text:
BARBARA A. CARLE, Respondent, v. MCCHORD CREDIT UNION, Appellant.
 Evidence – Burden of Production – What Constitutes – Test. Evidence is sufficient to take the case to the jury if the claimant meets the burden of production. Whether the burden of production has been met is an issue for the trial court, which considers the evidence and the reasonable inferences therefrom most favorably toward the claimant. The burden of production is met when the claimant produces evidence sufficient to support a finding of each element of the claim.
 Civil Rights – Age Discrimination – Discharge From Employment – Shifting Burdens of Production – Initial Burden on Plaintiff. In an action claiming age discrimination in a discharge from employment, the plaintiff has the initial burden of producing evidence sufficient to support findings that the plaintiff (1) was between 40 and 70 years old and (2) was doing satisfactory work (3) when discharged and that (4) the replacement worker was younger than the plaintiff. Satisfying this standard creates a rebuttable presumption of discrimination.
 Civil Rights – Age Discrimination – Discharge From Employment – Shifting Burdens of Production – Burden on Employer. Once a discharged employee in an action claiming age discrimination has met the initial burden of production, the employer has the burden of producing or adopting evidence sufficient to support a finding that the plaintiff was discharged for a legitimate, nondiscriminatory reason. An employer which fails to meet this burden is liable as a matter of law.
 Civil Rights – Age Discrimination – Discharge From Employment – Shifting Burdens of Production – Second Burden on Plaintiff. Once a discharged employee who claims age discrimination has met the initial burden of production and the employer has responded by meeting its burden of producing evidence of a legitimate, nondiscriminatory reason for the discharge, the burden shifts to the plaintiff to produce or adopt evidence sufficient to support a finding that the employer's alleged reason for the discharge is a pretext. This burden can be satisfied directly or indirectly by showing that the employer's proffered explanation is unworthy of credence. If this burden is met, the case goes to the trier of fact.
 Civil Rights – Law Against Discrimination – Definition of "Discrimination" – Alteration by Contract. What constitutes discrimination is a matter of public policy established by the Legislature. Parties are not free to alter the definition of "discrimination" by contract.
 Trial – Instructions – Proposed Instructions – Evidentiary Support. A jury should not be instructed on an issue of fact not presented by the evidence.
 Trial – Instructions – Proposed Instructions – Repetitive Instructions – Negative Restatement. An instruction that restates negatively that which has already been stated positively in an instruction is cumulative and need not be given.
 Jury – Selection – Challenge for Cause – Timeliness – After Questioning Other Jurors – Discretion of Court. A trial court has discretion to consider a challenge of a juror for cause made after the party passed the juror for cause, questioned other prospective jurors, and exercised peremptory challenges.
 Jury – Selection – Challenge for Cause – Bias – Implied Bias – "Interest" in Action – Discretion of Court. Whether a prospective juror is impliedly biased based on an "interest" in the action within the meaning of RCW 4.44.180(4) is a decision within the trial court's discretion.
 Jury – Selection – Challenge for Cause – Bias – Reasonable Suspicion. A trial court does not err by exercising its discretion in favor of honoring a challenge of a prospective juror for cause when the court reasonably suspects that circumstances outside the evidence may create bias or an appearance of bias on the part of the challenged juror.
 Evidence – Rebuttal Evidence – Discretion of Court. Whether to permit rebuttal evidence is a decision within the trial court's discretion.
 Civil Rights – Law Against Discrimination – Attorney Fees – Segregation of Claims – Discretion of Court. A trial court's segregation of attorney fees incurred in a discrimination claim for which attorney fees are recoverable under RCW 49.60 from attorney fees incurred in other claims for which attorney fees are not recoverable is reviewed under the abuse of discretion standard.
 Courts – Judicial Discretion – Abuse – What Constitutes – In General. A trial court's discretion is abused only if no reasonable person would have taken the trial court's view.
Nature of Action: A discharged employee sought damages from her former employer under seven separate theories.
Superior Court: After a partial summary judgment was granted dismissing five of the claims, the Superior Court for Pierce County, No. 88-2-07602-8, Bruce Cohoe, J., on October 20, 1989, entered a judgment on a verdict in favor of the employee for age discrimination and negligent infliction of mental distress.
Court of Appeals: Holding that there was sufficient evidence of age discrimination to establish the claim, that the trial court had properly refused certain proposed instructions, that the trial court did not abuse its discretion in awarding attorney fees and in considering and granting a tardy challenge of a juror for cause, and that expert rebuttal testimony was admissible, the court affirms the judgment.
Gilbert M. Stratton, Jacquelyn M. Aufderheide, and Eisenhower, Carlson, Newlands, Reha, Henriot & Quinn; Andrew R. Gala and Schwabe, Williamson & Wyatt, for appellant.
Patricia C. Fetterly and Davies Pearson, P.C., for respondent.
MORGAN, A.C.J. – McChord Credit Union discharged Barbara Carle from employment. She sued and obtained a jury verdict based on findings of age discrimination and negligent infliction of mental distress. McChord appeals; we affirm.
In 1981, McChord hired Carle to be the branch manager of its Lakewood office. She was hired as an at-will employee.
A satisfactory consumer credit report must be maintained by all employees of the credit union. The credit union may periodically request written authorization to conduct a consumer credit report to verify an employee's financial status meets employment standards.
An unfavorable credit report may result in counseling to include transfer to another position, required consumer credit counseling, or further disciplinary action, which may include termination of employment.
Employees of the credit union are expected to demonstrate the highest standards of financial responsibility and integrity in the management of their personal accounts at McChord Credit Union.
In late 1987, McChord reorganized and greatly expanded its Lakewood office. The new office was staffed by its president and five vice-presidents. The reorganization resulted in the elimination of only one job, but it was Carle's branch manager position.
Notwithstanding the elimination of Carle's job, McChord's president assured her that she was doing high quality work and could remain with the credit union in another capacity. Thus, she commenced work as a new accounts supervisor on March 22, 1988. The salary range for branch manager had been $2,240 to $3,360 per month; the salary range for new accounts supervisor was $1,588 to $2,375 per month.
A month or so after Carle started work in the new job, McChord began to investigate her personal finances. In early June, it alleged that she was in violation of its financial policy for employees, and on June 10, 1988, it terminated her employment.
«1» The pension account became 100 percent vested after 10 years of service, but was only 70 percent vested when Carle was fired. In 1989, the pension plan was changed so that 100 percent vesting occurred after 6 years of service.
She was replaced by a person 31 years old with 5 years' experience. Her salary as new accounts supervisor had been $2,352 per month; the new employee's salary was $1,650 per month.
Carle sued, alleging seven causes of action. Before trial, five were dismissed by an order granting partial summary judgment. The other two asserted age discrimination and negligent infliction of mental distress. At the conclusion of trial, the jury returned verdicts of $100,000 for age discrimination and $18,000 for negligent infliction of mental distress. The trial court later awarded Carle reasonable attorney's fees of $47,515 and costs of $6,749.29, but these amounts were only a portion of what she sought.
«2» In its second assignment of error, McChord also says that there was insufficient evidence to support a finding of negligent infliction of mental distress. However, it presents no argument or authority in support of that assignment, and thus we do not consider it. Seattle Sch. Dist. 1 v. State, 90 Wn.2d 476, 496, 585 P.2d 71 (1978); Lassila v. Wenatchee, 89 Wn.2d 804, 809, 576 P.2d 54 (1978).
that the trial court incorrectly instructed the jury; that the trial court should not have allowed Carle to tardily challenge a juror for cause; and that the trial court should not have allowed Carle to call a certain expert witness in the rebuttal phase of her case. Carle cross-appeals on the ground that the trial court improperly reduced her claim for attorney's fees and costs.
«3» McChord also argues that the trial court erred by denying its motion for dismissal made at the close of the plaintiff's case in chief. Any error concerning that motion, however, was waived when McChord elected to present evidence on its own behalf. See Goodman v. Bethel Sch. Dist. 403, 84 Wn.2d 120, 123, 524 P.2d 918 (1974); Heinz v. Blagen Timber Co., 71 Wn.2d 728, 730, 431 P.2d 173 (1967); Wines v. Engineers Ltd. Pipeline Co., 51 Wn.2d 487, 498, 319 P.2d 563 (1957).
