The Southern District of Florida recently granted a motion to dismiss in favor of Minted LLC, and a motion for judgment on the pleadings in favor of ShoppersChoice.com LLC based on lack of patent-eligible subject matter, under 35 U.S.C. § 101 and the Alice/Mayo test. At issue wasclaim 11 of U.S. Patent No. 9,373,261, directed to a system for automating notification of delivery or pickup of a good or service. Electronic Communication Technologies, LLC v. Minted, LLC, No. 16-81669-CIV (S.D. Fla. Jan. 18, 2019); Electronic Communication Technologies, LLC v. ShoppersChoice.com, LLC, No. 16-81677-CIV (S.D. Fla. Jan. 18, 2019). Claim 11 of the ‘261 patent was ineligible because the claim was directed toward the abstract idea of “providing advance notification of the pickup or delivery of a mobile thing,” and the claim recites “purely generic and conventional computer equipment” that operates in a “routine and conventional” manner.
code that, during the notification communication session, enables the first party to select whether or not to engage in a communication session with a second party having access to particulars of the pickup or delivery.
The court applied the two-step Alice framework to Minted’s 12(b)(6) motion to dismiss and to ShoppersChoice.com’s motion for judgment on the pleadings. Citing Mobile Telecommunications Techs., LLC v. United Parcel Serv., Inc., 173 F. Supp.
Moreover, under Alice step two, Claim 11 “recites generic computer components that can be configured to perform purely conventional computer functions.” The court found that Claim 11 of the ‘261 patent “does not contain any limitation that requires components of the system to operate in an unconventional manner.” Instead, the “specification makes clear that the components and processes are well-known and that the components are not arranged in any specific or limiting way.” Citing Mobile Telecommunications Techs, the court determined that “[a] patent directed to the abstract idea of providing delivery notification that can be implemented with general computer components does not contain an ‘inventive concept.’” Therefore, the court found claim 11 failed the Alice framework and was drawn toward ineligible subject matter.
As set forth in Secure Cam, LLC v. Tend Insights, Inc., generic structure is not enough to establish patent-eligibility. This case illustrates that additional features that “add a degree of particularity” will not be sufficient to overcome the pitfalls of generic components operating in a conventional manner to perform an abstract idea. To be patent eligible, software claims need to be directed toward functional improvements to the computer and include specific structure that provides the functional improvement. In other words, to satisfy the requirements of § 101, software claims should include specific structure that causes the computer to operate in an unconventional way.


Investments in Austria’s real estate are very attractive alternative for investors today. Having a lot of advantages, owing apartments in Austria also has some specifics, especially from a legal point of view. Investor shall know about those specifics in advance, in order to prevent losses and legal proceedings.
Investments in Austria’s real estate are very attractive alternative for investors today. Having a lot of advantages, owing apartments in Austria also has some specifics, especially from a legal point of view. Investor shall know about those specifics in advance, in order to prevent losses and legal proceedings. Such legal aspects will be considered in this article.
When representatives of Benesteem company meet in Austria or Switzerland with clients or potential investors, who are new to real-estate investments in Central Europe, they often relive the same scene. The plan includes visiting selected investment objects, such as office space in the business districts of Zurich or Geneva, a residential property in one of noble spa resorts or luxury holiday apartments in a famous alpine ski region. And when investor is told that this building is 130 years old, that office complex was designed by a famous Swiss architect in the 1920ties or that chalet was built by a German industrialist 50 years ago, the response is only disbelieve and shaking the head. "The building is in perfect condition, it must be new, it's only designed to look old-style" is the standard comment what usually heard.
The fact is that good structural quality, permanent maintenance and improvements of the building, and powerful laws on real-estate property lay the foundation for the long-term quality of real-estate investments in Central Europe. Austria, with a political, geographic and economic situation similar to Switzerland, but a more relaxed price level (at least for now...), offers especially interesting opportunities for securing your wealth through real-estate investments.
The ownership of an apartment, no matter whether for residential purposes or for holiday lease, is governed by strict federal laws in Austria since long time. These laws regulate almost every aspect of ownership rights and duties, and they are binding for each and every owner in an apartment building.
It shall be noted that the laws on apartment ownership are quite similar in Austria, Germany and Switzerland and based on the same set of legal principles. However, the situation in the Anglo-Saxon jurisdiction (Great Britain, USA, Australia) is in important aspects totally different from that in Central Europe. Generally speaking, Austria has much more stronger rules on property management and maintenance of the building structure, and gives owners a much stronger position in their land ownership rights than in the Anglo-Saxon countries.
The ownership of an apartment is called "Wohnungseigentum" (= residential ownership) in Austria and Germany. This term applies always, no matter whether the apartment is used for ownership occupancy only, permanent residential lease or part-time touristic lease.
The legal foundation about flat property is set in a federal law called "Wohnungseigentumsgesetz" (= law on residential ownership), short WEG. This law exists in Austria since long time; its current version dates from 2002. It is binding for all owners of flat property, and also sets the rules for the management of the apartment buildings. If you buy a flat property in Austria, you as an owner are subject to this law automatically, without the need for any special clause in the purchase contract.
A flat property under Austrian law consists of a combination of several ownership objects, which are connected to each other, and are registered together in the land register folio ("Grundbuchblatt").
1. The apartment itself (defined in WEG §2.2, which must be a complete and self-contained part of the building, large enough and generally suitable for residential purposes under Austrian standards of living. That means that a single room within a large flat cannot be an apartment in the sense of WEG. It must have at least a bathroom, some area for cooking and a lockable master entry door, which separates the whole apartment from others in the same building. It doesn't matter whether the apartment is actually used as a permanent residence or for touristic leasing (holiday homes), it is only important that it could be used for living, given its size and characteristics.
It is also possible to treat an office space inside a commercial building or a shop under the rules of the WEG, as long as it is self-contained and large enough to be used as an independent economic unit.
2. Additional parts of the building or pieces of the estate, which are not physically connected to the apartment, but are for the exclusive use of the apartment owner. This can be a cellar, a parking lot in the underground garage or a garden on the building's estate. These objects are called "Zubehör-Wohnungseigentum" (residential ownership accessories, defined in WEG §2.3).
3. A co-ownership ("Miteigentum", WEG §2.5) of the building, inside which the apartment itself resides, and also infrastructure installations, which are designated for common use (central heating system, lift and so on). By this co-ownership, not only rights of usage are established, but also duties originate for the apartment owner. Most prominently this is the duty to pay regularly for the maintenance and repair of the building structure and its infrastructure.
The concept of building co-ownership and the collective duty for structural maintenance, which stems from this point, is an important cornerstone of apartment ownership laws in Central Europe, an differs considerably from laws and practices found in Anglo-Saxon countries. In those jurisdictions, the building structure and the land it's build on (the so-called freehold or enfranchisement), can be owned by a third party, namely a construction company or a local landlord, and the flat owner has only the right to use the apartment itself. The Anglo-Saxon scheme allows a lower initial purchase price for the apartment buyer in the first place, but can lead to a rapid depreciation of the flat property and to a lot of practical problems, if the building is not maintained properly.
4. A co-ownership of the plot of land, on which the apartment building is build. This element of Austrian flat property law (WEG §2.5), which exists also in the corresponding laws of Germany and Switzerland, cannot be underestimated. Land, unlike a building, cannot deteriorate (unless we consider catastrophes of landscape-changing dimensions such as the explosion of a nuclear power-plant), requires no maintenance and is not subject to technical depreciation. For investment purposes, the portion of land which is connected to a flat property, is an important factor to consider. It is this element which provides a major share of capital protection, and banks carefully evaluate the land ownership factor ("Miteigentumsanteil"), when they calculate the intrinsic value of a flat property.
Let's look at an example from one of real-estate projects: We have 2 holiday apartments of the same size (each about 100 m²), offered to us at approximately the same total cost of investment. One is located in a 3-party chalet-type house, sitting on 869 m² of land. The ownership factor, which is in Austria expressed as a fractional number and recorded in the official land register for every flat property, is 111/255. The other one is located in a large apartment building with 24 flats, build on 3374 m² of land, and has an ownership factor of 212/4744. The price per square meter is approximately the same for both locations. Simple mathematics show that the land portion of the flat property is in case of the chalet-type house 378,3 m², and in case of the large apartment building only 150,8 m². So, the intrinsic land value of the smaller property, sitting on a much smaller plot of land, is 2,5 times higher than that of the larger property, because of the effects of the ownership factor.
Every flat property in Austria consists always of the ownership objects No. 1, 3 and 4, and if there are any accessories, then also of objects of type No. 2. They are intrinsically tied to each other. That means if you buy a flat property, you will also get co-ownership of the building structure and the plot of land, with all rights and duties connected to it. It is not possible to separate one of the objects from the others, let’s say the land from the apartment. However, if you own accessory objects, like a cellar or a piece of garden, and you don't need it any more, there are several possibilities to sell them to other owners or lease a rights of use to a third party.
