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FindACase | Hebert v. Vantage Travel Service, Inc.
Hebert v. Vantage Travel Service, Inc.
VANTAGE TRAVEL SERVICE, INC. d/b/a VANTAGE DELUXE WORLD TRAVEL and VANTAGE ADVENTURES, Defendant.
Plaintiffs Ronald Hebert and Aime Denault (“Plaintiffs”) have filed this lawsuit against Defendant Vantage Travel Service, Inc. (“Vantage”) alleging breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, breach of common law warranties, negligent misrepresentation and violation of the Massachusetts Consumer Protection Act, Mass. Gen. L. c. 93A, §§ 2 and 9. D. 1-1. Vantage has moved to dismiss, or in the alternative, for summary judgment, on the basis of a forum selection clause. D. 7. Plaintiffs have filed a cross-motion to strike portions of the declaration Vantage attached to its motion. D. 14 at 6-7. For the reasons stated below, the Court DENIES both motions.
Courts in this Circuit generally analyze a motion to dismiss on the basis of a forum selection clause as a motion to dismiss under Fed.R.Civ.P. 12(b)(6). See Rivera v. Centro Médico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009). Under Rule 12(b)(6), the Court will dismiss a pleading that fails to include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
When reviewing a motion pursuant to Fed.R.Civ.P. 12(b)(6), the Court “may properly consider only facts and documents that are part of or incorporated into the complaint; if matters outside the pleadings are considered, the motion must be decided under the more stringent standards applicable to a Rule 56 motion for summary judgment.” Trans-Spec Truck Serv. Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008); see also Fed.R.Civ.P. 12(d). The Court may make exceptions for “documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint.” Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001)(quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)). If the documents do not fall within this narrow class of exceptions, and the Court nevertheless considers them in deciding the motion, the parties “must be given a reasonable opportunity to present all the material that is pertinent to the motion, ” and the motion “must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d).
Under Fed.R.Civ.P. 56, the Court will grant summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. A disputed fact is material if it has the potential to “affect the outcome of the suit under the applicable law.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)) (internal quotation marks omitted). The movant bears the burden of demonstrating the absence of a genuine issue of material fact, Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000), and the Court will “constru[e] the record in the light most favorable to the non-movant and resolv[e] all reasonable inferences in that party's favor, ” Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir. 2009).
Vantage is a Massachusetts corporation that operates and sells international travel tours to international customers, with the majority of its customer base in the United States. D. 10 ¶¶ 1-3; D. 18 ¶¶ 1-3. In 2015, Plaintiffs-Hebert, a Louisiana citizen, Denault, a Massachusetts citizen, and other Vantage customers they seek to represent-contracted with Vantage for a “5 Star Luxury” river cruise on the MS River Voyager that was set to begin in July 2016 and travel through Austria, Germany and Hungary. D. 1-1 ¶¶ 5-6, 16. Plaintiffs paid for their tickets. D. 1-1 ¶ 7.
Two of Vantage's river tours are implicated in this case: the “Majestic Rivers of Europe” tour, scheduled to be a seventeen-day, sixteen-night tour on the MS River Voyager commencing in Bonn, Germany on July 8, 2016, and the “Highlights of the Danube” tour, an eleven-day, ten-night river tour scheduled to board the MS River Voyager in Nuremburg, Germany, on July 15, 2016. D. 10 ¶ 9; D. 18 ¶ 9. On or about July 14, 2016, however, the Plaintiffs were directed to disembark the MS River Voyager. D. 10 ¶ 13; D. 18 ¶ 13. Vantage alleges-and Plaintiffs dispute-that this disembarkation was due to a mechanical failure on the MS River Voyager at this time. D. 10 ¶¶ 13-14; D. 18 ¶¶ 13-14. After disembarking, Plaintiffs were transported by bus for eight days. D. 1-1 ¶ 7; D. 10 ¶¶ 15-16; D. 18 ¶¶ 15-16. Passengers were permitted to board the MS River Voyager again on July 22, 2016, in Budapest, Hungary, for the final night of the scheduled cruises. D. 10 ¶ 16; D. 18 ¶ 16. Following the trip, Vantage did not provide refunds to Plaintiffs. D. 1-1 ¶ 8; D. 18 ¶ 30.
Vantage alleges that its general practice at the time was “to provide all passengers, prior to embarkation, the Passenger Ticket Contract which governed all claims or disputes arising out of the ownership and/or operation of riverboats and cruise ships used on tours.” D. 9 ¶ 5; D. 10 ¶ 4.
25. CHOICE OF FORUM. VENUE FOR ALL DISPUTES ARISING OUT OF THE OWNERSHIP AND/OR OPERATION OF THE SHIP SHALL LIE BEFORE THE COURTS OF ENGLAND AND WALES SITUATED IN LONDON ENGLAND TO THE EXCLUSION OF THE JURISDICTION OF THE COURTS OF ANY OTHER COUNTRY. FOR ALL OTHER DISPUTES ARISING UNDER OR IN RESPECT OF THIS TICKET CONTRACT, VENUE SHALL LIE BEFORE ANY COURT OF COMPETENT JURISDICTION LOCATED IN (A) BOSTON, SUFFOLK COUNTY, COMMONWEALTH OF MASSACHUSETTS, OR (B) MIAMI, DADE COUNTY, STATE OF FLORIDA, OR (C) RENO, WASHOE COUNTY, STATE OF NEVADA, TO THE EXLUSION OF THE COURTS OF ANY OTHER STATE OR COUNTRY, WITH THE CHOICE GIVEN TO THE PARTY INITIATING THE ACTION.

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1.1 The Complainants in this administrative proceeding are Ellerman Investments Limited, a private company with limited liability incorporated under the laws of England with its principal place of business in England and The Ritz Hotel Casino Limited, also a private company with limited liability, incorporated under the laws of England, with its principal place of business in England. The First Complainant is the 75% shareholder of the Second Complainant, both having London SW1A 1ES, UK as their business address.
1.2 The Respondent in this administrative proceeding is Antonios Manessis (trading as .com and MANESSIS.COM), Corfu, Greece, GR49100, Greece.
3.1 The Complaint was filed electronically on December 17, 2001.
3.5 The Complainant agreed that its claim and remedies concerning the registration of the Domain Name, the dispute, or the dispute�s resolution shall be solely against the Domain Name holder and waived all such claims and remedies against (a) the WIPO Arbitration and Mediation Center and Panelists, except in the case of deliberate wrongdoing, (b) the concerned Registrar, (c) the Registry Administrator, (d) the Internet Corporation for Assigned Names and Numbers, as well as their directors, officers, employees and agents.
3.6 On December 28, 2001, the WIPO Arbitration and Mediation Center ("the Center") transmitted via e-mail to, a request for registrar verification in connection with this case and on January 2, 2002, the Center received a verification response confirming that the domain names is registered with Network Solutions and that the Registrant for the domain name is the Respondent.
3.7 Notification of Complaint and Commencement of Administrative Proceeding was sent to Respondent by the Center on January 24, 2002, electronically, by fax and by registered mail.
The facsimile transmission was also unsuccessful.
3.8 Respondent was determined to be in default on February 15, 2002.
This is the first email I receive as a notification.
Could you please resend "original" notification....in order to forward it to my lawyer.
In order for us to communicate successfully with you we kindly request that you provide us with alternative contact details.
We would also be grateful if you were to confirm receipt of this email and two previously sent by us informing you of the appointment of Panel and Transmission of Case File to the Panel.
Please note that the Center will attempt to send this communication to you via facsimile as well.
The Center acknowledges receipt of your email communication dated February 25, 2002 (see below). In this regard, please be advised that the Center has fulfilled its duties under paragraphs 2 of the Rules, as evidenced by our communication records sent to you by our email of February 25, 2002.
3.12 The single Panel member, Cecil O.D. Branson, Q.C., submitted a Statement of Acceptance and Declaration of Impartiality and Independence and was duly appointed on February 25, 2002, in accordance with paragraph 15 of the Rules. The Panel was required to forward its decision to the Center by March 11, 2002.
3.13 Subsequent to receiving the file by electronic communication from the Center, the Panel, in light of the e-mail referred to paragraph 3.10 above, sought further information from the parties and the Center in order that it could be satisfied that the service requirements of the Complaint on the Respondent were conducted properly and that the Respondent thereafter had an adequate opportunity to file a Reply. As the result of subsequent communications from the Center and on behalf of the Complainants, this Panel is so satisfied of this and that it has jurisdiction to proceed.
3.14 The Panel finds that it was properly constituted and appointed in accordance with the Rules and the Supplemental Rules.
4.1 The Complainant Ellerman Investments Limited is a limited liability company incorporated under the laws of England and having its principal place of business in England. The Complainant, Ritz Hotel Casino Limited, is also a private company incorporated under the laws of England, with its principal place of business in England. The first Complainant is the 75% shareholder of the second Complainant. The second Complainant is the exclusive licensee of the first Complainant�s rights in certain "Ritz" trademarks for the provision of gaming services at the Ritz Casino.