«4» Here, it is undisputed that plaintiff bore the burden of persuading the jury by a preponderance of evidence. Grimwood v. University of Puget Sound, Inc., 110 Wn.2d at 365.
In re C.B., 61 Wn. App. at 282.
To question the sufficiency of evidence is to question whether the burden of production has been met. The burden of production is met when the plaintiff produces evidence sufficient to support a finding of each element of the cause of action. In re C.B., 61 Wn. App. at 285-86. When it is met, it is said that the evidence is "sufficient" or "substantial". In re C.B., 61 Wn. App. at 286.
«5» We have no occasion to consider employment discrimination cases based on direct evidence of discrimination, on a statistical pattern of discrimination, or on any other evidence not patterned after McDonnell Douglas. See Stork v. International Bazaar, Inc., 54 Wn. App. 274, 278, 774 P.2d 22 (1989) (discussing federal cases not patterned on McDonnell Douglas); Hatfield v. Columbia Fed. Sav. Bank, 57 Wn. App. 876, 881-83, 790 P.2d 1258 (1990) (evidence raised inference of discriminatory intent regardless of whether fourth McDonnell Douglas element was met).
the burden of production is divided into three facets, two resting on plaintiff and one on defendant. This uncommon allocation of the burden recognizes that the employer is usually the one who knows why employment was terminated and "helps an alleged victim of discrimination identify the reasons he must show did not in fact lead to his discharge or rejection . . .." Grimwood v. University of Puget Sound, Inc., 110 Wn.2d at 362 (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1014-15 (1st Cir. 1979)).
The first facet of the burden of production must be met by plaintiff in his or her case in chief. It requires that plaintiff produce evidence sufficient to support findings (1) that he or she was discharged from employment; (2) that at the time of discharge he or she was an employee between 40 and 70 years of age; (3) that at the time of discharge he or she was doing satisfactory work; and (4) that he or she was replaced by a younger person. Grimwood, 110 Wn.2d at 362; Brady v. Daily World, 105 Wn.2d 770, 776, 718 P.2d 785 (1986); Roberts v. ARCO, 88 Wn.2d 887, 568 P.2d 764 (1977). Because they are derived from McDonnell Douglas, these four elements will be referred to as the McDonnell Douglas elements.
«6» Translated into negative terms, the effect of proving the McDonnell Douglas elements is to prevent the defendant from obtaining an order of dismissal at the end of plaintiff's case, notwithstanding that the evidence does not yet show why the discharge occurred. See Grimwood, 110 Wn.2d at 362-63 (quoting Loeb v. Textron, Inc., supra).
«7» Though not required to do so, the Washington Supreme Court has generally looked to federal cases for guidance when ruling upon discrimination claims. Douchette v. Bethel Sch. Dist. 403, 117 Wn.2d 805, 811, 818 P.2d 1362 (1991); Grimwood, 110 Wn.2d at 361-62; Stork, 54 Wn. App. at 277-78. But see Allison v. Housing Auth., 118 Wn.2d 79, 91, 821 P.2d 34 (1991).
In all civil actions and proceedings . . . , a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
(Citation omitted.) Texas Dep't of Comm'ty Affairs v. Burdine, 450 U.S. 248, 254 n.7, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).
«9» Each party is entitled to the benefit of evidence produced by the other. Provins v. Bevis, 70 Wn.2d 131, 136-37, 422 P.2d 505 (1967); Hector v. Martin, 51 Wn.2d 707, 710, 321 P.2d 555 (1958); Whitchurch v. McBride, 63 Wn. App. 272, 275, 818 P.2d 622 (1991); WPI 1.02. Thus, if plaintiff in his or her case in chief goes beyond the four McDonnell Douglas elements and introduces evidence tending to show a legitimate, nondiscriminatory reason for the discharge, defendant is entitled to the benefit of that evidence as the court decides whether the second facet of the burden of production has been met.
evidence sufficient to support a finding that plaintiff was discharged for a nondiscriminatory reason. Texas Dep't of Comm'ty Affairs v. Burdine, 450 U.S. at 255. If defendant fails to do that, the record will show (1) the four McDonnell Douglas elements and (2) defendant's failure to advance a legitimate reason for its action after being afforded an opportunity to do so. On such a record, there is no genuine issue of fact, Texas Dep't of Comm'ty Affairs v. Burdine, 450 U.S. at 254, and plaintiff will be entitled to an order establishing liability as a matter of law. Grimwood, 110 Wn.2d at 363 (quoting Loeb v. Textron, Inc., 600 F.2d at 1014-15), 364; Burdine, 450 U.S. at 254; Lewis v. Doll, 53 Wn. App. 203, 211-12, 765 P.2d 1341, review denied, 112 Wn.2d 1027 (1989). However, if defendant produces or adopts evidence of a legitimate, nondiscriminatory reason, the presumption raised by the McDonnell Douglas elements is rebutted, Burdine, 450 U.S. at 255, and plaintiff "must then have an opportunity" to prove that the defendant's reason is a pretext. Burdine, 450 U.S. at 253, 256, 257.
«10» See preceding footnote. If any evidence produced in the first or second stages of the case tends to prove that the defendant's explanation is a pretext, plaintiff is entitled to its benefit at this third stage of the case.
«11» The reasoning of Grimwood v. University of Puget Sound, Inc., supra, confirms the existence of the third facet of the burden of production. In Grimwood, the Supreme Court assumed that plaintiff had produced evidence sufficient to support the McDonnell Douglas elements. 110 Wn.2d at 364. Further, it held that defendant had met its burden of production by articulating a nondiscriminatory reason for termination. 110 Wn.2d at 364. Nonetheless, it dismissed plaintiff's case. The only logically available conclusion is that a plaintiff who would prove a discrimination case patterned after McDonnell Douglas must produce not only evidence sufficient to support each McDonnell Douglas element, but also evidence sufficient to support an inference of pretext.
Once the employer fulfills his burden of production, to create a genuine issue of material fact the plaintiff must satisfy his ultimate burden of persuasion and show that the employer's articulated reasons are a mere pretext for what, in fact, is a discriminatory purpose.
(Italics ours.) 110 Wn.2d at 364.
An issue of fact is created by satisfying the burden of production. See deLisle v. FMC Corp., 57 Wn. App. 79, 84, 786 P.2d 839, review denied, 114 Wn.2d 1026 (1990). An issue of fact is resolved by satisfying the burden of persuasion. Thus, the quoted language appears to contain an "infelicitous word choice", Jones, 60 Wn. App. at 371-73, and we read it as simultaneously expressing two propositions. First, plaintiff makes a case sufficient for submission to the jury (and satisfies the burden of production) only if in the rebuttal phase of the case he or she produces or adopts evidence sufficient to support a finding of pretext.Second, plaintiff always retains the ultimate burden of persuasion. The latter proposition is expressed elsewhere in Grimwood, 110 Wn.2d at 363 (quoting Loeb, 600 F.2d at 1014-15), and accords with the United States Supreme Court's principal holding in Burdine, 450 U.S. at 259-60. As to the former proposition, see Jones v. Kitsap Cy. Sanitary Landfill, Inc., supra; deLisle v. FMC Corp., supra.
110 Wn.2d at 364; Jones, 60 Wn. App. at 371; Burdine, 450 U.S. at 256 (unclear whether court was referring to burden of production or persuasion). This can be done directly, or "indirectly by showing that the employer's proffered explanation is unworthy of credence." See Burdine, 450 U.S. at 256; Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991). If the third facet is not met, defendant is entitled to dismissal as a matter of law. Grimwood, 110 Wn.2d at 365; Hibbert v. Centennial Villas, Inc., 56 Wn. App. 889, 894, 786 P.2d 309 (1990). If the third facet is met, the case involves – for the first time – a reasonable inference of discrimination. Jones, 60 Wn. App. at 373.