All owners of a flat property within a building constitute an owners association ("Eigentümergemeinschaft") by law (WEG §2.5, §18). This owners association is a legal entity of its own. You can think about this like a little firm, with the lucky exception that it must not pay taxes. The owners association as a legal entity is the owner (in legal terms) of the building structure, its infrastructure installations and the land, on which the building resides. However, it cannot sell any of these assets, it can only use, manage and maintain them.
If you buy a flat property, you automatically become a member of the owners association by law. You can compare this like becoming a shareholder of a company; the number of "shares" is calculated according to the ownership factor of your flat.
The main duty of the owners association is to accumulate the maintenance repair fund ("Instandsetzungsrücklage" or short "Rücklage") and to decide on necessary repairs of the building itself and its infrastructure, or on future improvements or upgrades of the estate (building a swimming pool, improving energy efficiency etc.).
The maintenance repair fund (WEG §31) is the main financial asset of the owners association, and its money is designated to pay for future repair and maintenance costs of the estate. It is not intended to pay regular operating costs like garbage collection, building insurance, communal taxes and so on. The concept of this fund is to ensure a continuous, professional maintenance of the building, and that repairs, even unforeseen ones, can be done in time and without extraordinary financial burdens to the individual owners.
Owners are obliged to make regular, monthly payments into the maintenance repair fund according to the ownership factor of their flat. How much money is accumulated each year in the fund can be set by a decision of the owners association. However, WEG §18.1 dictates that this amount must be appropriate ("angemessene Rücklage"), that means it cannot be too high or too low. What is appropriate is routinely decided on the base of the so-called Peters' Formula, which was developed by the German architect Peters many decades ago. Investment company Benesteem also uses this formula when calculates the rentability of a certain real-estate investment project.
The money of this fund must be held in a so-called segregated account, that means on a special bank account opened exclusively for the owners association. If an owner sells his apartment, he cannot request a refund of his share from the maintenance repair fund. His share of the fund is linked to the property itself and will be transferred with the ownership of the flat to the new buyer. But this also means that the new owner will be held liable for any arrears of the old owner against the owners association. So, should the previous owner be overdue with payments to the fund, the new buyer is responsible for the payment of the arrears. As payments to the maintenance repair fund can be quite substantial, given the high structural value of buildings in Austria and Central Europe, a potential buyer must carefully check the amount of the fund and any possible arrears of the previous owner, before signing the purchase contract.
The institution of the owners association with its ownership rights to the building structure and the land, and the powerful instrument of the maintenance repair fund are the proven success factors for long-term investment in flat property in Central Europe. This is in stark contrast to the situation in the Anglo-Saxon jurisdictions, where often the flat property consists only of a right of usage ("leasehold flat"), while the building and its land ("freehold") is owned by some other company. That scheme not only is a permanent source of conflict, but also can result in poorly maintained properties, as the land owner has limited incentive to put his money into repairing or even improving the building structure. Only some years ago, Great Britain introduced a new legislation ("commonhold flat"), which tries to copy some of the well-proven elements of German and Austrian/Swiss laws on flat property. However, this law is voluntary, and the developer of a real-estate apartment project is free to decide whether he will use the traditional leasehold/freehold model or the new commonhold scheme.
The decisions of the owners association are made by votes in the owners assembly ("Eigentümerversammlung", WEG §24). In this assembly, each owner has voting rights according to the ownership factor of his flat. You can compare this to the shareholders assembly of a corporation.
The owners assembly must be held at least every 2 years (WEG §25.1), however a qualified minority of owners (at least 25%) can demand that an extraordinary assembly will be held at any time. In practice, it is common to hold an assembly once a year. An owner can give a power of attorney to a trusted third person, if he doesn't want to attend personally. If you own an apartment in an Austrian ski resort, you can authorize a lawyer, your asset manager or any other trustworthy person to represent your interests and vote on your behalf in the assembly.
The WEG distinguishes between simple majority, two-thirds majority and unanimity, depending on the importance of the decision.
It should be noticed that if a case requires unanimity, e.g. for giving somebody special usage rights on some parts of the property or some substantial modification of the building, and not all owners were present or represented at the assembly, the manager of the property (see next chapter) must ask the missing owners for written acceptance of the decision. Unanimity in the sense of the WEG means unanimity among all owners of the estate, not only among those owners present in the assembly. This is one of the many elements of the WEG to protect the rights of minority owners.
The proceedings of the assembly and the decisions made must be recorded in a written protocol (WEG §25.3), which must be sent to all owners by postal or electronic mail (WEG §24.5). Before buying a flat property, you should read and examine these protocols carefully, as they can contain clauses and decisions, which might be binding for you in the everyday use of your new apartment. These protocols also can give valuable insights into planned future repairs or improvements of the building, possible conflicts among individual owners and the general situation in the owners association. Of course, these protocols, like all documents connected to your flat property, are in German language only in Austria. Benesteem company usually analyses the protocols for at least the last six years, when it consults clients on real-estate investment in flat properties in Central Europe.
Usage agreements ("Benützungsregelung", WEG §17; "Gemeinschaftsordnung", WEG §26) and house rules ("Hausordnung") are written agreements of the owners association. They set binding rules on how to use the common property of the estate and can set limits in the way you use your own flat. Usage agreements and house rules are optional. However, if they exist, investor must carefully check for such agreements, before deciding to buy.
Usage agreements must be passed by a unanimous decision of all apartment owners. They can govern long-term matters of usage, such as permanent usage rights for certain parts of the garden, usage of the underground parking and similar topics. They can also set rules and limitations on the way you use your flat property. For instance, in a purely residential estate it can be banned to establish a cafe or a shop in one of the flats, if all owners agree on this. Usage agreements have a binding effect like a law. In most cases, they are recorded in the land register folio of the estate (WEG §17.3), but this is not absolutely mandatory.
House rules regulate day-to-day affairs of the community, e.g. whether and when it is allowed to use a barbecue on the balcony, whether pets can run in the gardens, the schedule for cleaning the staircase (if this not done by a housekeeping agency) and so on. House rules can be set and changed by simple majority of the owners assembly, and they must be obeyed by each owner and his tenants.
Aspects of owing apartments in Austria are integral part of investing into real estate in this country. This is why they shall be carefully analyzed before making investment decision. Besides aspects described above there are also a whole range of measures aimed to protect rights of minority owners, administrator functions and obligations on repair and maintenance of building with flats, which are important moments of Austrian law in regards to apartment ownership. These aspects will be reviewed in details in our next article.
If you want to get more information on this issue you can click “Ask the experts” button below.


Disgorgement for WRONGDOING - В сложной финансовой ситуации приходит на помощь кредит наличными в Казахстане.
What is disgorgement and what are the proper measure of damages when seeking disgorgement? If you have ever asked yourself these questions, the case of Bailey v. St. Louis, 44 Fla.L.Weekly D128a (Fla. 2d DCA 2019), answers both in a bitter dispute with two appeals dealing with awarded damages associated with claims for breach of fiduciary duty, defamation, conspiracy, slander per se, tortious interference, and violation of Florida’s Deceptive and Unfair Trade Practices Act. You name it, this case seemed to include it! Applicable here, however, is the damages associated with disgorgement which is designed to prevent a wrongdoer from profiting from his/her/its own wrongdoing or illicit conduct.
Restitution requires full disgorgement of profit by a conscious wrongdoer, not just because of the moral judgment implicit in the rule of this section, but because any lesser liability would provide an inadequate incentive to lawful behavior. If A anticipates (accurately) that unauthorized interference with B’s entitlement may yield profits exceeding any damages B could prove, A has a dangerous incentive to take without asking — since the nonconsensual transaction promises to be more profitable than the forgone negotiation with B. The objective of that part of the law of restitution summarized by the rule of § 3 is to frustrate any such calculation.
Id. § 3 cmt. c; see also § 51 cmt. e (“The object of the disgorgement remedy — to eliminate the possibility of profit from conscious wrongdoing — is one of the cornerstones of the law of restitution and unjust enrichment.”).