4.2 According to the Network Solutions, Inc Whois database, the Registrant of the domain name at issue is ".com". However the administrative and billing contact for the domain name is Mr. Antonios Manessis. Mr Manessis, in his capacity as the administrative and billing contact, gives the same address as ".com". In providing his contact details as administrative and billing contact he identifies the further trading style "manessis.com". Further, in the course of this administrative proceeding Mr. Manessis has represented that he is the correct registrant for the domain name. Therefore, this Administrative Panel finds that the Respondent in this administrative proceeding is Antonios Manessis, trading as ".com" and <manessis.com>, from Corfu, Greece.
4.3 The first Complainant is the owner of The Ritz Hotel (London) Limited, the company that owns and runs the well-known Ritz Hotel in London, England. The second Complainant is the recipient of an exclusive licence from the first Complainant in relation to the use of Ritz Trade Marks for the provision of gaming services associated with The Ritz Hotel. This operation has for many years been known as the "Ritz Club".
4.4 Over the years, since at least 1990, substantial sums have been expended in the promotion and marketing of the Ritz Club in the UK and internationally.
4.5 The Complainant Ellerman Investments Limited is the proprietor of a large portfolio of registered trademarks incorporating the marks, THE RITZ CLUB, RITZ and RITZ CASINO. Included in these are the mark "RITZ" registration no. 1509163 for the UK in class 41, gaming services and "RITZ" registration no. 7892 for Jersey, class 41 for gaming services, THE RITZ CLUB registration no. 2206186, in the UK for class 41 gaming services, and registration no. 7890 in Jersey for class 41 gaming services, and "THE RITZ CLUB and device" registration no. 2206189 in the UK for class 41, gaming services.
4.6 The flagship Ritz Club has, for many years, operated out of the former ballroom of the Ritz Hotel in London, but moved to St. James Street in 1998, where it continues to operate. In addition, the Ritz Club has sponsored numerous sporting events and charity events worldwide including events in the UK, Malaysia, Singapore, Hong Kong, Abu Dhabi, and Cyprus, and through a subsidiary runs casinos on board a number of cruise ships. These casinos hold "Ritz Club" nights on the ships where the casinos on board are decorated to look like the Ritz Club in London.
4.7 The operation of the Ritz Club enterprises as above create a turnover of millions of pounds annually.
4.8 The first Complainant has many other pending trademark registrations for the trademarks Ritz, the Ritz Club and Ritz Casino for gaming services throughout the world and is planning to sponsor website for gaming services, which one of the likely Domain Names is <theritzclub.com>, which is already owned by the first Complainant.
5.1 The Complainant says that the Domain Name <ritzclub.com> is identical to its registered trademark THE RITZ CLUB and confusingly similar to its registered trademark RITZ CASINO for gaming services because it incorporates the "primary, distinctive element" of the first Complainant's trade marks, i.e. the word "Ritz".
5.2 The Complainant says that the Respondent has no rights or legitimate interests in the Domain Name. In support of this allegation, it has demonstrated that it conducted a WISS trademark search world-wide on the trademark RITZ on September 5, 2001, and at that date, subject to the accuracy and currency of the search, no trademarks in the name of the Respondent were identified. It also employs a trademark watching service on the trademark RITZ and it has not received any notices of any applications for the trademark RITZ or RITZ CLUB by the Respondent since September 5, 2001 or ever. As far as the Complainants are aware, the Respondent has no trademark rights in the mark RITZ CLUB.
5.3 The Complainants add that as they are in the process of setting up a web-site to provide, via a related company, gaming services online over the Internet, the Respondent's registration and use of the Domain Name for gaming services will inevitably cause confusion in the minds of the Second Complainant's existing customers and potential customers for gaming services, who will think that the Respondent's gaming services originate from the owner or licensee of the registered marks in which both Complainants have an interest.
5.4 The Complainants submit that the Respondent should be considered as having no rights or legitimate interests in respect of the Domain Name.
(a) The web site at <ritzclub.com> was originally inaccessible, and although the Respondent has not been actively trading from the website under the Domain Name, inactivity can constitute use of the Domain Name in bad faith.
(b) The Respondent has demanded an extortionate sum which greatly exceeds his actual expenses and seeking payment which exceeds out of pocket expenses for the transfer of a Domain Name can in itself constitute commercial use of the Domain Name.
(c) The Complainants, through an agent, contacted the Respondent about this matter, after which the website became active in approximately November 2001, and shortly after began to carry a notice which states that the web site hopes to be online by Christmas 2001. This, suggest the Complainants, shows that the Respondent was trying to put pressure on the Complainants to agree to his demands for money.
(a) The Complainants approached the Respondent via a private investigator, first by email and then through a follow up telephone call. The Respondent�s response by an email dated August 23, 2001, was that he is "in the 'on-line gaming' space for the last 2� years and YES I plan to develop all my domains!". The Respondent also made it clear that the Domain Name was for sale but only if "an offer [he] cannot refuse" was made. The Complainants say that it is clear from this email that the Respondent intends to use the Domain Name for the provision of gaming services, which constitutes an infringement or a threatened infringement of the registered Ritz Trade Marks.
(b) Upon being requested to state his asking price for the Domain Name, the Respondent replied by e-mail dated August 27, 2001, that the Domain Name "is a very well known phrase in the Gaming space with excellent brand awareness". This, say the Complainants, can only be a reference to the Complainants� reputation for gaming services, since (as far the Complainants are aware) no one else in the world provides gaming services under the name "Ritz Club".
(c) The Respondent initially demanded the sum of US$290,000 from the Complainants� agent to purchase the Domain Name which say the Complainants, is clearly an extortionate amount and, given that the Respondent has not been providing gaming services, this huge value attributed to the name can only result from the value and goodwill built up by the Complainants through their use of the Ritz Club trademark.
(d) The Complainants' authorized representatives wrote to the Respondent on September 10, 2001 setting out the Complainants' rights in the Ritz Trade Marks and made an offer, in the interests of avoiding unnecessary legal costs, to pay the Respondent's reasonable out of pocket costs.
(e) Following further correspondence with the Complainants' solicitors, the Respondent subsequently demanded US$145,500 for the transfer of the Domain Name in an email dated October 3, 2001, which the Complainants say is evidence of the bad faith of the Respondent in registering the Domain Name pursuant to paragraph 4(b)(i) of the UDRP.
The Respondent intends to attract Internet users to the website by creating confusion with the Complainants� marks.
(a) Prior to the Complainants contacting the Respondent, the Respondent was aware of the brand RITZ for gaming services and the reputation associated with it, which is owned by the Complainants.
(b) Since being contacted by the Complainants, the Respondent has been made aware of the full extent of the Complainants' rights in the Domain Name.
(c) The Respondent has said in correspondence that he intends to use the Domain Name to provide gaming services. The web site at the Domain Name states that it will be active by Christmas 2001.
(d) The Respondent, say the Complainants, therefore deliberately intends to create a likelihood of confusion with the registered trademarks for gaming services.
(e) As a result of the world-wide fame of the Ritz Club, there is no legitimate user of the RITZ CLUB mark for gaming services other than the Complainants. The Respondent was aware of the reputation associated with the Ritz Club mark from before the time that he was first approached on behalf of the Complainants. Where a Respondent knows, or should have known of the Complainants� use and registration of the trademark before registering the Domain Name, this constitutes bad faith.
(f) The Respondent has not given any explanation to the Complainants why it chose the Domain Name. Where the trade mark incorporated in the disputed Domain Name is extremely well known, intent to use in bad faith may be inferred where the Respondent has shown no good reason for choosing that particular Domain Name. The only possible reason for the Respondent to have registered the Domain Name is to benefit from the goodwill and reputation associated with the Complainants� "Ritz Club" mark. This is evidence of the bad faith of the Respondent in registering the Domain Name.
(g) The registration of the Domain Name was therefore made in bad faith pursuant to paragraph 4(b)(iv) of the UDRP.
(h) The Complainants have plans to launch a website for gaming services, of which one of the likely Domain Names is <theritzclub.com> (already owned by the first Complainant) and its plans will be seriously affected by the Respondent's plans for a website at the Domain Name. The customers of the second Complainant are bound to assume that the gaming services offered by the Respondent are related to the second Complainant and if the Respondent's services are not of the highest quality and probity, the reputation and goodwill associated with the Ritz Club may be adversely affected. Further damage will occur if the security of the Respondent's website does not satisfy the stringent requirements that the customers of the second Complainant have come to expect from gaming services originating from the second Complainant.
5.6 The Respondent has not filed a Response to the Complaint, even though it was given additional time by this Panel to do so until Friday, March 8, 2002. Under para. 5(e) of the Rules, it is provided that if a Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the Complaint. As no exceptional circumstances have been brought to the Panel�s attention, it proceeds to make the findings below on the basis of the material contained in the Complaint.
5.7 The Panel has not received any other requests from Complainant or Respondent regarding further submissions, beyond the Complaint, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the Parties.
(i) The Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights.
6.3 This Panel accepts that the first Complainant, namely Ellerman Investments Limited, is the holder of the registration for the marks referred to above.