When all three facets of the burden of production have been met, the case must be submitted to the jury. Plaintiff having met the first and third facets, the record will necessarily contain evidence sufficient to support findings of each McDonnell Douglas element, plus pretext. Jones, 60 Wn. App. at 373 (racial discrimination); see deLisle v. FMC Corp., 57 Wn. App. 79, 84-86, 786 P.2d 839 (age discrimination), review denied, 114 Wn.2d 1026 (1990). Defendant having met the second facet, the record will contain evidence sufficient to support an inference that the discharge was due to a legitimate nondiscriminatory reason. Thus, the record will contain reasonable but competing inferences of both discrimination and nondiscrimination, and it is the jury's task to choose between such inferences. United States v. Stanley, 928 F.2d 575, 577 (2d Cir.), cert. denied, ___ U.S. ___, 116 L. Ed. 2d 108, 112 S. Ct. 141 (1991).
«12» In its opening brief at page 19, McChord states, "[W]e can assume that Carle made out a prima facie case."
In her case in chief, she produced evidence sufficient to support findings that she was discharged from employment, that she was 43 at the time, that she was doing satisfactory work, and that she was replaced by a younger person.
McChord met the second facet of the burden of production. It produced evidence sufficient to support an inference that it discharged Carle because it thought she was in violation of its financial policy for employees.
«13» McChord contends that the entries were "corrected" because after discharge she paid down the balances. At trial, however, Carle testified that she had the entries corrected by the credit reporting agency. Based on that testimony, the jury could have inferred that the entries were erroneous in the first instance.
On the date of discharge, Carle's debt level was arguably unremarkable. She owed $50,000 on a home mortgage and $5,000 to $7,000 on other consumer debt. McChord claimed that she had been past due on various loans, but Carle testified to the contrary and was supported in part by McChord's own records. When McChord calculated and compared her income and expenses, it included the mortgage payments she was making on the home she owned, but peculiarly omitted rental income she received from tenants occupying the same home. McChord claimed that Carle's Visa card was repeatedly overdue and over limit, but Carle testified that she never had overdue payments; that along with 15 to 20 other employees, she was told on one occasion that she was over limit and would have to bring down her balance; that she did so; and that her Visa card was current on June 10, 1988. McChord claimed that Carle had not paid her real estate taxes on time in 1988, but the evidence showed those taxes were paid only 5 days late.
Cumulated, this evidence was sufficient to support a reasonable inference of pretext and to meet the third facet of the burden of production. See Jones, 60 Wn. App. at 373 (sufficient evidence of pretext); deLisle, 57 Wn. App. at 86 (sufficient evidence of discriminatory intent). Thus, there were reasonable inferences of both discrimination and nondiscrimination; the choice between those inferences was for the jury, Stanley, 928 F.2d at 577; and the trial judge did not err when he denied McChord's motion for directed verdict.
Just cause for termination is a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power. Discharge for just cause is one based on facts (1) supported by substantial evidence, (2) reasonably believed by the employer to be true and (3) which are not for any arbitrary, capricious or illegal reason.
If you find that the plaintiff's discharge was based on facts (1) supported by substantial evidence, (2) reasonably believed by the employer to be true and (3) which are not for any arbitrary, capricious or illegal reason, whether or not you personally agree with the decision, you must find in favor [of] the defendant.
An employer has the right to discharge any employee for any non-discriminatory reason, with or without cause, in the absence of a contract for a specified period of time. The Court has determined, as a matter of law, that the plaintiff did not have a contract of employment.
If you find that the plaintiff's discharge was based on facts (1) supported by substantial evidence, (2) reasonably believed by the employer to be true, and (3) which are not for any arbitrary, capricious reason, whether or not you personally agree with the decision, you must find in favor of the defendant.
McChord's proposed supplemental instruction 2 was the same as number 1 except that it omitted clauses (1) and (3) in the second paragraph. Its proposed instruction 15 was also the same as number 1, except it omitted the second paragraph, substituted "lawful" for "nondiscriminatory" in the first paragraph, and contained some other differences not pertinent here.
It seems to make three arguments in support of the claim.
«15» Proposed instruction 20, supplemental instruction 1, and supplemental instruction 2.
which, according to McChord, would have prevented the jury from "second-guessing" the decision to terminate Carle's employment. The argument is based on Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 769 P.2d 298 (1989). In that case, an employee sued an employer for breach of contract, 112 Wn.2d at 130, and there was evidence that the employer and employee had formed a contract providing that the employee would be fired only for "just cause". 112 Wn.2d at 129. By entering into such a contract, the employer gave up its discretion to fire without a reason constituting just cause. It did not, however, give up its discretion to decide what facts would constitute just cause, or its discretion to decide on the presence of those facts in a particular case. 112 Wn.2d at 137-38. At trial, then, the jury's normal role as primary fact finder was radically altered. It was required to defer to the employer's exercise of its contractually retained fact-finding discretion, much as an appellate court defers to a trial court's findings of fact on appeal. It could not "second-guess" the employer in the sense of making its own findings of fact, but instead was required to find for the employer if the employer's decision was not arbitrary, capricious or illegal; was based on facts supported by substantial evidence; and was based on facts reasonably believed by the employer to be true. 112 Wn.2d at 139. The Supreme Court reversed because the jury instructions did not properly describe this sui generis role of the jury. See also Gaglidari v. Denny's Restaurants, Inc., 117 Wn.2d 426, 437-38, 815 P.2d 1362 (1991).
«16» Having ruled that the proposed Baldwin instructions do not apply, we need not discuss other defects they may have contained.
A jury should not be instructed on issues of fact not presented by the evidence. State v. King, 92 Wn.2d 541, 547, 599 P.2d 522 (1979); State v. Robinson, 76 Wn.2d 218, 219, 455 P.2d 945 (1969). At trial, Carle was not claiming that she was dischargeable only for cause. Thus, just cause was not an issue for the jury to decide, and the trial court did not err by refusing to define it.
«18» Proposed instruction 15; proposed supplemental instructions 1 and 2.
«19» As we have discussed at length, the McDonnell Douglas elements are part of the burden of production, and the burden of production is ordinarily for the judge. Whether they should be included in a jury instruction is not at issue here, and we express no opinion on that proposition.
«20» The propriety of this statement is not disputed on appeal.
For the court to have further instructed that McChord could not be found liable if it discharged Carle for a nondiscriminatory reason would have been to restate in negative form that which had already been stated positively, and the court did not err when it declined to do that.
During jury selection, the second person questioned was a Mr. Benson. He was a current member of McChord Federal Credit Union and kept a small amount of money there so that his membership would not be terminated. He had obtained two loans from McChord, one of which he was still repaying at the time of trial.
Carle initially passed Benson for cause, but after two more jurors had been questioned and the lunch recess taken, she challenged him for cause due to implied bias. McChord objected to the timeliness and the substance of the challenge, and Carle agreed that a ruling could be deferred until it appeared she would exhaust her peremptory challenges. The rest of the first 12 jurors were then questioned and passed for cause, Carle exercised two of her peremptory challenges, and the court adjourned for the day. As the first item of business the next morning, the court heard argument on and granted the challenge to Benson. McChord reiterates its arguments on appeal.
«21» McChord relies on Catarau v. Sunde & d'Evers Co., 188 Wash. 592, 596-97, 63 P.2d 365 (1936) and State v. Schmidt, 141 Wash. 660, 252 P. 118 (1927) for the proposition that Carle waived her challenge when she failed to make it in a timely fashion. In the first case, no challenge for cause was made at the trial level. In the second, the challenge was timely rather than tardy. Nothing in either case says that a trial court lacks discretion to consider a tardy challenge under appropriate circumstances. See Ottis, 61 Wn. App. at 760-61.
The trial court did choose to consider it, however, and that choice was within its discretion.
«22» In support of this conclusion, we note that RCW 4.44.180(4) specifically states that a prospective juror will not be deemed to have an interest in an action because he or she is "a member or citizen of the county or municipal corporation." By omission, this tends to imply that one may be found to have an interest if he or she is a member or stockholder of a private entity such as a credit union.
On August 9, 1989, McChord identified Richard Brandsma, president of Tacoma Telco Credit Union, as an expert witness who would testify about the need for employees of financial institutions to be financially responsible. McChord neglected to state the substance of Brandsma's testimony as required by CR 26(b)(5)(A)(i) and CR 26(e), but it agreed to make him available for deposition. Due to Brandsma's schedule, however, no deposition was held before trial commenced on September 5. Brandsma was finally deposed 6 days later and according to Carle, it was at that deposition that she first learned what Brandsma would testify about.