However, the measure of damages for disgorgement is not the profits the appellants might have made absent the wrongdoing — the measure of damages for conscious wrongdoing is the appellees’ “net profit attributable to the underlying wrong.” Restatement (Third) of Restitution and Unjust Enrichment § 51(4); see also Duty Free, 253 So. 3d at 698 (“The equitable remedy of disgorgement is measured by the defendant’s ill-gotten profits or gains rather than the plaintiff’s losses.”). “When the defendant has acted in conscious disregard of the claimant’s rights, the whole of the resulting gain is treated as unjust enrichment, even though the defendant’s gain may exceed” the claimant’s loss.” Restatement (Third) of Restitution and Unjust Enrichment § 3 cmt. c. In fact, disgorgement may be awarded even if the claimant has not sustained any loss. Restatement (Third) of Restitution and Unjust Enrichment § 3, reporter’s note a. (“[I]t is clear not only that there can be restitution of wrongful gain exceeding the plaintiff’s loss, but that there can be restitution of wrongful gain in cases where the plaintiff has suffered an interference with protected interests but no measurable loss whatsoever.”).The trial court’s comments regarding the appellant’s business acumen are misplaced in determining a disgorgement award.


The Bank originates a mortgage loan and sells it but retains servicing. Is this considered a service transfer under Regulation X?
If the Bank sells loans to investors after origination, with the servicing to be done by the purchasing entity, would this be considered a transfer under Regulation X?
Under Regulation X, if the Bank sells a mortgage loan it originates but retains servicing, this is not considered to be a service transfer. If the Bank sells a mortgage loan to an investor, however, and the servicing will be handled by the purchaser, this will be a mortgage servicing transfer for the purposes of the regulation. In either case, the transfer of title will require the purchaser to notify the consumer of the transfer.
Under Regulation X, which implements the Real Estate Settlement Procedures Act (“RESPA”), “servicing” means receiving any scheduled periodic payments from a borrower pursuant to the terms of any federally related mortgage loan. This includes amounts for escrow accounts, and making the payments to the owner of the loan or other third parties of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the mortgage servicing loan documents or servicing contract. In the case of a home equity conversion mortgage or reverse mortgage as referenced in this section, servicing includes making payments to the borrower. 12 CFR §1024.2.
Regulation X requires a lender to provide an applicant with a servicing disclosure statement within three business days of an applicant and a notice of transfer of loan servicing at least 15 days prior to the effective date of the transfer. 12 CFR §1024.33(a),(b)(3).
With respect to the first question, if the Bank sells the loan but retains the servicing (i.e., if the borrower is required to continue making scheduled periodic payments to the Bank, including escrow payments), no transfer of servicing has taken place and no notice of transfer of loan servicing needs to be given.
The requirement of Regulation X for the lender to provide a servicing disclosure statement only pertains to reverse mortgages. 12 CFR §1024.33(a). For loans subject to the TILA-RESPA Integrated Disclosure rules, the intent of the lender to service the loan must be disclosed in the Loan Estimate, which is provided within three business days of receiving the application. 12 CFR §1026.37(m)(6).
As to the second question, if the Bank sells the loan and the servicing will be done by the purchaser (i.e., if the borrower is required to make scheduled periodic payments to the purchaser, including escrow payments) then a transfer of servicing has taken place and a notice of transfer of loan servicing must be given.
These questions are concerned with the applicability of the mortgage servicing transfer requirements of Regulation X. Regulation Z also has requirements regarding transfers of ownership, but these must be fulfilled by the purchaser of the mortgage.
Under Regulation Z, when closed-end consumer credit secured by a dwelling or real property or open-end consumer credit secured by the principal dwelling of a consumer is sold or assigned, the person who obtains legal title to the debt obligation must mail or deliver the required disclosures concerning the transfer before the 30th calendar day following the date of transfer. 12 CFR §1026.39(a),(b).
In the situations posed by both questions, the purchase or assignment of legal title to the obligation will require the purchaser to notify the consumer, whether or not the servicing of the loan is being done by the purchaser.
The son of a director of the Bank has requested a loan from the Bank which will be secured by his residence, and which will be used to pay off the loan from the director. The residence had been purchased by the son with the loan from the director. What are the Regulation O implications?
The loan from the Bank to the son of the director is subject to an exception from the tangible economic benefit rule, provided that the loan from the director to the son bore a reasonable relationship to the value of the property purchased.
An “insider” for Regulation O purposes is an executive officer, director, or principal shareholder of a financial institution or any related interest of such a person. A “related interest” is a company or political campaign controlled by that person. 12 CFR §215.2(h), (n).
Limitations on the total amount of credit extended to the insider, as per 12 U.S.C. 84. (i.e., 15 percent of a bank's unimpaired capital and surplus. A bank may lend an additional 10 percent of its unimpaired capital and surplus if the loan is secured by “readily marketable collateral” [e.g., listed securities and gold bullion]. Loans secured by deposits with the bank or by obligations of the United States may be made in an unlimited amount). 12 CFR §215.4(a)(1), (b), (d).
The director would be an insider of the Bank, but the son of the director would not be considered a related interest of the director, as he is not a company or political campaign controlled by the director.
In this case, the director would ordinarily be considered the recipient of the loan under the tangible economic benefit rule, if the son transferred the proceeds of the loan to him. There is an exception to the rule, however, by which an extension of credit is not considered made to an insider if the proceeds of the extension of credit are used in a bona fide transaction to acquire property, goods, or services. 12 CFR 215.3(f)(2).
It is our opinion that the exception to the tangible economic benefit rule should apply in this case regardless of the manner in which the son retired the original loan from the director. The exception requires that an extension of credit be used in a bona fide transaction to acquire property, goods, or services in order to prevent transactions from qualifying for the exception when the borrower from the bank serves merely as a nominee for the insider. This would occur if the borrower from the bank transferred the proceeds of the bank loan to the insider without adequate consideration. In this case, in the absence of any evidence that the amount of the original loan from the director (which the loan from the bank was used to repay) was inflated beyond the actual and reasonable construction costs for the son's house, the Board's concern that the exception to the tangible economic benefit rule not be used to shield nominee loans would be satisfied.
The Federal Reserve Board further noted that the transaction would be identical, in terms of the economic relationships established among the parties and the credit risk assumed, if the director had sold the son's note to the bank without recourse. The sale or discount of a promissory note to a bank, without recourse to the transferor of the note, is treated under Section 215.3(b)(7) of Regulation O as the purchase of an asset by the bank and not as an extension of credit to the transferor. Federal Reserve Board, Legal Interpretations, December 10, 1998.
When applying this ruling in this instance, the Bank should determine whether the loan from the director to his son bore a reasonable relationship to the value of the property acquired by the son. If it does, then the loan to the son by the Bank, the proceeds of which would be used to pay off the loan to the director, would be analogous to a loan for the purchase of the residence. The Bank should document this fact in its minutes, along with the terms and conditions of the loan.
Given that the determination of whether this exception to the tangible economic benefit rule is applicable rests on a question of fact, we believe that the better practice would be to treat the presentation of the loan as one which is potentially to the benefit of the director. As such, the director should excuse himself from the meeting and take no part in the discussion or decision by the Board. The minutes of the Board meeting should also reflect this.
A commercial loan for $4.9 million is to be made for the purchase of 100 condominium units. Does this trigger the Regulation B requirement to provide a notice of the right to receive an appraisal on all 100 units?
The creditor does not have to notify the applicant of the applicant’s right to receive copies of the appraisals, since the condominium is not a dwelling for the purposes of the regulatory requirement.
Under Regulation B, a “creditor shall provide an applicant a copy of all appraisals and other written valuations developed in connection with an application for credit that is to be secured by a first lien on a dwelling.” 12 CFR §1002.14(a)(1). The term “dwelling” means a residential structure that contains one-to-four units, whether or not the structure is attached to real property. It includes, but is not limited to, an individual cooperative or condominium unit. 12 CFR §1002.14(b)(2).
With respect to the example raised by a creditor and two national creditor associations—three four-unit buildings operated as a 12-unit apartment complex, the text of the rule makes clear that a four-unit residential building would be a dwelling, but a 12-unit apartment complex is not. Thus a transaction secured by a four-unit residential building would be covered by the rule, but a transaction secured by the entire 12-unit apartment complex would not be. Because this question can be analyzed in a straightforward manner by reference to the text of the rule, the Bureau does not believe that further commentary is needed for this to be apparent. Similarly, the definition of 'dwelling' refers to the example of an 'individual condominium or cooperative unit,' but not to a cooperative building as a whole, even though such a building may contain several individual units. 78 Federal Register 7215 (January 18, 2014), 7236, footnote 79.
As such, an apartment building with four units would be covered by the appraisal rule, but one with more than four units would not. A condominium building with multiple units would be analogous to an apartment building.
No. Pursuant to Section 1002.14(b)(2), the ECOA Appraisal rule applies to any credit facility involving a dwelling, which means a residential structure that contains one to four units, whether or not that structure is attached to real property. This language is crafted in the singular and is intended to exclude applications involving multifamily dwellings or inventories of homes. If more than one dwelling secures a credit facility, the credit facility is exempt from the rule.
