portion of the flight, then the safety pilot may log that time as second in command (SIC) time because he or she holds the appropriate category and class ratings for the aircraft being flown and more than one pilot is required under the regulations under which the flight is being conducted in accordance with § 61.51(f)(2). This is further explained by a legal interpretation in 2012 (Trussell) http://go.usa.gov/xk4bB.
Let’s look at an example. You want to do some practice approaches to get ready for a big trip coming up next month, but your medical has lapsed and your appointment at the aviation medical examiner (AME) isn’t until next week. Your friend volunteers to be your safety pilot. Both of you are instrument-rated private pilots with all appropriate endorsements for the airplane. Your friend has a current medical. Can you fly? Can you act as PIC? Can you log PIC? Can you log simulated instrument time?
The answers are: Yes, no, yes, and yes. For the purposes of this flight, your friend meets the requirements for a safety pilot and the operation requires more than one pilot by regulation. You may not act as PIC because you do not have a current medical. Therefore, your friend would be acting as PIC and may log PIC under § 61.51(e)(1)(iii), but you could also log PIC time as sole manipulator of the controls when operating by sole reference to instruments and using a view-limiting device under § 61.51(e)(1)(i).
Let’s look at another example. You own a Cessna 182RG and need to do some practice approaches. Your friend volunteers to be your safety pilot. You both have private pilot certificates with ASEL ratings, with current medicals and flight reviews. You have a complex endorsement, but your friend does not. Can you fly under simulated instruments? Can you log PIC? What does your friend log?
The answers are: Yes, yes, and your friend may log SIC. You may operate the aircraft in simulated instrument flight because your friend meets the requirements to serve as a safety pilot. Your friend has a current medical, which is required by § 61.3(c), and § 91.109(c) requires only category and class ratings appropriate to the aircraft being flown. In this case, you would be the only one eligible to act as PIC since your friend doesn’t hold a complex endorsement, which is required by § 61.31(e) to act as PIC. You may therefore log PIC under § 61.51(e)(1) (i) as the sole manipulator of the controls or under § 61.51(e)(1)(iii) because you are acting as PIC of an aircraft for which more than one pilot is required under the regulations under which the flight is conducted. Your friend may log SIC under § 61.51(f)(2) because he or she holds the appropriate category and class ratings for the aircraft being flown and more than one pilot is required under the regulations under which the flight is being conducted.
As we hinted at earlier, another common question is whether it is acceptable to log PIC and dual received at the same time. The answer is, under the right circumstances, yes. You may simultaneously log PIC and dual received if you are rated in the aircraft (category and class), are the sole manipulator of the controls, and are receiving flight instruction.
That means that once you earn your private pilot certificate (ASEL), you can log PIC during training in a single-engine land aircraft. You can log any commercial or instrument training, even in a complex airplane, as PIC for that time that you are the sole manipulator of the controls under § 61.51(e)(1)(i). This would also apply to training toward an endorsement like tailwheel, complex, or high performance. However, it would not apply to training toward a rotorcraft, glider, balloon, or airship since those are different categories. It would also not apply toward any training in a multiengine or seaplane, because those are different classes.
Have a question about a specific circumstance? Let us know.
great article. I had a lot of discussion concerning this topic while taking my cfi this summer.
I though have a question you might be able to answere.
I am not a lawyer but I think that pretty clearly comes under “not loggable” since you are not sole manipulator nor required crew (sorry, I bet you are one of many wishing it was otherwise!). You would have to be rated in the jet to act as a safety pilot (or CFI) and log any of this time.
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