«23» At the time of trial, Carle was an employee of United Northwest Federal Credit Union.
McChord objected on grounds that Duffy was a "surprise witness" of whom it had not been notified. The trial court ruled that Duffy could testify, provided that McChord was given the opportunity to depose him first. Duffy's deposition was taken a few days after Brandsma's.
 McChord now argues that the trial court erred by allowing Duffy to testify. Whether to permit rebuttal evidence is within the sound discretion of the trial court, Kremer v. Audette, 35 Wn. App. 643, 648, 668 P.2d 1315 (1983) (quoting State v. White, 74 Wn.2d 386, 394-95, 444 P.2d 661 (1968)), and error can be predicated only on an abuse of discretion. Here, McChord failed to make the substance of Brandsma's testimony known until September 11, 6 days into the trial. Carle immediately consulted with Duffy, who disagreed with Brandsma's opinions and was willing to testify. The very next day, Carle notified McChord and the court that she intended to offer Duffy to rebut Brandsma and would make him available for deposition. The trial court did not err when it ruled that Duffy could testify.
"The case started with multiple causes of action and was ultimately reduced down to two causes of action. Additionally, there was considerable trial time and briefing spent on the negligent infliction of emotional distress cause of action during the course of the trial, and I can only presume that there was similarly a considerable amount of discovery related to the same.
"It is my belief there is no precise method which can be employed to award attorney's fees. However, in the view of the multiple causes of action and the manner in which the case was tried, I am attributing 65% of the fees to the discrimination claim and I am thus, awarding attorney's fees in the amount of $47,515.00."
It awarded her reasonable attorney's fees of $47,515 and costs of $6,749.
[12, 13] When determining the amount of reasonable attorney's fees to be awarded in connection with an age discrimination claim, a trial court has discretion. Xieng v. Peoples Nat'l Bank, 63 Wn. App. 572, 586, 821 P.2d 520 (1991) (costs); Pannell v. Food Servs. of Am., 61 Wn. App. 418, 447, 810 P.2d 952, 815 P.2d 812 (1991) (costs), review denied, 118 Wn.2d 1008 (1992). Its exercise of that discretion will not be reversed absent abuse, Allard v. First Interstate Bank of Wash., N.A., 112 Wn.2d 145, 148, 768 P.2d 998, 773 P.2d 420 (1989); Xieng, 63 Wn. App. at 585, and discretion is abused only where no reasonable person would have taken the view adopted by the trial court. State v. Pederson, 44 Wn. App. 391, 396, 722 P.2d 127, review denied, 107 Wn.2d 1005 (1986). In this case, the manner in which the trial court segregated attorney's fees incurred on the age claim from attorney's fees incurred on other claims was reasonable, Gaglidari v. Denny's Restaurants, Inc., 117 Wn.2d 426, 450, 815 P.2d 1362 (1991), and there was no abuse of discretion.
Carle has substantially prevailed on this appeal. As a result, she is entitled to reasonable attorney's fees and costs incurred in this court, except fees and costs attributable to her cross appeal. RCW 49.60.030(2); Xieng, 63 Wn. App. at 587; Pannell, 61 Wn. App. at 450.
«25» Just before oral argument, McChord made a motion on the merits. The motion was denied by one of the commissioners of this court. After oral argument, McChord moved for an order modifying the commissioner's ruling. The clerk returned that motion as untimely, and McChord then moved to modify the clerk's ruling as well as the commissioner's. We now grant the motion to modify the clerk's ruling but deny the motion to modify the commissioner's ruling. Our reasons for the denial are those expressed in this opinion.
ALEXANDER, J., and WORSWICK, J. Pro Tem., concur.

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Y. Or and Elon Rimon, "Characterization of a Class of Three-contact Frictional Equilibrium Postures in Three-dimensional Gravitational Environments", Int. Journal of Robotics Research, vol. 29, no. 1, pp. 3-22, 2010.
Isaac, S. and Ronie Navon, "Modeling Construction Projects as a Basis for Change Control", Automation in Construction, vol. 18, no. 5, pp. 656-664, 2009.
A. Shraer, E. Bortnikov, Idit Keidar, M.Gurevich and G.Kliot, "Brahms: Byzantine Resilient Random Membership Sampling", COMNET 2009.
A. Shraer, Idit Keidar, D. Malkhi and M. Aguilera, " Dynamic Atomic Storage Without Consensus", PODC'09, 2009.
Avshalom Manela and M.S. Howe, "On the stability and sound of an unforced flag", Journal of Sound and Vibration, vol. 321, pp. 994–1006, 2009.
Avshalom Manela and M. S. HOWE, "The forced motion of a flag", J. Fluid Mech, vol. 635, pp. 439–454, 2009.
M.Gurevich and Idit Keidar, "Correctness of Gossip-Based Membership", PODC, 2009.
Altshuler Y., Wagner I.A, Yanovsky V. and Alfred M. Bruckstein, "Efficient Cooperative Search of Smart Targets Using UAV Swarms", Robotica Journal, Published online by Cambridge University, no. Press 18, February. 2008.
"Compressed Sensing of Analog Signals", submitted to IEEE Trans. on Signal Processing, June. 2008.
Daniel Weihs and E. Barta, "Comb-Wings for Flapping Flight at Extremely Low Reynolds Numbers", AIAA Journal, vol. 46, no. 1, pp. 285-288, 2008.
Elon Rimon, Y. Or, W. Burdick and R. Mason , "A General Stance Stability Test Based on Stratified Morse Theory with Application to Quasistatic Locomotion Planning", IEEE- Transactions on Robotics and Automation, vol. 24 , no. 3, pp. 626-641, 2008.
Isaac, S. and Ronie Navon, "Feasibility Study of an Automated Tool for Identifying the Implications of Changes in Construction Projects", Journal of Construction Engineering and Management, vol. 134, no. 2, pp. 139-145, 2008.
R. Brafman and Carmel Domshlak, "From One to Many: Planning for Loosely Coupled Multi-Agent Systems", The International Conference on Automated Planning and Scheduling (ICAPS), Sydney, Australia, 2008.
Michael Katz and Carmel Domshlak, "New Islands of Tractability of Cost-Optimal Planning", Journal of Artificial Intelligence Research, vol. 32, pp. 203-288, 2008.
Michael Katz and Carmel Domshlak, "Optimal Additive Composition of Admissible Heuristics", The International Conference on Automated Planning and Scheduling (ICAPS), Sydney, Australia, 2008.
Michael Katz and Carmel Domshlak, "Structural Patterns Heuristics Via Fork Decomposition", The International Conference on Automated Planning and Scheduling (ICAPS), Sydney, Australia, 2008.
R. Brafman and Carmel Domshlak, "Graphically Structured Value-Function Compilation", Artificial Intelligence, vol. 172, pp. 325-349, 2008.
Wagner I.A., Altshuler Y., Yanovsky V. and Alfred M. Bruckstein, "Cooperative Cleaners a Study in Ant-Robotics", The International Journal of Robotics Research (IJRR), vol. 27, no. 1, pp. 127-151, 2008.
Y. Gabriely and Elon Rimon, "CBUG: A Quadratically Competitive Mobile Robot Navigation Algorithm", IEEE Transactions on Robotics and Automation, vol. 6, pp. 1451-1457, 2008.
Yonina Eldar, M. Teboulle and Amir Beck, "A Minimax Chebyshev Estimator for Bounded Error Estimation", IEEE Trans. on Signal Processing, vol. 56, no. 4, pp. 1388-1397, April. 2008.
Avshalom Manela and I. FRANKEL, "On the compressible Taylor–Couette problem", J. Fluid Mech., vol. 588, pp. 59–74, 2007.
Carmel Domshlak and J. Hoffmann, "Probabilistic Planning Via Heuristic forward Search and Weighted Model Counting", Journal of Artificial Intelligence Research, vol. 30, pp. 565-620, 2007.