In this case, a condominium with 100 units would not be “a dwelling” for the purposes of the regulatory requirement, since it is secured by more than four residential units. Thus, the requirement to provide a copy of the appraisal or to notify the applicant of the applicant’s right to such an appraisal would not apply.


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Postscript to the U.S. Supreme Court’s October 2014 Term. The Supreme Court of the United States completed its October 2014 term in June, having decided a number of matters of wide public interest. Among the most notable was King v. Burwell (No. 14-114), which upheld, over a vigorous dissent, an agency rule that, if vacated, would have had significant consequences for the Patient Protection and Affordable Care Act, also known as ObamaCare. And in Texas Department of Housing & Community Affairs v. Inclusive Communities Project (No. 13-1371), the Court held in a 5-4 decision that disparate-impact claims are cognizable under the Fair Housing Act, consistent with earlier rulings affirming such liability under other anti-discrimination statutes.
Several decisions receiving less widespread public attention will have significant implications for business litigation. A major patent case, Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. (No. 13-854), overturned the Federal Circuit’s long-standing practice of reviewing all aspects of a district court’s patent claim construction de novo. The district court upheld Teva’s patent covering a manufacturing method for a drug, concluding that the patent term “molecular weight” was not indefinite, relying on expert testimony that those skilled in the art would understand its meaning. The Federal Circuit reversed on de novo review, and the Supreme Court then vacated that reversal for failing to grant appropriate deference. The Court explained that while the ultimate construction of a patent claim is a legal question subject to de novo review under Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), a district court’s subsidiary factual findings, made after considering extrinsic evidence, can only be reviewed for clear error under Federal Rule of Civil Procedure 52(a)(6). That Rule provides that a district court’s “[f]indings of fact” cannot be “set aside” unless they are “clearly erroneous.” The Court reasoned that district courts are better positioned to make findings of fact, particularly in complex patent cases, and there is no basis for deviating from Rule 52(a)(6)’s “clear command.” Justice Thomas, joined by Justice Alito, dissented. Claim construction often turns on extrinsic evidence and this change in practice is thus likely to have significant consequences and, in particular, render district court Markman proceedings even more important than before.
To the surprise of many, the Supreme Court reached the merits of Dart Cherokee Basin Operating Co. LLC v. Owens (No. 13-719), handing down a victory for class-action defendants sued in state court who seek removal to federal court under the Class Action Fairness Act, which permits removal even absent complete diversity when the amount in controversy exceeds $5 million. Questioning at oral argument suggested the Court likely would dismiss the case as improvidently granted: the Tenth Circuit’s basis for refusing to entertain an appeal of the district court’s order remanding the case to state court was unclear, and that refusal was the only ruling under further review. Four Justices ultimately advocated for such dismissal, but in dissent—the majority interpreted the Tenth Circuit’s refusal as approving the district court’s reasoning, and thus reached that reasoning. And the Court swiftly rejected it. The district court had remanded the removed case back to state court because Dart failed to provide evidence showing the amount in controversy with his notice of removal, as required by prior Tenth Circuit decisions. But, the Court held, a removing class action defendant need only plausibly allege that the amount in controversy exceeds the $5 million jurisdictional threshold. To impose an evidentiary requirement would be inconsistent with the statutory language requiring only a “short and plain statement of the grounds for removal.” Moreover, a plaintiff’s good-faith allegation of the amount in controversy is accepted without more, and the same practice should be extended to defendants.
Finally, in Omnicare, Inc. v. Laborers District Council Industry Pension Fund (No. 13-435), the Court took a balanced approach in addressing when statements of opinion can, and cannot, give rise to liability for false statements in a registration under Section 11 of the Securities Act of 1933. The defendant had expressed an opinion in its registration statement that its practices complied with federal regulations. That turned out to be untrue, but there was no allegation that the defendant knew its practices did not comply. The district court thus dismissed the case, reasoning that a statement of opinion cannot be false unless the registrant knows the facts are otherwise. The Sixth Circuit took the opposite view, holding that a plaintiff bringing a Section 11 claim need not prove false intent and that even genuine expressions of belief that turn out to be untrue can give rise to liability. And the Supreme Court took a middle road, distinguishing between false statements of opinion, on the one hand, and misleading omissions underlying those opinions, on the other. As long as a registrant subjectively holds the opinion, an expression of belief or opinion cannot be false so as to give rise to liability. But, the Court explained, a registrant’s statement of opinion implies that it has some reasonable foundation for that opinion, and if it did not, that can support liability. The absence of a reasonable foundation can thus be an actionable omission. This opinion is likely to alter, substantially, the way Section 11 cases based on statements of opinion are pleaded and litigated.

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§ 192-3 Application for extensions.
§ 192-4 Control of mains and pipes.
§ 192-5 Application for introduction or change of water supply.
§ 192-6 Special provisions for obtaining water service.
§ 192-11 Division of responsibility and ownership.
§ 192-12 Water meter pits.
§ 192-13 Multiple service; master meter.
§ 192-14 Changing of nonconforming existing installations.
§ 192-15 Determination of water consumption.
§ 192-16 Shutoff and reinstallation.
§ 192-17 Provision for meters.
§ 192-18 Use of water; care of pipes and fixtures; shutoff.
§ 192-19 Billing and collecting.
§ 192-21 Use of water from hydrants; penalties.
§ 192-22 Lawn watering systems.
§ 192-23 Emergency water system repair on private property.
§ 192-29 Inspection, testing and maintenance.
§ 192-30 Violations and penalties.
§ 192-31 Discontinuance and restoration of service.
§ 192-34 Authority and powers.
§ 192-34.1 Change of building use.
§ 192-34.2 Discharge of sump pumps or other water prohibited.
§ 192-35 Power to proclaim emergency water ban.
§ 192-36 Effect of ban.
§ 192-37 Use of hydrants.
§ 192-38 Violations and penalties.
§ 192-42 Guidelines and requirements for allocation of capacity for all users.
§ 192-43 Allocation and utilization of gallonage.
§ 192-44 Reserved amounts of gallonage within categories.
§ 192-45 Capacity allocation and adequacy of conveyance systems.
§ 192-46 Revocation and recapture of allocated gallonage.
§ 192-47 Reservation of gallonage; payment of reservation fees.
§ 192-48 Failure to pay; Table of Fees.
§ 192-49 Increase in level of maximum gallonage allocated.
§ 192-50 Previously allocated capacity.
§ 192-51 Newly allocated capacity.
§ 192-53 Creation and maintenance of waiting list.
§ 192-54 Allocation to the waiting list.
§ 192-55 Annual calculation of connection fees.
§ 192-58 Time to connect.
§ 192-64 Well operation permit.
§ 192-69 Exceptions to prohibition.
§ 192-71 Violations and penalties.
§ 192-76 Violations and penalties.
§ 192-79 Yard waste collection.
§ 192-81 Violations and penalties.


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Section 75 to 78 deals with the powers of the court to issue commissions and detailed provisions has been made in Order 26 of the code. The power of the code to issue commission is discretionary and can be exercised by the court for doing complete justice between the parties. It can be exercised by the either on application by a party to the suit or of its own motion(suo motu).
7. To perform ministerial act.
(1) A commission for the examination of any person may be issued to any Court (not being a High Court) situate in a State other than the State in which the Court of issue is situate and having jurisdiction in the place in which the person to be examined resides.
Provided that a commission for examination on interrogatories shall not be issued unless the court, for reasons to be recorded, thinks it necessary so to do.
Explanation : The court may, for the purpose of this rule, accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medical practitioner as a witness.
2. Order for commission.- An order for the issue of a commission for the examination of a witness may be made by the court either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined.
3. Where witness resides within court’s jurisdiction.- A commission for the examination of a person who resides within the local limits of the jurisdiction of the court issuing the same may be issued to any person whom the court thinks fit to execute it.
Provided further that a commission for examination of such person on interrogatories shall not be issued unless the court, for reasons to be recorded, thinks it necessary so to do.
(2) Such commission may be issued to any court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the court issuing the commission may appoint.
(3) The court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate court.
4A. Commission for examination of any person resident within the local limits of the jurisdiction of the court.- Notwithstanding anything contained in these rules, any court may, in the interest of justice or for the expeditious disposal of the case or for any other reason, issue commission in any Suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, and the evidence so recorded shall be read in evidence.
5. Commission or request to examine witness not within India.- Where any court to which application is made for the issue of a commission for the examination of a person residing at any place not within India is satisfied that the evidence of such person is necessary, the court may issue such commission or a letter of request.
6. Court to examine witness pursuant to commission.- Every court receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant thereto.
7. Return of commission with depositions of witnesses.- Where a commission has been duly executed, it shall be returned, together with the evidence taken under it, to the court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and the commission and the return thereto and the evidence taken under it shall subject to the provisions of rule 8 form part of the record of the suit.