6.4 The only difference between the Domain Name, <ritzclub.com> and the mark THE RITZ CLUB in which first Complainant has rights, as above, is the deletion of the word "the" in the Domain Name. The absence of the article "the" does not lessen the virtually identical and confusingly similar nature of a Domain Name: The Chip Merchant, Inc. v. Blue Star Electronics, d/b/a Memory World, WIPO Case No. D2000-0474.
6.5 "Essential" or "virtual" identity is sufficient for the purposes of the Policy: The Stanley Works and Stanley Logistics Inc. v. Cam Creek Co. Inc., WIPO Case No. D2000-0113, Nokia Corp. v. Nokiagirls.com a.k.a IBCC, WIPO Case No. D2000-0102, and America Online, Inc. v. Anson Chan, WIPO Case No. D2001-0004; Disney Enterprises, Inc. v. John Zuccarini, d/b/a Cupcake City and Cupcake Patrol, WIPO Case No. D2001-0489; Komatsu Ltd. and Komatsu America International Company v. RKWeb Ltd., WIPO Case No. D2000-0995; America Online Inc. v. Andy Hind, WIPO Case No. D2001-0642; The Toronto-Dominion Bank v. Boris Karpachev, WIPO Case No. D2000-1571.
(ii) Respondent has no rights or legitimate interests in respect of the domain name.
"When you receive a complaint, you should refer to Paragraph 5 of the Rules of Procedure in determining how your response should be prepared. Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii). . . ."
"In short, it is not sufficient for a respondent to say, �Everyone knows me by x name,� or �I have witnesses who would say . . �. Evidence in the form of documents or third party declarations should be furnished in support of such assertions. A panel is not required to blindly accept assertions offered by a respondent, any more than it is required to accept unsupported assertions offered by a complainant. It is especially important under this procedure to test respondent�s assertions for evidentiary support and credibility, since normally the complainant has no opportunity to counter the respondent's assertions, while the respondent does have the opportunity to counter those of the complainant."
That Panel went so far as to say that failure of a Respondent to come forward with such evidence is tantamount to admitting the truth of Complainant�s assertions in this regard. As for whether it is sufficient for the Complainant to make a prima facie case, it has been held that where the domain name is Complainant�s well-known name and there is evidence the Complainant had not granted the Respondent a license to use the Complainant�s name, this will suffice. See Newman/Haas Racing v. Virtual Agents, Inc. WIPO Case No. D2000-1688. Where a Respondent asserts no rights or legitimate interests in the disputed Domain Name, and the Panel cannot presently conceive of any legally sound basis on which any such assertion might be made, despite the lack of any further statements made by the Complainant other than an assertion that the Respondent has no rights or legitimate interests in the disputed Domain Name, can still result in a finding for the Complainant on this element. See America Online, Inc. v. Kandl Co. Ltd., WIPO Case No. D2000-1695.
Another Panel has held that the correct approach is for the Complainant to make the allegation and put forward what it can in support (e.g. it has rights to the name, the Respondent has no rights to the name of which it is aware, it has not given any permission to the Respondent). Unless the allegation is manifestly misconceived, the Respondent has a case to answer and that is where paragraph 4(c) of the Policy comes in. If the Respondent then fails to demonstrate his rights or legitimate interests in respect of the Domain Name, the complaint succeeds under this head. See Margaret Drabble v. Old Barn Studios Ltd., WIPO Case No. D2001-0209.
6.7 This Panel finds that the first Complainant in this case has brought itself within the above tests and therefore shown that the Respondent has no rights or legitimate interests in the Domain Name.
(iii) The Respondent has registered and is using the Domain Name in bad faith.
6.8 As for a significant period of time the website <ritzclub.com> was inactive, the Complainants rely on Telstra Corporation v. Nuclear Marshmallows, WIPO Case No. D2000-0003 where the Panel stated: "the concept of a domain name being used in bad faith is not limited to positive action; inaction is within the concepts." The Complainants also rely on Mary-Lynn Mondich, et al v. Shane Brown, WIPO Case No. D2000-0004 where the Panel said: "it is possible to infer from this failure of use that the domain name was registered without a bona fide intent to make good faith use". Respondent had owned the Domain Name since January 1999, over two years, which allowed the Panel to find a lack of intention to use the Domain Name in good faith. The Panel in the Telstra case went on to make it clear that in addition to the inactivity there must also be an intention to sell, rent or transfer the registration, that is a pattern of conduct preventing a trade mark owner�s use of the registration, for paragraph 4(b)(ii); with the primary purpose of disrupting the business of a competitor, for paragraph 4(b)(iii). The question of what circumstances of inaction (passive holding) can constitute a Domain Name being used in bad faith cannot be answered in the abstract, but only in respect of the particular facts of a specific case. Therefore, the Administrative Panel must give close attention to all the circumstances of the Respondent�s behaviour. I have done this and find that there has been sufficient behaviour shown in this case to make a finding of bad faith in respect of the Respondent. In particular, reference is made to the clear knowledge demonstrated by the Respondent of the Complainants� reputation for gaming services shown from the Respondent�s comment that his Domain Name "is a very well known phrase in the Gaming space with excellent brand awareness". Also, the initial demand for the sum of US $290,000 for the Domain Name is clearly an extortionate amount and leads to a conclusion that the Respondent knew or should have known of the Complainants� use and registration of the trademark before registering the Domain Name. This constitutes bad faith. See SportSoft Golf Inc v Hale Irwin's Golfer's Passport, NAF Case FA94956; E&J Gallo Winery v Oak Investment Group, WIPO Case No. D2000-1213; Toyota Motor Sales USA v. Rafi Hamid dba ABC Automobile Buyer, WIPO Case No. D2001-0032; Vivendi Universal v. Mr. Jay David Sallen and GO247.COM, INC., WIPO Case No. D2001-1121.
6.9 Given the evidence put forward by the Complainants, and the lack of any Response from the Respondent, the Panel finds that the Domain Name <ritzclub.com> has been registered and is being used in bad faith.
(c) the Complainants have established that the Domain Name has been registered, and is being used in bad faith.
7.2 The ruling of this Panel is that the registration of the Domain Name <ritzclub.com> be transferred to the Complainant Ellerman Investments Limited.

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ACURA PHARMACEUTICALS: Continues to Defend Securities Suit in Ill.
ARCTIC GLACIER: To Settle Conspiracy Class Action for C$2 Mil.
DENTSPLY INTERNATIONAL: Cavitron(R) Suit Still Pending in Calif.
TARGET CORP: Removes "Brown" Song-Beverly Suit to N.D. Calif.
private communications, a class action claims in Federal Court.
plaintiffs' electronic communications from anywhere in the world."
that can be and were routinely collected, transmitted and stored.
Aaron's RTO computers," the complaint states.
computers," and "cannot be uninstalled or easily detected,"
computer be returned to Aaron's."
taken remotely using the PC Rental Agent," the complaint states.
not supposed to disclose that Aaron's had the photograph."
asking for a user's name, address and telephone number.
customers," according to the complaint.
Fishbein, Sedran & Berman in Philadelphia.
They believe the class exceeds 50,000 people or entities.
has more than 1,500 stores in the U.S. and Canada.
G. Bryan Ulmer, III, Esq.
Mel C. Orchard, III, Esq.
HERMAN, HERMAN, KATZ & COTLAR, L.L.P.
and Exchange Commission for the quarter ended March 31, 2011.
professional vector graphic illustration software."
plotted by the graphic designer.
architecture, furniture and textile design, and other areas.
the use of their FreeHand-created designs, the illustrators say.
In 2004, before Adobe acquired FreeHand, Illustrator cost $399.
Adobe released a new version of Illustrator, the class says.
without a full array of graphics software," the complaint states.
Commission for the quarterly period ended March 31, 2011.
purchasers of packaged ice for C$2 million.
direct purchaser actions commenced against Arctic Glacier and U.S.
peer Reddy Ice Holdings in Ontario and in Alberta.
keep retail prices higher than market levels.
voluntarily by the plaintiffs and its counsel in its entirety.
without merit," said Eberhard Schoneburg, the Company's CEO.
customers in rural Yukon communities.
Territories, with about 20,000 customers.
However, there is no 911 emergency operator service in the N.W.T.
the emergency service in its contract with cellphone customers.
lawyers want, or before a judge alone, which Bell Mobility wants.
soon as he can on all the issues brought up at the May 3 hearing.
full consideration paid by plaintiffs for natural gas.
their natural gas price reporting activities.
Breckenridge Brewery of Colorado, LLC and BBD Acquisition Co. v.
dismissed from the Arandell Michigan case.
two consolidated cases remain pending only against CMS ERM.
their complaint to add a federal Sherman Antitrust Act claim.
Commission for the quarter ended March 31, 2011.
the Southern District of New York. Specifically, Proesel, et al.
and post-judgment interest, injunctive relief and attorneys' fees.
unable to reach a settlement.
quarter ended March 31, 2011.
Agreement and CryoLife's tender offer for shares of Cardiogenesis.
milk processor in the country.
way, in her opinion, for the $30 million settlement to go forward.
sole source of objections to the Dean Settlement."
Reiss' decision on May 5.