Carmel Domshlak and T. Joachims, "Efficient and Non-Parametric Reasoning Over User Preferences", User Modeling and User-Adapted Interaction (special issue on Statistical and Probabilistic Methods for User Modeling), vol. 17, no. 1-2, pp. 41-69, 2007.
Erez Ribak, M. Gai, D. Loreggia and S.G. Lipson, "A simple beam combination for stellar interferometry", Optics Letters , vol. 32, pp. 1075-7 , 2007.
Michael Katz and Carmel Domshlak, "Structural Patterns of Tractable Sequentially-Optimal Planning", The International Conference on Automated Planning and Scheduling (ICAPS), Providence, RI, 2007.
Ronie Navon and Kolton, O., "Algorithms for Automated Monitoring and Control of Fall Hazards", Journal of Computing in Civil Engineering, vol. 21, no. 1, pp. 21-28, 2007.
Ronie Navon and Sacks, R. , "Assessing Research Issues in Automated Project Performance Control (APPC)", Automation in Construction, vol. 16, no. 4, pp. 474-484, 2007.
Tal Shima and O.M. Golan, "Head Pursuit Guidance", Journal of Guidance control and dynamics, vol. 30, no. 5, September. 2007.
V. Albanis, Erez Ribak and Y. Carmon, "Reduction of speckles in retinal reflection", Applied Physics Letters , vol. 91, no. 054104, 2007.
V. Mirkis and Carmel Domshlak, "Cost-Sharing Approximations for h+", The International Conference on Automated Planning and Scheduling (ICAPS), Providence, RI, 2007.
Warszawski, A., Becker, R. and Ronie Navon, "Strategic Planning for Research In Building – Process Oriented Methodology", Journal of Construction Engineering and Management, vol. 133, no. 9, pp. 710-722, 2007.
Carmel Domshlak, H. Hoos, R. Brafman, C. Boutilier and D. Poole, "A Tool for Representing and Reasoning with Conditional Ceteris Paribus Preference Statements.
D.L. Donoho, Alfred M. Bruckstein and Michael Elad, "From Sparse Solutions of Systems of Equations to Sparse Modeling of Signals and Images", to appear in SIAM Review.
"Generalized SURE for Exponential Families: Applications to Regularization", to appear in IEEE Trans. on Signal Processing.
M. Protter, Michael Elad, H. Takeda and P. Milanfar, "Generalizing the Non-Local-Means to Super-Resolution Reconstruction", to appear in IEEE Transactions on Image Processing.
M. Protter and Michael Elad, "Image Sequence Denoising Via Sparse and Redundant Representations", to appear in IEEE Trans. on Image Processing.
Tal Shima, S.J. Rasmussen, A.G. Sparks and K.M. Passino, "Multiple Task Assignments for Cooperating Uninhabited Aerial Vehicles Using Genetic Algorithms", Computers & Operations Research, article in press.
V. Mirkis and Carmel Domshlak, "Set-Structured and Cost-Sharing Heuristics for Classical Planning", accepted to Annals of Mathematics and Artificial Intelligence.
V. Shaferman and Tal Shima, "Multi UAV Cooperative Tracking of a Moving Ground Target in Urban Environments.
Last Modified: July 26 2018.

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These frequently asked questions and answers provide general information and should not be cited as any type of legal authority. They provide the user with information responsive to general inquiries. Because these answers do not apply to every situation, yours may require additional research.
Is there an exception to the tax for distributions in substantially equal periodic payments?
Is there guidance on this exception?
How is life expectancy determined?
How is the account balance determined?
How are payments determined under the three methods?
Can I change from one method to another in calculating substantially equal periodic payments?
What is the effect of an account being completely depleted?
Are these the only acceptable ways of determining substantially equal periodic payments?
Can I take my substantially equal periodic payments on a monthly basis?
When do I fulfill my obligation to take substantially equal periodic payments?
Yes. If distributions are made as part of a series of substantially equal periodic payments over your life expectancy or the life expectancies of you and your designated beneficiary, the §72(t) tax does not apply. If these distributions are from a qualified plan, not an IRA, you must separate from service with the employer maintaining the plan before the payments begin for this exception to apply. If the series of substantially equal periodic payments is subsequently modified (other than by reason of death or disability) within 5 years of the date of the first payment, or, if later, age 59½, the exception to the 10% tax does not apply. In that case, your tax for the modification year is increased by the amount that would have been imposed (but for the exception), plus interest for the deferral period.
All three methods require the use of a life expectancy or mortality table. The second and third methods require you to specify an acceptable interest rate.
You may use any interest rate that is not more than 120% of the federal mid-term rate published in IRS revenue rulings for either of the two months immediately before distributions begin.
joint life and last survivor table in I.T. Regulations §1.401(a)(9)-9, Q&A-3.
The account balance may be determined in any reasonable manner based on the facts and circumstances.
Bob, age 50, is the owner of an IRA from which he would like to start taking distributions beginning in 2011. He would like to avoid the §72(t) additional 10% tax imposed on early distributions by taking advantage of the substantially-equal-periodic-payment exception.
The required minimum distribution method consists of an account balance and a life expectancy (single life or uniform life or joint life and last survivor each using attained age(s) in the distribution calculation year). The annual payment is redetermined each year.
For 2011, the annual distribution amount is calculated by dividing the December 31, 2010, account balance ($400,000) by the single life expectancy (34.2) obtained from I.T. Regs. §1.401(a)(9)-9 Q&A-1, using age 50 ($400,000/34.2 = $11,696).
For subsequent years, the annual distribution amount will be calculated by dividing the account balance as of December 31 of the prior year by the single life expectancy. Use the same single life expectancy table used in prior year calculations, but use the current age. For example, if Bob's IRA account balance, after the 2011 distribution has been paid, is $408,304 on December 31, 2011, the annual distribution amount for 2012 ($12,261) is calculated by dividing the December 31, 2011 account balance ($408,304) by the single life expectancy (33.3) obtained from Q&A-1 of I.T Regulations §1.401(a)(9)-9 using age 51 ($408,304/33.3 = $12,261).
The fixed amortization method consists of an account balance amortized over a specified number of years equal to life expectancy (single life uniform life or joint life and last survivor) and an interest rate of not more than 120% of the federal mid-term rate. Once an annual distribution amount is calculated under this method, the same dollar amount must be distributed in subsequent years.
For 2011, the annual distribution amount is calculated by amortizing the account balance ($400,000) over a number of years equal to Bob’s single life expectancy (34.2) (obtained from Q&A-1 of I.T. Regs. §1.401(a)(9)-9 using age 50), at a 2.98% interest rate (April 2011 rates). The annual distribution amount is $18,811.
The fixed annuitization method consists of an account balance, an annuity factor and an annual payment. The annuity factor is calculated based on the mortality table in Appendix B of Rev. Rul. 2002-62 and an interest rate of not more than 120% of the federal mid-term rate. Once an annual distribution amount is calculated under this method, the same dollar amount must be distributed in subsequent years.
Under this method the annual distribution amount is equal to the account balance ($400,000) divided by an annuity factor that would provide one dollar per year over Bob’s life, beginning at age 50. The age 50 annuity factor (21.345) is calculated based on the Rev. Rul. 2002-62 Appendix B mortality table and an interest rate of 2.98%. The annual distribution amount is calculated as $400,000/21.345 = $18,740.
Yes. Rev. Rul. 2002-62 permits a one-time change from either the amortization method or the annuitization method to the required minimum distribution method.
For example, assume Sam started receiving distributions from his IRA in annual substantially equal periodic payments in 2007 at age 50. His annual payment of $65,809 was originally calculated using the amortization method. Sam would like to use the special rule in Rev. Rul. 2002-62 allowing a one-time change to the required minimum distribution method to determine a new annual distribution amount beginning in 2011. For this one-time change in method, Sam will determine an annual distribution amount for 2011 using his IRA account balance on March 31, 2011 ($750,000), and a single life expectancy of 30.5 (obtained from Regulations §1.401(a)(9)-9, Q&A-1, using age 54).
Under the new method, the 2011 distribution amount is $24,590 ($750,000/30.5). Sam must use the required minimum distribution method to determine the annual distribution amount for subsequent years.