(b) the court in its discretion dispenses with the proof of any of the circumstances mentioned in clause (a), and authorizes the evidence of any person being read as I Inserted by Amendment Act 46 of 1999, dt. 30-12-1999. evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.
As a general rule, the evidence of a witness in an action, whether he is a party to the suit or not, should not be taken in an open court and tested by cross examination. In ability to attend the courton grounds of sickness or infirmity or detriment to the public interest may justify issue of a commission. The court has a discretion to relax the rule of attendance in the where the person sought to be examined as a witness resides beyond the local limits of the jurisdiction of the court or on Any other ground which the court thinks sufficient.
In Vinayak trading Co. v. Sham Sunder & Co., it was held that if a party or a witness apprehends danger to his life if he appears before the court, he can be examined on commission.
In Satish Chandra v. Kumar Satish, it was held that Where a party accused of fraud seeks to examine himself on commission, the court may refuse the prayer since the opportunity of noting his demeanour would be lost.
5. If he is residing out of India and the court is satisfied that his evidence is necessary.
The court may issue such a commission either sou motu(of its own motion) or on the application of any party to the suit or of the witness to be examined. The evidence taken on commission shall form the part of the record. It shall, however, not be read in evidence in the suit without the consent of the party against whom it is offered.
10. Procedure of Commissioner.- (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the court.
(2) Report and depositions to be evidence in suit—The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the court or, with the permission of the court, any of the parties to the suit may examine the Commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
(3) Commissioner may be examined in person—Where the court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.
The court may, in any suit, issue a commission to such a person as it thinks fit directing him to make local investigation and to report thereon for the purpose of (a) elucidating or clarifying any matter in dispute, or (b) ascertaining the market value off any property on the amount of any mesne profits or damages or annual net profits.
In Padam Sen v. State of U.P., in this case it was held that the object of local investigation evidence which can be taken in court but to obtain evidence the which from it’s very peculiar nature can be had only on the spot.
Such evidence enables the court to Properly and correctly understand and the evidence on record and clarify any point which is left doubtful. It also helps the court in deciding the question in controversy pending before it, e.g., whether the suit premises is really occupied by the tenant or by the strangers.
Commission to examine or adjust accounts.-In any suit in which an examination or adjustment of the accounts is necessary, the court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment.
12. Court to give Commissioner necessary instructions.- (1) The court shall furnish the Commissioner with such part of the proceedings and such instructions as appear necessary, and the instructions shall distinctly specify whether the Commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination.
(2) Proceedings and report to be evidence—Court may direct further inquiry—The proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit.
In any suit in which examination or adjustment of accounts necessary, the court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment. The court, for this purpose,shall issue necessary instructions to the Commissioner. The proceedings and the report(if any) of the Commissioner sham be evidence in the suits.
13. Commission to make partition of immovable property.- Where a preliminary decree for partition has been passed, the court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.
14. Procedure of Commissioner.- (1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorized thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.
(2) The Commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the court; and the court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same.
(3) Where the court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.
Where a preliminary decree for partition of immovable property has been passed, the court may issue a commission to such person as it thinks fits to make s partition or separation according to the rights declared in such decree. The Commissioner shall, after such inquiry as may be necessary,divide the property into the required number of shares and allot them to the parties. He will then prepare a report appointing the share of each party and distinguishing the same by metes and bound and transmit it to the court. The court shall, after hearing the objections of different parties, make the final allotment.
10A. Commission for scientific investigation.- (1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the court, be conveniently conducted before the court, the court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the court.
(2) The provisions of rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.
Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the court, he conveniently conducted before the court, the court may, if it thinks it necessary or expedient in the interest of justice so to do , issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the court.
10C. Commission for the sale of movable property.- (1) Where, in any suit, it becomes necessary to sell any movable property which is in the Custody of the court pending the determination of the suit and which cannot be conveniently preserved, the court may, if for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to conduct such sale and report thereon to the court.
(2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.
Where, in any suit, it becomes necessary to sell any movable property which is in the custody of the court pending the determination of the suit and which cannot be conveniently preserved, the court may,if, for the reasons to be recorded, if of opinion that it is necessary or expedient in the interest of justice so to do, issue a commission to such person as it thinks fit, directing him to conduct such sale and report thereon to the court.
10B. Commission for performance of a ministerial act.- (1) Where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the court, be conveniently performed before the court, the court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to perform that ministerial act and report thereon to the court.
Where any question arising in the suit involves the performance of any ministerial act which cannot, in the opinion of the court, he conveniently performed before the court, the court may, if, for reasons to be recorded, is opinion that it is necessary or expedient in the interest of justice so to do, the issue a commission to such person as it thinks fit, directing him to perform the ministerial act and report thereon to the court.
By the Amendment Act of 1976, Rules 10-A to 10-C have been inserted to provide for issue of commissions for scientific investigation, sale of movable property or performance of ministerial act. Ministerial work means not the office work of the court but work like accounting, calculation and other work of a like nature which courts are not likely to take up without unnecessary waste of time.
In Jagatbhai v. Vikrambhai,  it was held that the Commissioner appointed by the court dos not perform any judicial functions.
In Padam Sen v. State of U.P., the Supreme Court held that the provisions to issue commissions under the Code of Civil Procedure are exhaustive and, hence, the court cannot exercise inherent powers under Section 151 for this purpose.
In Bandhua Mukti Morcha v. Union of India, it was held that the Supreme Court or the High Courts under the constitution can exercise plenary powers to issue a commission for any purpose.
16- Question objected to before the commissioner- (1) where any question put to a witness is objected to by a party or his pleader in proceedings before a commissioner appointed under this order, the commissioner shall take down the question, answer, objection, and the name of the party or as the case may be the pleader so objecting.
Provided that the commissioner shall not take down the answer to a question which is objected to on the ground of privilege but may continue with the examination of the witness, leaving the party to get the question of privilege decided by the court, and where, the court decides that there is no question of privilege the witness may be recalled by the commissioner and examined by him or the witness may be examined by the court with regard to the question which was objected to on the ground of privilege.
(2) no answer taken down under sub rule (1) shall be read as evidence in the suit except by the order of the court.
Provided that when the Commissioner is not a Judge of a Civil Court, he shall not be competent to impose penalties; but such penalties may be imposed on the application of such Commissioner by the court by which the commission was issued.
(2) A Commissioner may apply to any court (not being a High Court) within the limits of whose jurisdiction a witness resides for the issue of any process which he may find it necessary to issue to or against such witness, and such court may, in its discretion, issue such process as it considers reasonable and proper.
Parties to appear before Commissioner.- (1) Where a commission is issued under this Order, the court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.
(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence.
The rule empowers the court to fix the date of return of a commission.- 18B. Court to fix a time for return of commission.- The court issuing a commission shall fix a date on or before which the commission shall be returned to it after execution, and the date so fixed shall not be extended except where the court, for reasons to be recorded, is satisfied that there is sufficient cause for extending the date.
Rule 15 provides that the court may, if it thinks fit, order the party requiring the commission to deposit the necessary expenses within the fixed period.
(c) that the witness is residing within the limits of the High Court’s appellate jurisdiction, it may, subject to the provisions of rule 20, issue a commission for the examination of such witness.
(c) by a letter of request issued by the foreign court and produced before the High Court by a party to the proceeding.
(b) upon an application by a law officer of the State Government acting under instruction from the State Government.
To whom commission may be issued.- A commission under rule 19 may be issued to any court within the local limits of whose jurisdiction the witness resides, or where the witness resides within the local limits of the ordinary original civil jurisdiction of the High Court, to any person whom the court thinks fit to execute the commission.
Rules 19 to 22 provide that if a High Court is satisfied that a foreign court wishes to obtain the evidence of a witness residing within its appellate jurisdiction in a proceeding of a civil nature, it may issue a commission for the examination of such witness.
A judicial function of a court cannot be delegated to a commission. In Narayana Menoki v. Raman Nair, it was held that no commission can be issued to value the property in dispute as it is function of the court. But commission can be appointed to gather data to help such determination by the court.
Similarly in Habibbhai v. Maganbhai, it was held that commission cannot be appointed to scrutinize votes at the election, but it can be entrusted work of separating undisputed votes from disputed votes or of counting votes as it is merely a ministerial work.
In Padma Sen v. State of U.P., again it was said that it is not the business of the court to collect evidence for a party or to protect the rival party from the evil consequences. A civil court, hence cannot appoint a commission to seize account books in possession of any party on the ground that an opposite party has an apprehension that they would be tempered with.
The report of the Commissioner would furnish prima facie evidence of the facts and data collected by the Commissioner. It will constitute an important piece of evidence and cannot be rejected except on the sufficient grounds. It would, however be open to the court to consider what weights to be attached to the data collected by the Commissioner and reflected in the report and to what extent act upon them.