Exchange Commission for the quarterly period ended March 31, 2011.
decertification of the class and this motion was granted.
remanded to and is pending in the San Francisco County Court.
quarterly period ended March 31, 2011.
it cannot assure the delivery of potable or sterile water.
other motions, including a motion to dismiss the claims of Drs.
complaint in which they named the corporate practices of Drs.
moved to dismiss this complaint.
interest, injunctive relief and attorney's fees.
businesses through its core operations.
Exchange Act of 1934 and Rule 10b-5 promulgated thereunder.
mailing address and telephone number.
by or affiliated with Gerova's top officers.
critical of Gerova, labeling it as "a game of smoke and mirrors,"
nearly 4%, to close at $26.98.
sessions, to close at $6.39 on February 16, 2011.
announced its intention to delist from the NYSE.
multimillion-dollar damages awards on behalf of class members.
grappling over how to make up a $1.3 billion deficit.
bills and making cuts to state departments.
The exact amount the state will owe has not yet been determined.
figure will likely be in the tens of millions.
law firm Alston Hunt Floyd & Ing, wrote in an e-mail on April 29.
"The damages are approximately $54 million."
could be looking at a final penalty in excess of $70 million.
what the order looks like and make a determination."
that it's "still in the works."
that the DOE had "cheated" her and owed her years of back pay.
Hillenbrand, Inc.), and three national funeral home businesses.
a matter of law, plus reasonable attorney's fees and costs.
casket purchases by the purported class members.
8th and 14th Amendments of the U.S. Constitution.
prisoners in Illinois are also protected."
they could not hear the announcements to leave their cells.
Miller, Managing Attorney at Equip for Equality.
them, placing them in constant danger of exploitation.
past violations of federal law and to prevent future violations.
Holmes et al. v. Godinez et al.
physical and mental disabilities in Illinois.
Illinois' prisons with issues related to their confinement.
hard of hearing individuals in the USA.
and antitrust class litigation. Founded by the late Abraham L.
Pomerantz Firm pioneered the field of securities class actions.
Exchange Commission for the quarterly period ended March 24, 2011.
employees' time entries which violates the IMWL and the FLSA.
lawsuit for approximately $2,600 in the coming months.
complaint and the execution of a settlement agreement and release.
approval is anticipated in the coming months.
claim in a group, or class-action, suit.
(individually and on behalf of all others similarly situated) v.
Amended Complaint on October 4, 2010.
No updates were provided in the Company's latest SEC filing.
available at QVC and internationally.
whom the plaintiffs sought no recovery.
approved by the Delaware Court of Chancery on September 16, 2008.
as a reduction to Other operating (income) expenses, net.
Company's April 28, 2011, Form 10-Q filing with the U.S.
The settlements in all states have received final court approval.
value of vouchers that Microsoft Corp. may issue varies by state.
number of class members who make claims and are issued vouchers.
schools that are issued and redeem vouchers. Microsoft Corp.
vouchers, legal fees, and administrative expenses.
the plaintiffs will seek review by the Canadian Supreme Court.
The other two actions have been stayed.
operation was found in their residence, says the report.
director of the BCCLA. "The process is fundamentally unfair."
not have grow operations in their homes.
basement of his Mission home.
Vancouver lawyer Alexander Markham-Zantvoort, Esq.
talk about the proposed class-action.
learned of the violation enforcement by Mission, Mr. Vonn said.
violated the bylaw but were innocent."
"It's the imaginary grow-op bylaw," Mr. Vonn said.
"These are very new programs and new areas of law," Mr. Vonn said.
"But the damage has already been done," he said.
some have even been forced to sell their homes, he said.
the quarter ended March 29, 2011.
defend itself from these claims vigorously.
A copy of the Complaint in Savett v. Sealy Corporation, Case No.
has agreed to settle a class action lawsuit.
in federal court on May 3, 2011.
Mr. Kivisto and the other individuals will pay $22.8 million.
will turn over $5.2 million dollars' worth of stock.
started to take hold on Wall Street.
Mr. Kivisto was eventually fired and his energy empire was gone.
that all the claims against them are without merit.
SemGroup LP, meanwhile, emerged from bankruptcy in December.
Partners and has a separate management team.
no sooner than 90 days from May 3.
v. Sony Corporation of America, et al., Case No. 11-cv-02206 (N.D.
most serious consumer data security breaches in Internet history."
Plaintiff Frank Turano resides in Staten Island, New York.
account to buy and pay for products and services from Sony.
Avenue, in New York, New York.
corporation with its principal place of business in New York.
Service to try to identify the attackers.
recruiting and consulting firm Robert Half International.
compromised accounts and to let it know he's asking the U.S.
and business it will no doubt see.
representing a 21-year-old Ontario native as plaintiff.
fast to competitors as it did to hackers.
Greenville, Ill. and to unseal documents in the case.
County with discovery proceedings despite a series of disputes.
by a Chicago public relations firm.
The judge also canceled a May 6 hearing.
have been certified to date.
Discovery has been proceeding in the federal case.
The environmental groups filed to intervene in the case March 31.
had been designated as privileged.
mandates Syngenta state why the documents should stay sealed.
That order was entered April 19.
Syngenta disputes the ELPC/PRN's right to intercede in the suit.
groups' motion to intervene was filed.
It argues the groups haven't made their stake in the issue clear.
for seeking intervention," Syngenta argues.
Syngenta points to the timing of the intervention motion.
Greenville motion to unseal certain documents.
"These 'members,' however, are really officials of ELPC and PRN,"
Ms. Collins is named as the executive director the PRN.
has any interest in this litigation."
documents, as recognized in the Court's Order to Show Cause."
It also seeks to clear up what it calls Syngenta's "meritless"
allegations about its role in the suit.
Magistrate Judge Frazier's Orders is absurd."
pollution they claim is caused by atrazine and other pesticides.
Frazier would enter the order to show cause when he did.
same day they moved to intervene because the Court's Order . . .
The federal case is case number 10-cv-188-JPG-PMF.
(Calif. Super. Ct., Alameda Cty.), was filed on March 17, 2011.
California and the County of Alameda.
Attorney Christopher J. Gray of the Law Office of Christopher J.
having conducted due diligence into Madoff's investment strategy.
participating in the class action.
(vii) Broad Market XL Holdings Limited.
(viii) Tremont Strategic Insurance Fund, L.P.
should their individual action or proceeding prove unsuccessful.
address, address, fax number, or telephone number below.
CONTACT: Law Office of Christopher J. Gray, P.C.
quarterly period ended March 25, 2011.
pay of their employees and entering into "No Solicitation"
employment practices of Adobe Systems Inc. (ADBE), Apple Inc.
(AAPL), Google Inc. (GOOG), Intel Corporation (INTC), Intuit Inc.
(INTU), Lucasfilm Ltd., and Pixar.
cap pay for skilled employees."
employees, and must take responsibility for their misconduct."
prospective employees at the initial offer.
all employees who were harmed by defendants' unlawful agreements.
There is no charge or obligation for our review of your claim.
http://www.lieffcabraser.com-- is a plaintiffs' law firm.
Energy and Defense -- fail to address human-caused global warming.
A copy of the Complaint in L., et al. v. Jackson, et al., Case No.
their great-great grandfather settled in more than 200 years ago.
1993, the year of the last 100-year flood.
farm and build a house there," Mary Beth Lee said.
river of water," she added.
scores of farms in the fertile floodway.
But what could prove to be a lengthy legal battle against the U.S.
in the spillway flooded out by the levee's breach.
May 3 included 25 claimants, seeks class-action status.
save the lives and homes of others up and down the river,"
does not act unless it is forced to do so.
want to help," Mr. Ponder said.
them to breach the levee.
Corps Spokesman Jim Pogue could not be reached for comment.
will require state ID for workers.
other defendant is Utah Attorney General Mark Shurtleff.
youth group), three named individuals and three Does.
states are being forced to take up the charge."
on immigration-related grounds different from federal standards.
offenses must prove their citizenship.
identity documents or face interrogation and detention.
significantly harm Utahans, particularly Utahans of color.
approved by the federal government."
de facto state alien registration scheme.
scheduled to effect in 2012.
indeed to supplant the federal government," the complaint states.
teen-age daughters and has "built her life in Utah."
await a decision on her visa application.
A copy of the Complaint in Utah Coalition of La Raza, et al. v.
AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION, INC.
post-September 11 program to prevent terrorist attacks.
the United States Court of Appeals for the Ninth Circuit.
Felisilda, Noemi Irene A. Adala, Rousel Elaine Fernandez, Joy A.
Frauline Abangan and Peter A. Chapman, Editors.
Copyright 2011. All rights reserved. ISSN 1525-2272.

matches: v. v. v. v. v. v. v.


The impending bankruptcy of a retailer is one of the most stressful experiences that a supplier may face. The supplier is confronted not only with the potential loss of a major customer, but also with the possibility of significant financial losses on account of unpaid accounts receivable. A supplier often finds itself scrambling to mitigate its exposure. The logistics around this can be confusing. For instance, does a supplier have the right to suspend shipments of goods due under a contract if it believes the retailer may be unable to pay for those goods? Likewise, can a supplier stop shipments of goods already in transit to the retailer, but which have not yet been delivered? And if the goods are delivered without payment, can the supplier somehow recover those goods—or the value of those goods—if the retailer ultimately files for bankruptcy?