If you have no assets remaining in your individual account plan or IRA, you will not be subject to the Code §72(t) tax as a result of not receiving substantially equal periodic payments. In addition, the recapture tax will not apply.
Are these methods the only acceptable ways of determining substantially equal periodic payments?
No. Another method may be used in a private letter ruling request, but, of course, it would be subject to individual analysis.
Can I take my substantially equal payments on a monthly basis?
The simple answer is yes. Your monthly payment under the required minimum distribution method would be the calculated annual amount divided by 12. Under the amortization and annuity methods, the choice of a having the payment made monthly should be part of the original calculation.
The substantially equal period payments must generally continue for at least five full years, or if later, until age 59 ½. For example, if you began taking payments at age 56 on December 1, 2006, you may not take a different distribution or alter the amount of the payment until December 1, 2011, even though your fifth payment was taken on December 1, 2010.
If you begin taking substantially equal periodic payments on December 1, 2005, and you turn 59 ½ on July 1, 2011, you may not take a different distribution or alter the amount of the payment until July 1, 2011.


The Open Meetings Act generally governs executive branch agencies, but its application to the day-to-day operations of the executive branch is limited in two significant respects. First, the OMA governs only gatherings that are defined as "meetings." Second, the OMA specifically excludes from its reach "staff meetings or other gatherings of the employees of a public entity." AS 44.62.310(d)(6). A meeting is defined to include a gathering of more than three or a majority, whichever is less, of the members of a governmental body when a matter upon which the body is empowered to act is considered by the members collectively. If the body has authority to establish policies or make decisions for a public entity, it does not matter whether the gathering was pre-arranged. AS 44.62.310(h)(2). If it does not, and is purely advisory, the gathering is only defined as a meeting if it is pre-arranged for the purpose of considering a matter upon which the governmental body is empowered to act.
Agencies headed by a single director are not subject to the OML because there is no multi-member body making decisions. Decisions are made by the director or Governor. See Ariz. Att’y Gen. Op. No. 75-7.
But if the Governor or agency head appoints a committee or board (see A.R.S. § 38-431(1)), there is debate as to whether any meeting by that body is a public meeting. See Ariz. Att’y Gen. Op. No. 75-7. Attorney General Opinions conflict on this issue. Compare Ariz. Att’y Gen. Op. No. I90-013 (advisory committee appointed by Governor subject to OML), with Ariz. Att’y Gen. Op. No. I92-007 (advisory committee appointed by Governor not subject to OML).
Though the Executive Branch is subject to the records portion of the Act, meetings of the Executive Branch are only open if they fall within the definition of a public body. The open meeting provision does not apply if the public body has only one member. 29 Del. C. § 10004(h)(6).
The Open Meetings Act provides that "[a]ll meetings (including hearings) of any department, agency, board or commission of the District government, including meetings of the Council of the District of Columbia, at which official action of any kind is taken shall be open to the public." D.C. Code Ann. § 1-207.42(a). For purposes of the open meeting rule, the Act defines a "meeting" as "any gathering of a quorum of the members of a public body…at which the members consider, conduct, or advise on public business, including gathering information, taking testimony, discussing, deliberating, recommending, and voting, regardless of whether held in person, by telephone, electronically, or by other means of communication." Id. § 2-574(1). The Act then defines "public body" to include only the boards that supervise or control agencies and the boards of directors of instrumentalities, and to exclude any District agency or instrumentality itself. D.C. Code Ann. § 2-574(3).
“Governing body” means the members of any public agency that consists of two or more members, with the authority to make decisions for, or recommendations to, a public agency regarding any matter. Idaho Code § 74-202(5).
(d) any subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act.
Those reported decisions which have construed the Idaho Open Meeting Law have generally not addressed any issues concerning whether a particular governmental body is subject to the provisions of the law. The cases have assumed the governmental body involved was subject to the Open Meeting Law and have considered actions of a city council, a school district board, the state commission for the blind, a county commission and a public hospital board. However, the Idaho Supreme Court has held that an administrative committee of the State Water Resources Board (which did not include a full quorum of the entire Water Resources Board) was not a “governing body” entrusted with the formation of public policy and therefore was not subject to the Open Meeting Law. Idaho Water Resources Board v. Kramer, 97 Idaho 535, 548 P.2d 35 (1976). Moreover, in Safe Air for Everyone v. Idaho State Dept. of Agriculture, et al, 145 Idaho 164, 177 P.3d 378 (2008), the Idaho Supreme Court held that employees of a state agency did not constitute a “governing body.” Id., 145 Idaho at 168.
Any entity exercising executive or administrative power of the state or its political subdivisions is covered as a “public agency.” Ind. Code § 5.14-1.5-2(a)(1)–(2). In addition, any entity that is subject to budget review by the State Board of Tax Commissioners or the governing body of a county, city, town, township or school corporation or subject to audit by the State Board of Accounts required by statute, rule or regulation also is subject to the Act. Id. § 5.14-1.5-2(a)(3); see also Perry Cnty. Dev. Corp. v. Kempf, 712 N.E.2d 1020, 1025 (Ind. Ct. App. 1999) (“An entity does not become a ‘public agency,’ thus coming within the purview of the statutes in question, by contractually agreeing to submit to an audit or budget review, as is the case here. Rather, an entity is “subject to” those procedures only if compelled to submit by statute, rule, or regulation.”). Any advisory commission or other body created by statute, ordinance or executive order to advise the governing body of a public agency is subject to the Act, as well as any building corporation that issues bonds to construct public facilities. Ind. Code § 5-14-1.5-2(a)(4), (5). Individual office-holders are not “public agencies,” so the statute does not require the governor, mayor or other chief executive to open their meetings to the public, see Ind. Code § 5-14-1.5-2(a), unless they are meeting with the majority of the governing body of a public agency (which constitutes a meeting of that agency under the Open Door Law.). See Ind. Code § 5-14-1.5-2(a).
"Governmental" bodies are covered by the statute. Iowa Code § 21.3. See also Iowa Code § 21.2(1), (2).
Generally, the governing bodies of all executive branch agencies are covered by the Open Meetings Act. See Ky. Rev. Stat. 61.805(2). However, executive cabinet meetings may be held in closed session. See Ky. Rev. Stat. 61.810(1)(h).
Certain executive bodies are expressly excluded from the Act's definition of public bodies. See § 3-101(h)(3). Among the more important exclusions are single member entities, the governor's Cabinet and Executive Council or a local jurisdiction's counterpart, and courts, except when exercising rulemaking power. Id. See § 3-101(h)(3) for the complete listing of excluded bodies.
The constitutional provision guarantees access to "the deliberations of all public bodies or agencies of state government and its subdivisions." Mont. Const., Art. II, § 9 (1972). When any executive branch official is functioning in a deliberative sense, that is, conducting or participating in a meeting by which issues within that agency's jurisdiction are discussed, the deliberations must be open. The deliberations must be open regardless of whether the agency or body is merely discussing or actually taking action on an issue. Hearings are also covered by the Open Meetings Law. Mont. Code Ann. § 2-3-202.
The statute does not specifically address application to chief executive officers, such as governor or mayor, but would apply to such individuals to the extent they are members of bodies referred to below. Statute applies to "governing bodies" of all state executive agencies, Neb. Rev. Stat. §84-1409 (1)(a)(ii), "governing bodies" of all political subdivisions, executive or otherwise, §84-1409 (1)(a)(i), all study or advisory committees of the executive department of the state, §84-1409 (1)(a)(iv), and advisory committees of "governing bodies" of all political subdivisions, executive or otherwise, §84-1409 (1)(a)(v).
Any commission, committee, or board appointed by the Governor with at least two members who are not employees of the State Executive Department are defined as a public body and subject to the OML. NRS 241.015(4)(a). The Governor, acting in his or her or official executive capacity, is not subject to the OML.
The Statute applies to executive branch agencies. RSA 91-A:1-a, V and VI.
Executive branch agencies are covered by the Open Meetings Law if they meet the basic requirements of G.S. § 143-318.10(b).
All state agencies supported in whole or in part by public funds, or entrusted with the expending of public funds, or administering public property, are public bodies under the act except administrative staffs of public bodies, when administrative staffs are not meeting with the public body. 25 O.S. § 304.1. Any meeting between the Governor and a majority of members of any public body is open to the public. 25 O.S. § 308.