The limitation for the issue of commission set out in Section 79 and Order 26 of the Code do not apply to the issuance of commission by the Supreme Court or by the High Courts in exercise of their powers under the Constitution of India.
1. Discuss the powers of a court relating to appointment of a commission.
Section 75 to 78 deal with the powers of the court to issue commissions and detailed provisions have been made in Order 26 of the code. The power of the code to issue commission is discretionary and can be exercised by the court for doing complete justice between the parties. It can be exercised by the either on application by a party to the suit or of its own motion (suo motu).
2. Under what circumstances the court could issue commissions?
3. How the commission could be appointed to record the statements of certain witnesses who could not come to India?
Rule 5 provides- Commission or request to examine witness not within India. – Where any court to which application is made for the issue of a commission for the examination of a person residing at any place not within India is satisfied that the evidence of such person is necessary, the court may issue such commission or a letter of request.
4. The courts cannot reach to the help of each and every litigant without resorting to the provisions of S. 75 to 78 C.P.C. Discuss in detail the importance of this statement whether these provisions aid and assist the courts to extend their jurisdiction outside four walls of a court room?

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Registration/Licensing/Accreditation: Attendance at an approved or registered private or parochial school exempts students from compulsory public school attendance. W. Va. Code § 18-8-1. Schools may seek "approval" to operate from the local board of education or "register" with the state superintendent. If a school registers to operate, it follows Chapter 18, Article 28 and administers a comprehensive test of basic skills on an annual basis. See Curriculum, Testing. If a school complies with Article 28, no other education provisions apply except requirements respecting fire, safety, sanitation and immunization. W. Va. Code § 18-28-6.
Recordkeeping/Reports: "Approved" private and parochial schools serving students in lieu of public school are required to furnish county boards of education any information and records requested regarding attendance, instruction, and progress of pupils under 16 years of age. W. Va. Code § 18-8-1 (Exemption A). Private, parochial and church schools are required to maintain annual attendance and disease immunization records for each pupil enrolled. Attendance records must be made available to parents/guardians. Upon request of the County Superintendent of Schools, the school must furnish a list of names and addresses of all students between 6 and 16 years of age. W. Va. Code § 18-28-2.
New schools operating under Chapter 18, Article 28, must send the State Superintendent of Schools a notice of intent to operate, name and address of the school, and name of the school's chief administrator. Schools must also notify the Superintendent upon termination. W. Va. Code § 18-28-5.
Length of School Year/Day: "Approved" private and parochial schools serving students in lieu of public school must be open for a time equal to the county school term. W. Va. Code § 18-8-1. Private, parochial or church schools that are "registered" must observe a minimum instructional term of 180 days with an average of five hours of instruction per day. W. Va. Code § 18-28-2.
Instruction in English: The basic language of instruction for approved private and parochial schools is the English language. W. Va. Code § 18-2-7.
Curriculum: Approved private, parochial and denominational schools are required to provide at least one year of instruction in West Virginia history prior to completion of the eighth grade. In addition, such schools must require regular courses in the history of the United States in civics, the constitution and the government of both West Virginia and the United States by the completion of the twelfth grade. The boards of private, parochial and denominational schools have a duty to prescribe courses covering these subjects similar to those required in the public schools. W. Va. Code § 18-2-9.
Private and parochial schools are required to use a state prescribed course of study in fire prevention. W. Va. Code § 18-2-8.
Driver education courses offered by private, parochial, or denominational schools must comply with minimum standards established by the State Board of Education. W. Va. Code § 18-6-3.
Private, parochial and church schools may elect to administer a standardized test on an annual basis in lieu of approval requirements. The school administrator may select the comprehensive test of basic skills, the California Achievement Test, the Stanford Achievement Test or the Iowa Tests of Basic Skills/Tests of Achievement and Proficiency. All students between the ages of 6 and 16 must be tested. Student test results and the school composite test results must be made available to parent/guardians. Upon request, the school composite test results must be furnished to the State Superintendent of Schools. Each of these schools must establish curriculum objectives and provide an instructional program to develop the students' potential for becoming literate citizens. If a school's composite test results fall below the fortieth percentile, the school must initiate a remedial program. If the results are not raised above the fortieth percentile level after two consecutive calendar years, attendance at the school may no longer satisfy the compulsory school attendance requirement. W. Va. Code § 18-28-3. Private, parochial or church schools complying with these provisions may participate in any state operated program made available by law. W. Va. Code § 18-28-4.
Special Education: The State Superintendent of Schools is responsible for assuring that all exceptional children in private schools receive an education in accordance with state and federal laws. W. Va. Code § 18-20-5(5).
Health: County boards of education may provide screening tests for vision, hearing, speech and language disabilities upon request for children entering nonpublic schools. W. Va. Code § 18-5-17(a).
It is a misdemeanor to permit the use of a common drinking cup in parochial or private schools. W. Va. Code § 16-9-1.
Safety: Private, parochial and church schools are subject to reasonable fire, health, and safety inspections by state, county, and municipal authorities as required by law. W. Va. Code § 18-28-2.
The state fire marshall will inspect all private schools for fire exits and reasonable safety standards and report his findings and recommendations to the proper administrative heads. W. Va. Code § 29-3-12(d).
A person 18 or older convicted of a felony for distribution of a controlled substance within 1,000 feet of the real property of a private elementary or secondary school, if incarcerated, is ineligible for parole for 2 years. W. Va. Code § 60A-4-406(a).
It is a misdemeanor to possess a firearm or other deadly weapon on a school bus or in or on any school building, structure, facility or grounds, except for law enforcement officers in their official capacity, persons authorized by the county board of education or school principal to conduct a program with a valid education purpose, and under some circumstances a person possessing or leaving locked-up an unloaded firearm or other deadly weapon in a motor vehicle. It is a felony to possess any firearm or any other deadly weapon with the intent to commit a crime. Revocation or denial of a motor vehicle license or instruction permit is among possible penalties. It is a misdemeanor for a parent, custodian or legal guardian of a minor, who knows that the minor has violated this provision, or has reasonable cause to believe that a violation is eminent, not to report the belief to the school or law enforcement officials. W. Va. Code § 61-7-11a.
Transportation: County boards of education have the authority to provide at public expense transportation for all school age children who live more than two miles distance from school. W. Va. Code § 18-5-13(60)(a).
Private, parochial, and church schools must comply with the West Virginia school bus safety regulations. W. Va. Code § 18-28-2.
The person or persons providing the instruction must submit satisfactory evidence of a high school diploma or its equivalent and formal education at least four years higher than the most academically advanced child for whom the instruction will be provided. The person providing home instruction must outline a plan of instruction for the ensuing school year. W. Va. Code § 18-8-1 (b)(2)(3).
The person or persons providing the instruction shall annually obtain an academic assessment of the child for the previous school year. This can be satisfied by an approved standardized test; a written narrative indicating that a portfolio of samples of the child's work has been reviewed by a certified teacher or other person mutually agreed upon by the parent and the superintendent, and that the child's academic progress is in accordance with the child's abilities; or evidence of an alternative assessment of the child's proficiency mutually agreed upon by the parent and the superintendent. The assessment of progress must be submitted on or before the 30th of June of the school year covered by the assessment. W. Va. Code § 18-8-1 (b)(4).
The superintendent or a designee shall offer such assistance, including textbooks, other teaching materials and available resources, as may assist the person or persons providing home instruction subject to their availability. Any child receiving home instruction may, upon approval of the county board of education, exercise the option to attend any class offered by the county board of education as the person or persons providing home instruction may deem appropriate subject to normal registration and attendance requirements. W. Va. Code § 18-8-1 (b)(4)(iii).
Public Aid for Private Schools/Private School Students: The sale of textbooks, tangible personal property and services for nonprofit elementary and secondary schools, and food bought for and sold to students is exempt from consumers sales tax. W. Va. Code § 11-15-9.
County boards of education may provide state-adopted textbooks for pupils enrolled in private schools whose parents are unable to provide textbooks. W. Va. Code § 18-5-21b.
Miscellaneous: Private and parochial secondary schools may elect to join the West Virginia Secondary School Activities Commission for interscholastic athletic events and band activities on the same basis as public schools. W. Va. Code § 18-2-25.


The term “firearm” means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of title 18, United States Code); and (8) a destructive device. The term “firearm” shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector’s item and is not likely to be used as a weapon.
The term “rifle” means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.
The term “shotgun” means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles (ball shot) or a single projectile for each pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed shotgun shell.
The term “any other weapon” means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.
The term “destructive device” means (1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellent charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device; (2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes; and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled. The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 7684(2), 7685, or 7686 of title 10, United States Code; or any other device which the Secretary finds is not likely to be used as a weapon, or is an antique or is a rifle which the owner intends to use solely for sporting purposes.