Fortunately, many states have adopted provisions of the Uniform Commercial Code (UCC) that provide options to suppliers dealing with these complex issues. Two of these provisions are particularly useful to suppliers when faced with the potential bankruptcy of a significant customer: the right to demand adequate assurance from the distressed retailer (UCC Section 2-609) and the right to withhold delivery due to insolvency (UCC Section 2-702). Additionally, Sections 546(c), 503(b)(9) and 553(a) of the Bankruptcy Code may also afford additional rights and remedies if a retailer does ultimately file for bankruptcy. While these statutes do not completely immunize suppliers from risk, they do afford suppliers with tools which, if exercised promptly and correctly, can go a long way in mitigating financial losses.
Upon learning of a retailer’s financial distress, the first step that any supplier should take is to demand adequate assurance of performance under the parties’ existing contract, and to suspend performance of its contractual obligations until such assurance is received. UCC Section 2-609 permits a seller to suspend performance due under a contract temporarily where the seller has an objective belief that the buyer cannot fulfill its contractual obligations. Specifically, UCC Section 2 609(1) provides that “[w]hen reasonable grounds for insecurity arise with respect to . . . performance [by the buyer] . . . the [supplier] may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return.” If a retailer then fails to provide such assurance “within a reasonable time not exceeding thirty days,” the retailer is deemed to be in “repudiation of the contract,” such that the supplier is no longer obligated to perform. UCC Section 2-609(4).
Importantly, a supplier can demand adequate assurance even where it is uncertain whether the retailer will ultimately file for bankruptcy; only a “reasonable grounds for insecurity” is necessary. This standard is a flexible one, as “what constitutes reasonable grounds for insecurity . . . is determined according to commercial standards.” UCC Section 2-609(2). That said, “[t]o find a reasonable ground of insecurity, ‘there must be an objective factual basis for the insecurity, rather than a purely subjective fear that the party will not perform.’” Koursa, Inc. v. Manroland, Inc., 971 F. Supp. 2d 765, 789 (N.D. Ill. 2013) (quoting Puget Sound Energy, Inc. v. Pac. Gas & Elec. Co., 271 B.R. 626, 640 (N.D. Cal. 2002)). Thus, while the specific events that give rise to “reasonable grounds for insecurity” may vary from industry to industry, at a minimum, a supplier’s right to demand adequate assurance may be appropriate when a supplier has actual or market-based knowledge that a retailer is in significant financial distress.
To invoke UCC Section 2-609, the supplier must make the demand for adequate assurance in writing. UCC Section 2-609(1). While this written demand need not be lengthy, it must be sufficiently clear to ensure that “all parties are aware that, absent assurances, the demanding party will withhold performance.” Koursa, Inc., 971 F. Supp. at 792. At least one court has held that “[t]o invoke UCC Section 2-609, a party’s written communication must ‘mention 2-609 of the code or demand assurances.’” Id. (quoting Canteen Corp. v. Former Foods, Inc., 238 Ill. App. 3d 167 (1992)). Thus, when making a demand for adequate assurance to a retailer, the supplier should make its demand in writing and explicitly invoke UCC Section 2-609 (or its state law equivalent).
Once a concerned supplier makes a proper demand for adequate assurance, UCC Section 2-609(1) permits the supplier to “suspend any performance for which he has not already received the agreed return.” In other words, the supplier is not required to ship any additional goods to the retailer while its demand remains unanswered, nor must the supplier abide by any other contractual obligation in the interim. This is true even if the retailer makes a partial payment on outstanding invoices: Section 2-609(3) explicitly provides that “[a]cceptance of any improper delivery or payment does not prejudice the aggrieved party’s right to demand adequate assurance of future performance.” The ability to suspend performance pending receipt of adequate assurance from a distressed retailer thus provides a supplier with the ability to be proactive when it is concerned its counterparty may be unable to pay for goods delivered.
Finally, if a retailer, “[a]fter receipt of a justified demand” fails to provide “within a reasonable time not exceeding thirty days such assurance of due performance as is adequate under the circumstances of the particular case,” the retailer is deemed to have repudiated the contract. UCC Section 2-609(4)(1); see also Norcon Power Partners, L.P. v. Niagara Mohawk Power Corp., 92 N.Y.2d 458, 464 (N.Y. 1998) (explaining that “[w]hen adequate assurance is not forthcoming, repudiation is deemed confirmed, and the nonbreaching party is allowed to take reasonable actions as though a repudiation had occurred”). Importantly, courts have recognized that this provision “does not automatically mean that [the buyer] ha[s] 30 days in which to respond.” Hitachi Zosen Clearing, Inc. v. Liberty Mut. Ins. Co., No. 92 C 5363, 1996 WL 388432, at *7 (N.D. Ill. July 1996). To the contrary, considering all of the circumstances, courts have agreed that a buyer’s response can be required in “something less than 30 days.” Id. Accordingly, a supplier may be able to deem its contract with a distressed retailer rescinded altogether if the retailer is unable to provide adequate assurance within a relatively short period of time.
While a demand for adequate assurance allows a supplier to suspend performance of future shipments due under the contract, the supplier may also have shipments in transit to the retailer. For such goods, the supplier may consider issuing a “stop delivery” order to the appropriate common carrier(s) pursuant to UCC Section 2-702(1).
UCC Section 2-702(1) allows a seller to “stop delivery”—except for cash paid on or before delivery—when the seller “discovers the buyer to be insolvent.” In addition to requiring cash for future deliveries, UCC Section 2-702(1) provides that delivery need not to be resumed until an insolvent buyer has paid for all previously delivered goods.
(A) having generally ceased to pay debts in the ordinary course of business other than as a result of a bona fide dispute; (B) being unable to pay debts as they become due [known as “equitable insolvency”]; or (C) being insolvent within the meaning of the federal bankruptcy law [known as “balance sheet insolvency”].
Courts have recognized that “‘[b]alance sheet’ insolvency is undoubtedly more difficult to prove than equitable insolvency,” as the former imposes a “heavy burden” on a seller trying to prove that a buyer is insolvent. See, e.g., In re Storage Tech. Corp., 48 B.R. 862, 867 (Bankr. D. Colo. 1985). While case law is scarce on this topic, the UCC’s incorporation of both equitable and balance sheet insolvency into its definition of “insolvent” suggests that a supplier may be able to stop delivery under UCC Section 2-702 even where the distressed entity has not yet filed a bankruptcy petition, but the supplier otherwise has knowledge that the retailer cannot pay its debts.
If a retailer is, in fact, insolvent, UCC Section 702-1 entitles the supplier to stop shipment of any goods that are currently en route to the distressed entity. UCC Section 702-5 sets forth the procedures by which such a stoppage would occur. In order to stop delivery, a supplier must first “so notify the bailee by reasonable diligence to prevent the delivery of goods.” UCC Section 2-705(3)(a). Any stop delivery orders to carriers and bailees should (a) invoke UCC Section 2-702(1) and (b) reference any relevant provisions in agreements with those third parties.
“After such notification the bailee must hold and deliver the goods according to the directions of the seller.” UCC Section 2-705(3)(b). It should be noted, however, that when a stop shipment order is issued, “the seller is liable to the bailee for any ensuing charges or damages” that the supplier may incur due to complying with the request. Id. These charges or damages can be substantial, particularly if the bailee is transporting goods for other entities. Thus, a stop shipment order does not mitigate a supplier’s risk altogether, and a supplier should be sure to communicate with its bailees or carriers to assess the costs involved in stopping shipments. Nonetheless, a stop delivery order provides suppliers with a useful tool in preventing goods from reaching an insolvent entity.
Finally, even if goods are delivered to a retailer that subsequently declares bankruptcy, a supplier may have a right (1) to reclaim these goods pursuant to Section 546(c) of the Bankruptcy Code, (2) to assert an administrative expense claim for goods the retailer received within 20 days of the retailer’s bankruptcy filing pursuant to Section 503(b)(9) and/or (3) to assert a claim for mutual prepetition setoff.
Section 546(c)(1) provides that, with some limitations, “a seller of goods that has sold goods to the debtor, in the ordinary course of such seller’s business, [may] reclaim such goods if the debtor has received such goods while insolvent” within 45 days of the petition date. A demand for reclamation must be made “not later than 45 days after the receipt of such goods by the debtor, or not later than 20 days after the commencement of the [bankruptcy case], if the 45-day period expires after the commencement of the” bankruptcy proceeding. 11 U.S.C. § 546(c)(1)(A), (B). While the statue appears to afford broad relief, in practice its application is often limited. Many courts require that the retailer still possess any goods the supplier seeks to reclaim. And Section 546(c) specifically provides that reclamation rights are “subject to the prior rights of a holder of a security interest in such goods or the proceeds thereof,” such that if a retailer’s secured lenders have a floating lien on inventory, the lenders’ security interest will be senior to any reclamation rights a supplier may have. Thus, while Section 546(c) provides sellers with some protections, it does not eliminate altogether the risk associated with providing goods to distressed entities.