Administrative staffs of public bodies, including faculty meetings and athletic staff meetings of institutions of higher education, are not covered by the Act.
Presumably covered. See definition of “public body” in R.I. Gen. Laws § 42-46-2(3).
All executive branch agencies are subject to the Open Meetings Act, unless they consist of less than two people. Utah Code § 52-4-103(9)(a).
The act covers “public bodies,” defined as “any board, council or commission of the state or one or more of its political subdivisions, any board, council or commission of any agency, authority or instrumentality of the state or one of its political subdivisions, or any committee of any of the foregoing boards, council or commissions, except that ‘public body’ does not include “councils or similar groups established by the Governor for the sole purpose of advising the Governor with respect to policy.” 1 V.S.A. § 310(4).
In one early judicial interpretation of the statute, the Vermont Supreme Court held that the State Emergency Board chaired by the governor was not an official agency and that the governor could informally convene it by telephone conference call. State v. Vermont Emergency Bd., 136 Vt. 506, 394 A.2d 1360 (1978). The legislature quickly acted in the next session specifically to include the State Emergency Board in the statute. Although the statute no longer references the State Emergency Board, the general legislative intent is clear to cover all workings of state government and any meetings of any “public body” where official action is considered or taken. See 1 V.S.A. § 312(a) (“All meetings of a public body are declared to be open to the public at all times, except as provided in Section 313 [executive sessions].”).
The Act applies to all public bodies, which is defined broadly to include constitutional officers and any authority, board, bureau, commission, district or agency of the Commonwealth. Va. Code Ann. § 3701 (definition of “public body”).
OPMA only applies to meetings of the “governing body” of an agency or subagency. “Governing body” refers to multi-member boards, commissions, committees, councils, or any policy or rulemaking body. RCW 42.30.020(2). A committee of any governing body is also covered by OPMA whenever it acts on behalf of the government body, conducts hearings, or takes testimony or public comment. Id.
Since the Open Meetings Act applies only to proceedings of the "governing body" of a public agency, defined as entities with two or more members, individual executives such as a governor or mayor are not covered by the statute. This conclusion simply means a governor can meet with his staff without being required to open such a meeting to the public. However, where the mayor is acting in connection with a city council meeting, he becomes part of a public agency and the meeting would be covered by the Open Meetings Act.
No executive branch agencies are specifically excluded from the statute's coverage.
Any commission, board or other entity that acts as a governing body. Governing body is not defined by the Act, but the Wyoming Supreme Court has indicated that it is any body with decision-making authority.


text:
[253 U.S. 142, 144] Messrs. Gilbert E. Roe, of New York City, T. C. West and Daniel O'Connell, both of San Francisco, Cal., and Joseph L. Tepper, of Washington, D. C., for plaintiffs in error.
Plaintiffs in error were tried under an indictment with two counts. The first charges a conspiracy to violate the Espionage Act-section 3, Act June 15, 1917, c. 30, 40 Stat. 217, 219 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, 10212c)-by obstructing the recruiting and enlistment service; the second a conspiracy to violate the Selective Service Law-section 6, Act May 18, 1917, c. 15, 40 Stat. 76, 80 (Comp St. 1918, Comp. St. Ann. Supp. 1919, 2044f).
A demurrer, challenging the constitutionality of both acts and the sufficiency of each count, was overruled.
'We, the jury, find Daniel O'Connell, David J. Smith, Herman B. Smith, Carl J. F. Wacher, Thomas Carey and E. R. Hoffman, the defendants at the bar, guilty on the _____ count of the indictment, and _____ on the _____ count of the indictment.
No objection was made to this verdict when returned, nor at any time prior to May 31, 1919, long after the record came here, when permission was asked to amend the assignments of error.
- [253 U.S. 142, 145] and specified the following grounds: (1) The indictment fails to set forth facts sufficient to constitute an offense. (2) The first count is repugnant to itself for reasons set forth in the demurrer. (3) The second count is based on the Act of May 18, 1917, inapplicable to the defendants because they were not engaged in carrying out its terms. (4) The first count does not adequately inform defendants concerning nature of charge against them. (5) Both the Acts of May 18 and June 15, 1917, are in conflict with the Constitution and are invalid.
September 29 O'Connell was sentenced to the penitentiary for five years on the first count and for two years on the second, the terms to run consecutively. The other plaintiffs in error were sentenced to varying concurrent terms under both counts, none being in excess of three years. On the same day a writ of error from this court was allowed.
The record contains a bill of exceptions, with an elaborate explanatory certificate signed by the District Judge.
The trial took place during July term, 1917; the next term as appointed by statute began November 15. On September 29, 30 days were granted for preparation and presentation of a bill of exceptions. October 23 an order undertook to extend the time to November 15; on November 12 a like order specified November 27; on November 26 an order specified December 15; on December 14 a further order undertook to extend it to December 24, when a still further extension was ordered to December 31. On the latter date a proposed bill was presented. January 9, 1918, the United States attorney procured an order granting time in which to prepare amendments to the proposed bill which were thereafter presented.
But, in order that the matter might bebrought here for final determination, the facts were set out and the certificate signed.
Under the statute the trial term expired November 15; but, for the purpose of filing the bill of exceptions, a general rule extended it to December 4-three months from the first Tuesday in September. The last order of court within the extended term designated December 14 as the final day for action.
'By the uniform course of decision, no exceptions to relings at a trial can be considered by this court, unless they were taken at the trial, and were also embodied in a [253 U.S. 142, 147] formal bill of exceptions presented to the judge at the same or within a further time allowed by order entered at that term, or by standing rule of court, or by consent of parties. ... After the term has expired, without the court's control over the case being reserved by standing rule or special order, and especially after a writ of error has been entered in this court, all authority of the court below to allow a bill of exceptions then first presented, or to alter or amend a bill of exceptions already allowed and filed, is at an end.' Michigan Insurance Bank v. Eldred, 143 U.S. 293, 298 , 12 S. Sup.C t. 450, 452 (36 L. Ed. 162).
The motion to amend original assignments of error is granted. Having regard to the record properly before us only four of the assignments require special notice: (1) Unconstitutionality of the Selective Service and the Espionage Acts. (2) That the first count is bad because it only charges a conspiracy to obstruct the recruiting and enlistment service by inducement and persuasion. (3) The verdict was fatally defective and the judgment invalid. (4) The second count is bad. It charges a conspiracy to make false certificates concerning liability for military service and to aid in evading the act without alleging that the conspirators were officers or persons charged with the duty of carrying it into effect.
The constitutionality of the two acts is settled by opinions [253 U.S. 142, 148] of this court announced since the writ of error was sued out. Goldman et al. v. United States, 245 U.S. 474 , 38 Sup. Ct. 166; Schenck v. United States, 249 U.S. 47 , 39 Sup. Ct. 247; Frohwerk v. United States, 249 U.S. 204 , 39 Sup. Ct. 249. Also the criminality of a conspiracy to obstruct recruiting and enlistment by persuasion has been determined. Schenck v. United States, supra.
Apparently a printed form was used in preparing the jury's verdict, defendants' names and the word 'guilty' being inserted. When presented no objection was made to its form or wording, neither the motion for new trial nor in arrest of judgment indicated any such objection, and plaintiffs in error mentioned none when called upon to show cause why sentence should not be imposed. We think the intention to find a general verdict of guilty upon both counts is sufficiently plain. Evidently all parties so understood at the time. See Statler v. United States, 157 U.S. 277, 279 , 15 S. Sup. Ct. 616; Ballew v. United States, 160 U.S. 187, 197 , 16 S. Sup. Ct. 263.
Other words of the section relate to officers and persons charged with the duty of carrying the act into effect, but the quoted ones are broad enough to include nonofficial persons and, when considered in connection with the general purpose in view, there can be no reasonable doubt that plaintiffs in error were within their meaning. See Fraina et al. v. United States, 255 Fed. 28, 33, 166 C. C. A. 356.