The term “antique firearm” means any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 (including any matchlock, flintlock, percussion cap, or similar type of ignition system or replica thereof, whether actually manufactured before or after the year 1898) and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.
The term “unserviceable firearm” means a firearm which is incapable of discharging a shot by means of an explosive and incapable of being readily restored to a firing condition.
The term “make”, and the various derivatives of such word, shall include manufacturing (other than by one qualified to engage in such business under this chapter), putting together, altering, any combination of these, or otherwise producing a firearm.
The term “transfer” and the various derivatives of such word, shall include selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of.
The term “dealer” means any person, not a manufacturer or importer, engaged in the business of selling, renting, leasing, or loaning firearms and shall include pawnbrokers who accept firearms as collateral for loans.
The term “importer” means any person who is engaged in the business of importing or bringing firearms into the United States.
The term “manufacturer” means any person who is engaged in the business of manufacturing firearms.
A prior section 5845, act Aug. 16, 1954, ch. 736, 68A Stat. 725, related to the importation of firearms into the United States or its territory, prior to the general revisions of this chapter by Pub. L. 90–618.
Provisions similar to those comprising this section were contained in prior section 5848, act Aug. 16, 1954, ch. 736, 68A Stat. 727, as amended by acts Sept. 2, 1958, Pub. L. 85–859, title II, § 203(f), 72 Stat. 1427; June 1, 1960, Pub. L. 86–478, § 3, 74 Stat. 149, prior to the general revision of this chapter by Pub. L. 90–618.
2018—Subsec. (f). Pub. L. 115–232 substituted “section 7684(2), 7685, or 7686 of title 10, United States Code” for “section 4684(2), 4685, or 4686 of title 10 of the United States Code”.
1986—Subsec. (a)(7). Pub. L. 99–308, § 109(b), substituted “any silencer (as defined in section 921 of title 18, United States Code)” for “a muffler or a silencer for any firearm whether or not such firearm is included within this definition”.
Subsec. (b). Pub. L. 99–308, § 109(a), substituted “any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun,” for “any combination of parts designed and intended for use in converting a weapon into a machinegun,”.
1976—Subsec. (a). Pub. L. 94–455, § 1906(b)(13)(A), struck out “or his delegate” after “Secretary”.
Subsec. (f). Pub. L. 94–455, § 1906(b)(13)(A), (J), struck out “or his delegate” after “shotgun or shotgun shell which the Secretary” and “of the Treasury or his delegate” after “or any other device which the Secretary”.
Amendment by Pub. L. 99–308 effective 180 days after May 19, 1986, see section 110(a) of Pub. L. 99–308, set out as a note under section 921 of Title 18, Crimes and Criminal Procedure.
Section effective on first day of first month following October 1968, except as to persons possessing firearms as defined in subsec. (a) of this section which are not registered to such persons in the National Firearms Registration and Transfer Record, see section 207 of Pub. L. 90–618, set out as a note under section 5801 of this title.


Petitioner is presently incarcerated at the Federal Penitentiary in Lewisburg, Pennsylvania and has been granted leave to proceed in forma pauperis with his self-styled "Application of a Writ of Mandamus" to compel the United States Board of Parole to show cause why his petition for parole was denied.
In recent months petitioner has filed a number of motions, *fn1" all of them essentially requesting this court to order the Board to give reasons for denial of parole and, upon its failure to do so, to release him from further confinement. The defendant has responded by filing a Motion to Dismiss, asserting that: petitioner has filed what appears to be a Petition for Writ of Habeas Corpus seeking relief from his detention in the Middle District of Pennsylvania, there being no jurisdiction to hear such a petition in the Eastern District of Pennsylvania; and petitioner's allegations fail to present a claim upon which relief can be granted, the Parole Board having absolute discretion to grant or deny parole.
We held oral argument at which petitioner was ably represented by Scott Junkin, a third year law student and member of the University of Pennsylvania's Indigent Prisoner Litigation Program. *fn2" Upon review of the issues raised at oral argument and in the briefs submitted by the parties, we are persuaded that defendant's Motion to Dismiss must be denied.
Because petitioner seeks relief from detention in the Middle District, defendant maintains that this is a habeas corpus action and that a critical jurisdictional element is lacking; that is, the presence of the custodian within the territorial jurisdiction of this court. This is not an action for habeas corpus, however, but for mandamus relief. Although petitioner's pro se complaint is inartfully pleaded, and does request release from custody, it is to be liberally construed by this court. Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); Lockhart v. D'Urso, 408 F.2d 354 (3d Cir. 1969). Therefore, we will dismiss petitioner's request for release on improper venue grounds, but will entertain his demand for disclosure of reasons for denial of parole.
If the action is against a federal official, venue is proper in the district where either the defendant-official resides, where the claim arose or where the plaintiff-petitioner resides. See 28 U.S.C. § 1391(e). For venue purposes the term "resides" refers to domicile, 1 Moore's Federal Practice P 0.142 [5.-2], at 1484 n. 5, and a state or federal prisoner retains the domicile he had before he was incarcerated. 25 Am. Jur. 2d, Domicile § 41, at 31. An examination of Harrison's Classification Study, prepared by the Bureau of Prisons, and of his Presentence Report, prepared by the Probation Department, indicates that petitioner was domiciled in Philadelphia before his incarceration at Lewisburg. Hence, venue is proper in the Eastern District of Pennsylvania.
Moreover, petitioner asserts that the mandamus statute, 28 U.S.C. § 1361, provides for jurisdiction in the district courts to compel performance of duties owed to the plaintiff. It is argued here that the Parole Board owes petitioner a constitutional duty, grounded on the Due Process Clause of the Fifth Amendment, to provide him with reasons for denial of his parole bid. We must determine whether or not this claim is capable of relief enforceable by mandamus.
"[It] has never been held that the Parole Board, or for that matter any other government agency that makes such weighty determinations as that between an individual's incarceration and his relative freedom, may exercise its admittedly broad discretion in an arbitrary and capricious manner." Id. at 5.
The rudiments of procedural due process are not observed unless the administrative body details the reasons for its findings. See Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); In Re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967); Davis, Administrative Law, § 16.12, at 585 (1970 Supp.). Here, petitioner merely seeks a statement of reasons for the denial of his parole so that he may adjust appropriately his future conduct. The withholding of such reasons raises a serious question with respect to whether procedural due process has been violated.
We are persuaded, as was the New Jersey Supreme Court in Monks v. New Jersey State Parole Board, 58 N.J. 238, 277 A. 2d 193, 197 (1971), that "[the] need for fairness is as urgent in the parole process as elsewhere in the law and . . . the furnishing of reasons for denial would be the much fairer course . . . " The need for a statement of reasons or findings not only insures a responsible and just determination by the agency, but also affords a proper basis for effective judicial review. The New Jersey decision is consistent with the recent expansion by the United States Supreme Court of due process guarantees with respect to parole revocation proceedings. Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). An analogous trend may be found in the selective service reclassification cases decided in this Circuit. See, e.g., United States v. Neamand, 452 F.2d 25, 26, 30 (3d Cir. 1971); United States v. Hershey, 451 F.2d 1007, 1008 (3d Cir. 1971); Scott v. Commanding Officer, 431 F.2d 1132, 1137 (3d Cir. 1970). Moreover, the furnishing of reasons will have a positive effect on the goal of rehabilitation. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Corrections, at 64 (1967); Davis, Discretionary Justice, at 131 (1969). Furthermore, the requirement that the Board give its reasons for denial of parole does not cast an undue burden upon the administrative body.


text:
In the exemplary interface shown in FIG. 21, the user may also, for example, relate the invitation to enter a particular event 2130 and set an expiration time 2140. However other configuration options such as setting an applicable geographical area and other time constraints may also be offered. In FIG. 21, the user has related the invitation to the “WWDC” conference and set an expiration time to be “Fri, June 10 at 10 AM.” In some embodiments, the relating of the invitation to a particular event may enable the users to have access to certain maps and wireless access ports hosted by the particular event, which may, for example, offer more accurate non-GPS location information (i.e., specific conference rooms). The expiration time sets a limit on how long the user and the invited friends may share location information.
FIG. 23 shows an exemplary embodiment displaying an invitation. This invitation may include the related event 2310 and text 2320 explaining the details of the request to share location information including the set expiration time. The names of all parties invited to share location invitation and their response status 2330, 2340, and 2350 may also be displayed. As illustrated, a check mark may be placed next to a person's name to indicate that the person has accepted the invitation. Similarly, a question mark may be displayed next to a person's name to indicate that the person has not yet replied to the invitation and so it is still uncertain whether they will accept the invitation. If a person declines the invitation, an X may be displayed next to their name to indicate their decision to not share location information. This may also indicate that the person is not in the geographic area of the conference and/or, in some cases, has not checked in. Upon receipt of an invitation, a device user may decline or accept by selecting one of the available options 2360 and 2370.