In addition to the rights afforded under Section 546(c) of the Bankruptcy Code, suppliers may also have remedies under Bankruptcy Code Sections 503(b)(9) and 553(a). Section 503(b)(9) provides creditors with an administrative expense claim for goods (not services) that a debtor receives in the 20 days before bankruptcy. Section 503(b)(9)—which is not dependent on a retailer’s continued possession of goods and which often results in a dollar for dollar recovery—is generally recognized as an alternative (and more desirable) remedy to reclamation rights. Additionally, Section 553(a) of the Bankruptcy Code preserves a creditors’ rights to offset mutual pre-bankruptcy debts under non-bankruptcy law. Offset claims are essentially secured claims and—like Section 503(b)(9) claims—often result in a dollar-for-dollar recovery.
When a supplier learns that a customer may be contemplating bankruptcy, it is well advised to explore options for mitigating losses. The rights afforded under the UCC and the Bankruptcy Code may provide suppliers meaningful mechanisms by which to do so. Because the mechanics for invoking these provisions can be complex, a supplier should always consult with counsel before taking any action. Doing so ensures that these rights are exercised correctly, and maximizes the supplier’s ability to mitigate losses.
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text:
Pope Francis, apostolic letter motu proprio by which some canons of the Code of Canon Law are modified De Concordia inter codices, 31 May 2016.
by which some norms of the Code of Canon Law are modified.
Concerned about the harmony between the Codes, we have observed some discrepancies between the norms found in the Code of Canon Law and those in the Code of Canons of the Eastern Churches.
For the two Codes contain common norms in part, but in part also have special and proper norms, which render both Codes autonomous. It is nevertheless fitting that these special norms fit together with each other appropriately. For discrepancies, if and to the extent that they exist, produce difficulties in pastoral practice, particularly when they govern relations between members belonging to the Latin Church and an Eastern Church.
This has happened particularly in our time, when, certainly because of the migration of peoples, it follows that many Eastern Christian faithful live in Latin regions. Not a few pastoral and juridical questions thus arise, which require adapted norms for their resolution. It must be remembered in a special way that the Eastern Christian faithful are bound to preserve their own rite wherever they are found (cf. CCEO can. 40 §3; Vatican II, decr. Orientalium Ecclesiarum, 6), and accordingly it belongs most of all to the competent ecclesiastical authority to take care that appropriate means are available for them to be able to fulfil this obligation themselves (cf. CCEO can. 193 §1; CIC can. 383 §§1-2; post-synodal ap. exhortation Pastores gregis, 72). A harmony of norms is doubtless a means which strongly assists in the growth of the venerable Eastern rites (cf. CCEO can. 39), so that Churches sui iuris may be able to exercise pastoral care more effectively.
We must nevertheless pay attention to the need of recognising the particular disciplinary marks of that region in which interecclesial relations take place. For in the West, which is Latin for the most part, it is fitting to preserve a proper balance between the preservation of the proper law of the Eastern minority and the respect to be displayed toward the historical canonical tradition of the Latin majority, so that unwarranted collisions and conflicts may be avoided, and the fruitful cooperation of all the Catholic communities living in that region may be encouraged.
There is another reason why the norms of the Code of Canon Law should be filled out with some explicit provisions similar to those contained in the Code of Canons of the Eastern Churches, namely, so that relations with Eastern non-Catholic Christians, whose number has increased at present in Latin territories, may be determined more carefully.
We must also consider that commentaries of canonists have observed that certain discrepancies are found between both Codes and they have almost unanimously shown what the principal questions are, and how these can be brought into harmony.
Thus the purpose of the norms which are introduced in this apostolic letter motu proprio is to reach a disciplinary harmony, which may indicate a sure road to be followed in the exercise of pastoral care in individual cases.
The Pontifical Council for Legislative Texts, through a commission of experts in Eastern and Latin canon law, examined those questions which seemed to require a more suitable legislative revision than others, and thus drafted a text which was sent to about thirty consultors throughout the world, to canonical experts, and to authorities in Latin ordinariates for Eastern Catholics. After receiving the resulting observations, a new text was approved by the plenary session of the Pontifical Council for Legislative Texts.
§1. Through the reception of baptism, the child of parents who belong to the Latin Church is enrolled in it, or, if one or the other does not belong to it, both parents have by mutual agreement chosen to have their offspring baptized in the Latin Church. If there is no mutual agreement, the child is enrolled in the Church sui iuris to which the father belongs.
§2. But if only one of the parents is Catholic, the child is enrolled in the Church to which the Catholic parent belongs.
§3. Anyone to be baptized who has completed the fourteenth year of age can freely choose to be baptised in the Latin Church or in another Church sui iuris; in that case, the person belongs to the Church which he or she has chosen.
3° before the completion of the fourteenth year of age, the children of those mentioned in nn. 1 and 2 as well as, in a mixed marriage, the children of the Catholic party who has legitimately transferred to another Church sui iuris; on completion of their fourteenth year, however, they can return to the Latin Church.
§2. The practice, however prolonged, of receiving the sacraments according to the rite of another Church sui iuris does not entail enrolment in that Church.
§3. Every transfer to another Church sui iuris takes effect at the moment a declaration is made before a local ordinary of the same Church or the proper pastor or a priest delegated by either of them and two witnesses, unless the rescript of the Apostolic See provides otherwise; this is to be noted in the baptismal register.
§2. In the baptismal register are also to be noted enrollment in a Church sui iuris or transfer to another Church, confirmation, and those things which pertain to the canonical status of the Christian faithful by reason of marriage, without prejudice to the prescript of canon 1133, of adoption, of reception of sacred orders, and of perpetual profession made in a religious institute. These notations are always to be noted on a baptismal certificate.
§1. 2° there must be a founded hope that the infant will be brought up in the Catholic religion, without prejudice to §3; if such hope is altogether lacking, the baptism is to be delayed according to the prescripts of particular law after the parents have been advised about the reason.
§3. Infants of non-Catholic Christians are licitly baptised if their parents or at least one of them or the person who legitimately takes their place request it and if it is physically or morally impossible for them to approach their own minister.
§3. Only a priest validly assists at a marriage between Eastern parties, or between a Latin party and an Eastern party, whether Catholic or non-Catholic.
Unless the local ordinary and pastor have been excommunicated, interdicted, or suspended from office or declared such through a sentence or decree, by virtue of their office and within the confines of their territory they assist validly at the marriages not only of their subjects but also, provided that at least one of them is enrolled in the Latin Church, of those who are not their subjects.
§1. As long as they hold office validly, the local ordinary and the pastor can delegate to priests and deacons the faculty, even a general one, of assisting at marriages within the limits of their territory, without prejudice to the prescript of can. 1108 §3.
§1. Where there is a lack of priests and deacons, the diocesan bishop can delegate lay persons to assist at marriages, with the previous favourable vote of the conference of bishops and after he has obtained the permission of the Holy See, without prejudice to the prescript of can. 1108 §3.
§3. In the circumstances mentioned in §1, nn. 1 and 2, the local ordinary can confer on any Catholic priest the faculty of blessing the marriage of the Christian faithful of Eastern Churches which do not have full communion with the Catholic Church, if they spontaneously seek it, and provided that nothing prevents the valid and licit celebration of the marriage. The priest himself, if it can be done prudently, is to inform the competent authority of the non-Catholic Church concerned.
§1. The prescripts of can. 1108 are to be observed for the form to be used in a mixed marriage. Nevertheless, if a Catholic party contracts marriage with a non-Catholic party of an Eastern rite, the canonical form of the celebration must be observed for liceity only; for validity, however, the assistance of a priest is required and the other requirements of the law are to be observed.
We order that whatsoever has been decreed by this our apostolic letter motu proprio be firm and established, anything else to the contrary notwithstanding, even worthy of special mention, and we decree that this be promulgated by publication in L’Osservatore Romano and thereafter printed in the official commentary Acta Apostolicae Sedis.
Given in Rome, at Saint Peter’s, on 31 May 2016, in the fourth year of our pontificate.
Pope Francis, apostolic letter motu proprio by which some canons of the Code of Canon Law are modified De Concordia inter codices, 31 May 2016, AAS, 108 (2016), 602-606; English translation by W. Becket Soule, 25 July 2017, with revisions by John A. Renken, 27 September 2016.

matches: §3 §1 §1 §2 §3 §2 §3 §2 §1 §3 §3 §3 §1 §3 §1 §3 §3 §1 §1


text:
Joan Lieberman with whom John Wall, Boston, Mass., were on brief for appellant.
Gary S. Katzmann, Asst. U.S. Atty., Boston, Mass., with whom Mark E. Robinson, Asst. U.S. Atty., and Robert S. Mueller, III, U.S. Atty., were on brief for appellee.