FIG. 24 illustrates an embodiment showing what a user would likely see when the user selects to view the temporary friend 2460 and after invited friends have accepted a user's invitation to share limited-time location information. As shown in FIG. 24, there is an event 2410, WWDC, associated with the sharing of this location information. As mentioned above, in some embodiments, certain additional features may become available when the locate is associate with a particular hosted event, like connecting to local geo-coded access ports and receiving notifications from the event organizer. Alternatively or in addition, entering the event name and associating the locate with an event may simply auto-fill information such as the end time of the conference or event. Here, the end time 2420 of the locate permission is shown to expire on June 10 at 10 am. Information relating to the friends that have accepted a temporary locate request is shown on this display 2430 a, 2430 b. Similar to the embodiment shown in FIG. 9, the friend information may include, among other things, the name of the friend, their last known location and time of that last known location. Preferably specific to associating requests to a particular event, a user may be able to contact all of the other users on the list by clicking on a a button to send a group message 2440. This button, when selected, may allow the user to compose one message which will be sent to each friend who accepted the invitation to share location information. The user may also select a button to view a map 2450 which, when selected, may display an overhead map which indicates each friend's location upon it. As mentioned above, the map may be a typical location map or may be a map customized and associated with the related event (i.e., a map showing the rooms inside of the Moscone Center and Yerba Buena Center).
and sending, by the server, a shallow locate request to the one or more requested devices when it is determined that the request for location requires only an approximate response, the shallow locate request indicating an acceptable accuracy range for each of the one or more requested devices, allowing each of the one or more requested devices to determine a location using a degree of accuracy that is permitted under the acceptable accuracy range, and directing each of the one or more requested devices to provide the location to the server.
2. The computer-implemented method of claim 1, wherein the shallow locate request allows each of the one or more requested devices to determine the location using a rate of power consumption that is permitted under the acceptable accuracy range.
3. The computer-implemented method of claim 1, wherein the shallow locate request can be interpreted by each of the one or more requested devices to be fulfilled without using an available global positioning system device.
5. The computer-implemented method of claim 4, wherein the request for permission is for a set period of time.
7. The computer-implemented method of claim 5, wherein the permission to receive location information relating to a requested device is for a set period of time.
and the requested device is configured to wirelessly receive the shallow location request, interpret the shallow location request for an acceptable accuracy range, to determine its location using a less accurate, and lower power mechanism when the acceptable accuracy range permits, and sending a location response to the server.
11. The system of claim 10, wherein the location response comprises a location and an accuracy delta.
sending, by the server, the current geographic location information to the requesting device.
13. The instructions of claim 12, wherein the shallow location request, allows the requested device to determine the location using a rate of power consumption that is permitted under the acceptable accuracy range.
14. The instructions of claim 12, wherein the server is further configured to process the received request for location with a shallow locate heuristic, wherein, the server determines that an approximate location of the requested device will satisfy the received request.
15. The instructions of claim 12, wherein the location is associated with an accuracy delta.
16. The instructions of claim 12, the operations further comprising: receiving, from the requested device, permission to receive location information relating to the requested device.
17. The instructions of claim 16, wherein the permission to receive location information relating to a requested device is for a set period of time.
18. The instructions of claim 12, the operations further comprising: determining whether the requesting device has permission to receive location information relating to each requested device.
19. The computer-implemented method of claim 1 further comprising: sending a deep locate request to the requested devices when it is determined that the request for location requires a relatively accurate response.
20. The computer-implemented method of claim 19, wherein the deep locate request can be interpreted by the receiving device to be fulfilled using a global positioning system device.
21. The computer-implemented method of claim 1, wherein the requested device is a mobile device.
22. The computer-implemented method of claim 1, wherein the sending of the shallow locate request comprises wirelessly transmitting the shallow locate request to the requested device.
23. The computer-implemented method of claim 3, wherein the shallow locate request can be interpreted by the receiving device to be fulfilled using a lower power mechanism.
24. The system of claim 10, wherein the requested device is further configured to determine its location using a global positioning system (GPS) device when the acceptable accuracy range does not permit using a less accurate mechanism.
25. The system of claim 10, wherein the requesting device and requested device are each user devices.
26. The instructions of claim 12, the operations further comprising: sending a deep location request when the shallow locate heuristic determines that the request cannot be answered with an approximate location.
27. The computer-implemented method of claim 1 further comprising: receiving, at the server, a request for permission to receive location information relating to one or more of the requested devices; receiving, at the server, an approval or denial of the request for permission from at least one requested device; and determining whether the requesting device has permission to receive location information relating to each requested device.
28. The computer-implemented method of claim 27, wherein an approval of the request specifies a start time and an end time when the requesting device has permission to receive location information relating to each requested device.
29. The system of claim 10, wherein the server is further configured to process the received request for location with a deep locate heuristic such that the server determines that a relatively accurate location of the requested device will satisfy the received request when the request specifies only one requested device.
Australian Patent Examination Report No. 1 in Australian Application No. 2012202929, mailed Sep. 28, 2013, 3 pages.
Australian Patent Examination Report No. 1 in Australian Application No. 2013203926, mailed Oct. 7, 2014, 5 pages.
Chinese Office Action in Chinese Application No. 201210288784.3, mailed Jul. 3, 2014, 16 pages (with English Translation).
European Search Report mailed on Sep. 21, 2012 for EP Patent Application No. 12168980.6, 7 pages.
Final Office Action mailed on May 8, 2013 for U.S. Appl. No. 13/488,430, 19 pages.
International Preliminary Report on Patentability in International Application No. PCT/US/2012/038718, mailed Nov. 26, 2013, 5 pages.
International Search Report mailed on Aug. 17, 2012 for PCT Patent Application No. PCT/US2012/038718, 5 pages.
Japanese Office Action mailed on May 27, 2013 for JP Patent Application No. 2012-113725, 5 pages.
Korean Preliminary Rejection in Korean Application No. 10-2012-54888, mailed Sep. 5, 2014, 9 pages (with English Translation).
Non-Final Office Action mailed on Dec. 5, 2012 for U.S. Appl. No. 13/488,430, 13 pages.
Search and Examination Report mailed on Aug. 24, 2012 for GB Patent Application No. GB1209044.5, 10 pages.
Written Opinion of the International Searching Authority mailed on Aug. 17, 2012 for PCT Patent Application No. PCT/US2012/038718, 4 pages.

matches:
Application No. 2012202929
Application No. 2013203926
Application No. 201210288784
Application No. 12168980
Application No. 2012
Application No. 10


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USA v. Jeanette Grigsby, No. 11-2473.
In her sworn statement to the court, however, Grigsby minimized her role in the offense, trying to pin most of the blame on her coconspirators. So at sentencing the district court applied …….. a three-level enhancement to account for her supervisory role in the offense, see id. § 3B1.1(b).
A defendant who is “an organizer or leader” of a criminal scheme involving five or more participants gets a four-level enhancement under U.S.S.G. § 3B1.1(a); “a manager or supervisor” of a scheme involving five or more participants gets a three-level enhancement under § 3B1.1(b); and “an organizer, leader, manager, or supervisor” of a smaller scheme gets a two-level enhancement under § 3B1.1(c).
[i]n distinguishing a leadership and organizational role from one of mere management or supervision, titles such as “kingpin” or “boss” are not controlling. Factors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy. This adjustment does not apply to a defendant who merely suggests committing the offense.
U.S.S.G. § 3B1.1 cmt. n.4.
These factors are sometimes applied to determine whether a defendant was a manager or supervisor for purposes of § 3B1.1(b), but we have recently clarified that these factors are meant to distinguish a leader or organizer from a supervisor or manager. See United States v. Figueroa, 682 F.3d 694, 694-95 (7th Cir. 2012).
We held in Figueroa that a manager or supervisor should be straightforwardly understood as simply someone who helps manage or supervise a criminal scheme. Id. at 697-98.
Here, Grigsby initiated the scheme, played a leading role in recruiting the coconspirators, and supervised the execution of the staged robberies from outside the bank. She then took custody of the proceeds and divided the money among the coconspirators. On these facts Grigsby may well have qualified for the “organizer or leader” enhancement, but the district court surely had a sufficient factual basis to apply the lesser “manager or supervisor” enhancement.
The committee notes to § 3B1.1 make it clear that “[t]here can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy.” U.S.S.G. § 3B1.1 cmt. n.4. The same is obviously true of the “manager or supervisor” designation.
Grigsby’s participation in planning the scheme, recruiting the participants, and directing its execution all confirm her role as a supervisor.

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