Appellant William Ferreira stands convicted of unarmed bank robbery of a federally insured bank, 18 U.S.C. Sec. 2113(a).1 The issues on appeal are (1) whether the district court erred in refusing to suppress, inter alia, two firearms, $1,958 in cash (including about $150 in "bait money"), and coin rolls seized from Ferreira after an allegedly unconstitutional "stop and frisk," (2) whether the testimony of an expert witness for the prosecution unfairly prejudiced Ferreira, and (3) whether the introduction of weapons in evidence was reversible error. We conclude that a reasonable view of the evidence supports the suppression ruling. But finding an abuse of discretion as to the third issue, we vacate the judgment of conviction and remand to the district court for a new trial.
Cassano knew that several bank robberies had been committed by residents of Charlestown, Massachusetts. While he lacked specific information that the robbers hailed from Charlestown, both Cassano and the officer accompanying him nevertheless decided to investigate. The officers arrived at Charlestown from 10 to 15 minutes after the crime. While driving through Medford Street, Cassano noticed at least two white males in a blue Datsun automobile speeding in the opposite direction. This piqued Cassano's curiosity. The officers chased the car as it fled into the Charlestown public housing project in Medford Street. Cassano testified that he saw, from a distance of 40-50 feet, one of three men exiting the car carrying "some sort of bundle covered by an orange jacket or sweater." The suspects did not obey orders to stop as they escaped into a building with some vacant apartments. The officers entered the building, and proceeded to the rooftop. From there, Cassano noticed that the blue Datsun had disappeared. The agents went back again to search the surroundings for abandoned evidence. This search was unsuccessful. The suspects were nowhere to be found at the time.
The following is the testimony as to what happened next.
Q. This individual comes out the door and what happens next?
A. We [Cassano and state police officer Frank LaSheen] stopped him. I told him, "Hold it. Who are you?" At that point I believe he said, "My name is Joe."4 At that instance the door opened again and I was distracted by the door opening again.
Q. The door to apartment 725?
Q. What happened when that door opened?
A. At that point this individual leaped down the stairs and I yelled at him to hold it. I knew there was an agent, a trooper down at the bottom or standing outside the building, and I yelled to him to stop him.
Q. Did he stop him?
As Ferreira ran past another agent, state police officer James O'Connor--who was standing in the parking lot of 50 Medford Street at that time--heard and recognized Cassano's command to stop Ferreira. O'Connor testified he then issued a similar order to Ferreira, but to no avail. O'Connor chased the suspect, finally stopping and frisking him. This stop and frisk produced the evidence appellant sought to suppress.
In a bench ruling, the district judge found that the agents' "prior information," coupled with the area's reputation for criminal activity, constitutionally justified the two detentions.
The fourth amendment guarantees against unreasonable searches and seizures of a person. There is a seizure "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1979) (Stewart, J., plurality op.). See United States v. Streifel, 781 F.2d 953, 960 (1st Cir.1986).
A fourth amendment "stop" is a temporary "seizure" which, because of the governmental interests in crime prevention, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and in crime resolution, United States v. Hensley, 469 U.S. 221, 228, 105 S.Ct. 675, 681, 83 L.Ed.2d 604 (1985), is valid even in the absence of probable cause. See United States v. Berryman, 717 F.2d 650, 660 (1st Cir.1983) (en banc), cert. denied, 465 U.S. 1100, 104 S.Ct. 1594, 80 L.Ed.2d 125 (1984); see also United States v. Quinn, 815 F.2d 153, 156 (1st Cir.1987) (stating that officers may make brief investigatory stops or seizures upon reasonable suspicion that a person may have committed, is committing, or is about to commit a crime).
whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.
United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985) (quoting Terry, 392 U.S. at 20, 88 S.Ct. at 1879).
The suppression issue in this case relates only to whether, considering the totality of the circumstances, the officers had reasonable suspicion of criminal activity for making the stop in the first place. See United States v. Cortez, 449 U.S. 411, 418-19, 101 S.Ct. 690, 695-96, 66 L.Ed.2d 621 (1981); United States v. Manchester, 711 F.2d 458, 461 (1st Cir.1983). While objective factors, such as general observations by the officer or an area's reputation for criminal activity can be considered in combination with specific facts about the crime, the objective factors standing alone are insufficient for a stop. See United States v. Trullo, 809 F.2d 108, 111 (1st Cir.1987). The key is whether the officers had a particularized suspicion of criminal activity. Cortez, 449 U.S. at 418, 101 S.Ct. at 695.
In Trullo, 809 F.2d at 111-12, we upheld a Terry stop on the basis of two brief conversations between the driver of a parked automobile and another man, which occurred in an area known for drug activity and prostitution. In this case, the inference of criminal behavior that reasonably can be drawn by an experienced officer from the evidence is stronger than in Trullo.
Ten to fifteen minutes after the robbery, armed with specific descriptions of the suspects, Cassano witnessed a speeding Datsun go by. He followed it and later saw one of three men flee into a partially abandoned building. One of the suspects was concealing an object with an orange jacket or sweater. The radio dispatcher had told Cassano that a bank robber was seen wearing such a jacket. Knowing the area's bad reputation, agent Cassano could, at this point, reasonably infer, based on his 13 years of experience, that a bank robbery suspect was hiding somewhere in the building. The fact that five minutes later agent Cassano saw Ferreira, who fit the description of one of the robbers, emerge from an apartment in the building provided the necessary "articulable" basis for reasonable suspicion justifying the Terry-Hensley stop. Cf. United States v. Jones, 619 F.2d 494, 496, 498 (5th Cir.1980) (incomplete and stale description of a bank robbery suspect did not suffice).
Appellant claims that Cassano initiated a second stop after Ferreira fled the scene. This allegedly happened by Cassano's yell, "stop him." Ferreira submits, and we agree, that flight from an unidentified police officer, as here, is ambiguous conduct that could be interpreted as a natural reaction to circumstances and not as a reflection upon defendant's guilt. United States v. Amuny, 767 F.2d 1113, 1124-25 (5th Cir.1985); Jones, 619 F.2d at 498; cf. United States v. Bowles, 625 F.2d 526, 535 n. 12 (5th Cir.1980) (flight has been factored into the reasonable suspicion calculus in cases in which the authority of the pursuer is not "readily ascertainable."); United States v. Pope, 561 F.2d 663, 669 (6th Cir.1977) (flight from a clearly identified agent may warrant an investigatory stop).
In Jones, a suspect's flight from an unidentified police officer patrolling an area in an unmarked car triggered a stop. The court found that the police had no facts on which to base a reasonable suspicion other than the inconclusive evidence of flight. Accordingly, the stop was illegal. Not so in this case. As stated earlier, Cassano stopped Ferreira when he restrained appellant's freedom to walk away, not when he yelled to him. See ante at pp. 3-4. Unlike Jones, Ferreira's stop was justified by reasonable suspicion based on articulable facts irrespective of Ferreira's flight.
O'Connor testified that Cassano's order to stop Ferreira was the principal basis for conducting the stop and frisk. In Hensley, 105 S.Ct. at 682-83, the Court held that, "if a flyer or bulletin has been issued on the basis of articulable facts supporting a reasonable suspicion that the wanted person has committed an offense ...," then a second officer--without having personal knowledge of such facts--can rely on the "flyer" as a basis for a stop. See Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306 (1971).
Cassano's yell to Ferreira had the same effect as the "wanted flyer" in Hensley of transmitting reasonable suspicion for making a stop. Id. 105 S.Ct. at 683. Thus, reliance by O'Connor on Cassano's order justified the second detention. We hold that Ferreira's fourth amendment rights were not violated. We turn next to the evidentiary issues.
The district court conditionally admitted the testimony of William J. Bodziak. The government introduced his testimony to prove identification. It is claimed that one of the Nike sneakers Ferreira was wearing at the time of his arrest had left a shoeprint impression over the teller's counter at the time of the robbery. Because the expert Bodziak testified that it was "possible" but "not probable" that Ferreira's Nike sneakers left that impression, the court excluded his testimony as lacking probative value. Fed.R.Evid. 401.
... the evidence concerning this shoeprint does not rise to the level of certainty that you need to have in criminal cases in that the expert is not able to testify that the print was more probably made by this shoe than any other. Accordingly, I'm going to strike all that testimony and instruct you to disregard it; that is, the testimony of Mr. Bodziak. You can consider Mr. Rutherford's testimony that he found this shoeprint on the counter, and you may be able to draw inferences at some point from that, but the testimony of Mr. Bodziak and Exhibits 21-A and 21-B are stricken, and you will disregard that testimony and those exhibits in arriving at your verdict in this case.
The government introduced at trial real and testimonial evidence of two weapons seized from appellant upon his arrest, in spite of the fact that Ferreira had not been indicted for armed bank robbery. The asserted purposes were to establish Ferreira's identity as one of the bank robbers and to show that he resorted to intimidation during the robbery. Over appellant's well-preserved objections, the district court admitted the weapons, stating that there was "enough association historically between the carrying of guns and the robbing of banks to make this sufficiently relevant." The scope of review is whether the district court abused its discretion. United States v. Tierney, 760 F.2d 382, 387 (1st Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 131, 88 L.Ed.2d 108 (1985).
We are faced with conflicting views from the courts of appeals on whether evidence of firearms is admissible in an unarmed bank robbery case. The issue is of first impression in this circuit.
In United States v. Vosper, 493 F.2d 433, 435-36 (5th Cir.1974), defendant, as here, was charged with intimidating a teller with gestures suggesting the availability of a gun. Without a specific showing that the defendant carried a gun at the robbery, the Fifth Circuit held that testimony showing possession or access to a gun was relevant to the issue of intimidation.8 The Vosper court drew an analogy to United States v. Ravich, 421 F.2d 1196, 1204 (2d Cir.), cert. denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66 (1970), where the court upheld the admission of a defendant's possession upon arrest of guns and ammunition other than those used in the armed bank robbery.
In United States v. Laker, 427 F.2d 189, 190 (6th Cir.1970) (per curiam ), the court had a narrower view of relevancy. The Sixth Circuit reasoned that, in an unarmed bank robbery case, evidence that the defendant had a handgun upon his arrest lacked any probative value to an element of the crime. The Sixth Circuit went beyond relevancy and concluded, apparently under Fed.R.Evid. 403, 404, that admitting this evidence would "likely ... induce the jury to speculate as to other bad acts which the accused may have committed." Id. at 190.
In armed bank robbery cases this court has allowed the introduction in evidence of weapons actually used during the robbery and those weapons of a similar kind used in preparation of the crime. United States v. Cepulonis, 530 F.2d 238, 246 (1st Cir.) cert. denied, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 834 (1976). United States v. Eatherton, 519 F.2d 603 (1st Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975). Where there is proof that a weapon has been employed in a bank robbery, a district court may permit the introduction of that weapon or a weapon of a similar kind to show identity, Eatherton, 519 F.2d at 611, or to corroborate testimony linking defendant to the crime charged. Cepulonis, 530 F.2d at 246. Such evidence is relevant "to establish opportunity or preparation to commit the offense charged, and thus would have tended to prove the identity of the robbers." Ravich, 421 F.2d at 1204 (emphasis added).
As an exception, in cases where the weapons are unrelated to the crime charged, they are relevant as "tools of the trade" to show their necessity for the success of the criminal venture. See United States v. Wiener, 534 F.2d 15, 18 (2d Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976) (involving importation and distribution of narcotics); United States v. Campanile, 516 F.2d 288, 292 (2d Cir.1975) (admitting a gun as relevant to intent; defendant had admitted that he took the gun with him and, while it was not used during the theft, "having it along would appear to be a form of criminal insurance for the success of the venture").
In this case, the admission of real and testimonial evidence of two loaded weapons seized from Ferreira upon his arrest did not make any fact material to the indictment "more or less probable than it would be without the evidence" Fed.R.Evid. 401. See Laker, 427 F.2d at 190. Unlike Cepulonis and Eatherton, there is no foundation testimony in the record showing that Ferreira had actually carried a gun at the time of the robbery. Mere appearance of carrying a gun is not enough for relevancy. But see Vosper, 493 F.2d at 435-36. We find that the weapons were irrelevant to the issues of identity and intimidation.
Nor do we find another permissible purpose on which the district court could have admitted the guns. Because there is no proof of actual possession at the time of the robbery, the evidence was not a sort of "criminal insurance" for the success of the venture. See Campanile, 516 F.2d at 292. We do not think that, because weapons may be part and parcel of some narcotics importation and distribution cases, they should similarly be admitted in every kind of bank robbery case, particularly one in which the modus operandi was characterized by the absence of guns. Finally, we find that the evidence was irrelevant for impeachment purposes. Fed.R.Evid. 404. Ferreira did not open the door at trial to real or testimonial evidence of the firearms. See United States v. Warledo, 557 F.2d 721, 726 (10th Cir.1977). In fact, the district court denied his motion in limine and his repeated objections at trial requesting the exclusion of such evidence. While Ferreira testified about the guns as an explanation for his flight, we have no way of knowing whether or not he would have so testified had the motion in limine been granted. Given the prejudicial impact of weapons, it is entirely possible that counsel would have made the strategic decision not to have used this testimony as an excuse for his flight. We hold that the district court abused its discretion in admitting irrelevant evidence. Although we base our decision on relevancy grounds, we also join the Laker court in holding that such evidence, even if remotely relevant, would have been unfairly prejudicial to appellant. Fed.R.Evid. 403. We turn next to harmless error analysis. Fed.R.Crim.P. 52(a).
The Government's theory of the case was that, less than one hour after the robbery, a man having some resemblance to a description of one robber was caught with evidence stolen from the bank. The Government also introduced the guns in an effort to prove identity. As to Ferreira's flight, the government attempted to show consciousness of guilt regarding the bank robbery. It is clear from the evidence, however, that none of the eyewitnesses could positively identify Ferreira as one of the robbers except to testify as to his profile and general physical appearance.
Frances C. Schifone, the bank's branch manager, testified that she saw a white slim man about 5'8"-5'10", in his mid 20's, and wearing an orange jacket and dark pants, as he jumped over the teller's counter and demanded money. Because the robber was wearing a ski mask, all that she could see was "the little bit of hair" underneath that mask. This witness also testified that the robber had stolen $3,258 including "bait money." The serial numbers of the "bait money" were listed both at the bank and at the Federal Deposit Insurance Corporation. She also said that the robber stole some "coin rolls." A customer at the bank had to write his account number over the rolls before being allowed to deposit the coins. Mary Naughton, a bank teller, testified to the intimidation issue. She said that the suspect who jumped over the counter pushed over another teller, and appearing to draw a gun from his pocket, said "give me all your money." She testified that this man seemed to be taller than the man in the lobby. Agent Sylvester Rutherford testified as to the shoeprint impression left over the counter. Although the government attempted, through the testimony of Mr. Bodziak, to make a connection between this footprint and the Nike sneakers seized from appellant, the court correctly excluded it for lack of relevancy. Agent William Cassano testified as to the initial stop and as to Ferreira's similarity to the radioed description. Although Cassano could not say that Ferreira was the man who exited the blue Datsun, he did identify Ferreira as fitting one description and as the man coming out of Room 725. Cassano also testified that, at 3:00 PM--about 4 1/2 hours after the robbery--he obtained a warrant to search that room. Agent Russell J. Horner conducted the search of Room 725 (the apartment of McDonald, an admitted bank robber). This search produced a red/white baseball cap, a pair of sunglasses, $523 in money recovered from a toilet (including "bait" and "mutilated" money), and a key which turned out to be from a bank drawer. The government then introduced the testimony of officer James O'Connor. The officer testified that he seized from Ferreira two loaded handguns, over $1,000 in money, including $151 in bait money, a blue "Barracuda" jacket (which an eyewitness testified McDonald was wearing at the robbery), a pair of white Nike sneakers, and "coin rolls."
The principal theory was that there was a reasonable doubt as to whether Ferreira committed the crime. Ferreira admitted that he knew McDonald. He claimed to have gone to his apartment to obtain payment of a $300 loan, and that McDonald paid him with money which later turned out to have been stolen from the bank. He testified that the other money in his pockets legitimately came from a settlement in a personal injury case. As to the reason for his flight, Ferreira testified that he was nervous of being caught with the two weapons, and not because of consciousness of guilt of bank robbery.
THE COURT: Well, it's certainly not the strongest identification case that ever came down the [p]ike.
[THE PROSECUTOR]: The robber was wearing a ski mask in the bank, your Honor, so with respect to identification, the Court is right, it is a weak identification case.
The fact is, though, there are a number of pieces of significant evidence that tie the defendant to the bank.
THE COURT: Yes, I think the jury could find beyond a reasonable doubt that this defendant was one of the robbers. I agree with you, it's not a necessary inference, but it's a permissible one from all of these circumstances.
[THE DEFENSE]: But only that he knew the money was stolen, not that he was in the bank.
[THE COURT]: No. But you combine the presence of the money with the similarity of description, with the similarity of clothing, with his possession of two small pistols, and the fact that within a short time after the robbery he was seen in the company of one of the known robbers. Take any one of those things by itself, I don't think you could support a case, but you put them together, and you have a combination of circumstances, which I think would warrant the jury drawing an inference which is supportable beyond a reasonable doubt that he is one of the robbers. (Emphasis added).
We cannot conclude that the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The strength of the admissible, circumstantial evidence is not "overwhelming." United States v. Hasting, 461 U.S. 499, 507-09, 103 S.Ct. 1974, 1979-80, 76 L.Ed.2d 96 (1982). Unlike in Hasting, where the Court found harmless error, the identification evidence in this case was concededly weak. The exclusion of the firearms evidence might have raised a reasonable doubt as to identification because of the weakness of the other admissible evidence. Most importantly, the district court thought that the possession of the guns would figure prominently as a critical piece of evidence for the jury to consider in its deliberations. The court's failure to issue a cautionary instruction clearly enhanced its prejudicial impact. Cf. United States v. Robinson, 560 F.2d 507 (2d Cir.1977) (en banc), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978). The jurors could have made the impermissible inference that "bad men carry guns, and thus, the bank robber is the bad man." We disagree with appellee that the admissibility of the guns could not have swayed the jury into finding defendant guilty. See United States v. Ouimette, 753 F.2d 188, 192-93 (1st Cir.1985).
We vacate the judgment and remand to the district court for a new trial consistent with this opinion.
Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.

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