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A railroad corporation is not liable to exemplary or punitive damages for an illegal, wanton and oppressive arrest of a passenger by the conductor of one of its trains which it has in no way authorized or ratified.
against the Lake Shore and Michigan Southern Railway Company, a corporation of Illinois, to recover damages for the wrongful acts of the defendant's servants.
released, and of which, on appearing before a justice of the peace for trial on the next day, and no one appearing to prosecute him, he was finally discharged.
The declaration alleged that all these acts were done by the defendant's agents in the line of their employment, and that the defendant was legally responsible therefor, and that the plaintiff had been thereby put to expense, and greatly injured in mind, body, and reputation.
"If you believe the statements which have been made by the plaintiff and the witnesses who testified in his behalf, and they are not denied, then he is entitled to a verdict which will fully compensate him for the injuries which he sustained, and in compensating him you are authorized to go beyond the amount that he has actually expended in employing counsel; you may go beyond the actual outlay in money which he has made. He was arrested publicly, without a warrant and without cause, and if such conduct as has been detailed before you occurred, such as the remark that was addressed by the conductor to the wife in the plaintiff's presence, in compensating him you have a right to consider the humiliation of feeling to which he was thus publicly subjected. If the company, without reason, by its unlawful and oppressive act, subjected him to this public humiliation, and thereby outraged his feelings, he is entitled to compensation for that injury and mental anguish."
"I am not able to give you any rule by which you can determine that; but bear in mind it is strictly on the line of compensation. The plaintiff is entitled to compensation in money for humiliation of feeling and spirit, as well as the actual outlay which he has made in and about this suit."
you may add something by way of punitive damages against the defendant, which is sometimes called 'smart money,' if you are satisfied that the conductor's conduct was illegal (and it was illegal), wanton, and oppressive. How much that shall be the court cannot tell you. You must act as reasonable men, and not indulge vindictive feelings toward the defendant."
"If a public corporation, like as individual, acts oppressively, wantonly, abuses power, and a citizen in that way is injured, the citizen, in addition to strict compensation, may have, the law says, something in the way of smart money; something as punishment for the oppressive use of power."
The jury returned a verdict for the plaintiff in the sum of $10,000. The defendant moved for a new trial, for error in law, and for excessive damages. The plaintiff thereupon, by leave of court, remitted the sum of $4,000, and asked that judgment be entered for $6,000. The court then denied the motion for a new trial and gave judgment for the plaintiff for $6,000. The defendant sued out this writ of error.
The only exceptions taken to the instructions at the trial, which have been argued in this Court, are to those on the subject of punitive damages.
The single question presented for our decision, therefore, is whether a railroad corporation can be charged with punitive or exemplary damages for the illegal, wanton, and oppressive conduct of a conductor of one of its trains toward a passenger.
This question, like others affecting the liability of a railroad corporation as a common carrier of goods or passengers, such as its right to contract for exemption from responsibility for its own negligence or its liability beyond its own line, or its liability to one of its servants for the act of another person in its employment, is a question not of local law, but of general jurisprudence, upon which this Court, in the absence of express statute regulating the subject, will exercise its own judgment, uncontrolled by the decisions of the courts of the several states. Railroad Co. v. Lockwood, 17 Wall. 357, 368; Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 129 U. S. 443; Myrick v. Michigan Central Railroad, 107 U. S. 102, 107 U. S. 109; Hough v. Railway Co., 100 U. S. 213, 100 U. S. 226.
of the same mind, that a jury have it in their power to give damages for more than the injury received. Damages are designed, not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself."
Wilkes v. Wood, Lofft, 1, 18-19, 19 Howell's State Trials 1153, 1167. See also Huckle v. Money, 2 Wilson 205, 207; Sayer on Damages 218, 221. The recovery of damages, beyond compensation for the injury received, by way of punishing the guilty, and as an example to deter others from offending in like manner, is here clearly recognized.
In this Court the doctrine is well settled that in actions of tort the jury, in addition to the sum awarded by way of compensation for the plaintiff's injury, may award exemplary, punitive, or vindictive damages, sometimes called "smart money," if the defendant has acted wantonly, or oppressively, or with such malice as implies a spirit of mischief or criminal indifference to civil obligations; but such guilty intention on the part of the defendant is required in order to charge him with exemplary or punitive damages. The Amiable Nancy, 3 Wheat. 546, 16 U. S. 558-559; Day v. Woodworth, 13 How. 363, 371; Philadelphia &c. Railroad Co. v. Quigley, 21 How. 202, 62 U. S. 213-214; Milwaukee & St. Paul Railway v. Arms, 91 U. S. 489, 91 U. S. 493-495; Missouri Pacific Railway v. Humes, 115 U. S. 512, 115 U. S. 521; Barry v. Edmunds, 116 U. S. 550, 116 U. S. 562-563; Rio Grande Railway v. Harris, 122 U. S. 597, 122 U. S. 609-610; Minneapolis & St. Louis Railway v. Beckwith, 129 U. S. 26, 129 U. S. 36.
judgment of this Court in the case of The Amiable Nancy, 3 Wheat. 546.
"Upon the facts disclosed in the evidence, this must be pronounced a case of gross and wanton outrage, without any just provocation or excuse. Under such circumstances, the honor of the country and the duty of the Court equally require that a just compensation should be made to the unoffending neutrals for all the injuries and losses actually sustained by them and if this were a suit against the original wrongdoers, it might be proper to go yet further and visit upon them, in the shape of exemplary damages, the proper punishment which belongs to such lawless misconduct. But it is to be considered that this is a suit against the owners of the privateer, upon whom the law has, from motives of policy, devolved a responsibility for the conduct of the officers and crew employed by them, and yet, from the nature of the service, they can scarcely ever be able to secure to themselves an adequate indemnity in cases of loss. They are innocent of the demerit of this transaction, having neither directed it nor countenanced it nor participated in it in the slightest degree. Under such circumstances, we are of the opinion that they are bound to repair all the real injuries and personal wrongs sustained by the libellants, but they are not bound to the extent of vindictive damages."
3 Wheat. 16 U. S. 558-559.
"It is true, juries sometimes very properly give what is called 'smart money.' They are often warranted in giving vindictive damages as a punishment inflicted for outrageous conduct; but this is only justifiable in an action against the wrongdoer, and not against persons who, on account of their relation to the offender, are only consequentially liable for his acts, as the principal is responsible for the acts of his factor or agent."
To the same effect are The State Rights, Crabbe 42, 47-48; The Golden Gate, McAllister 104; Wardrobe v. California Stage Co., 7 Cal. 118; Boulard v. Calhoun, 13 La.Ann. 445; Detroit Post Co. v. McArthur, 16 Mich. 447; Grund v. Van Vleek, 69 Ill. 478, 481; Becker v. Dupree, 75 Ill. 167; Rosenkrans v. Barker, 115 Ill. 331; Kirksey v. Jones, 7 Ala. 622, 629; Pollock v. Gantt, 69 Ala. 373, 379; Eviston v. Cramer, 57 Wis. 570; Haines v. Schultz, 50 N.J.Law 481; McCarthy v. De Armit, 99 Penn.St. 63, 72; Clark v. Newsam, 1 Exch. 131, 140; Clissold v. Machell, 26 Upper Canada Q.B. 422.
The rule has the same application to corporations as to individuals. This Court has often, in cases of this class as well as in other cases, affirmed the doctrine that for acts done by the agents of a corporation in the course of its business and of their employment, the corporation is responsible in the same manner and to the same extent as an individual is responsible under similar circumstances. Philadelphia &c. Railroad Co. v. Quigley, 21 How. 202, 62 U. S. 210; National Bank v. Graham, 100 U. S. 699, 100 U. S. 702; Salt Lake City v. Hollister, 118 U. S. 256, 118 U. S. 261; Denver & Rio Grande Railway v. Harris, 122 U. S. 597, 122 U. S. 608.
"The logical difficulty of imputing the actual malice or fraud of an agent to his principal is perhaps less when the principal is a person than when it is a corporation; still, the foundation of the imputation is not that it is inferred that the principal actually participated in the malice or fraud, but, the act having been done for his benefit by his agent acting within the scope of his employment in his business, it is just that he should be held responsible for it in damages."
Lothrop v. Adams, 133 Mass. 471, 480-481.
21 Vroom (50 N.J.Law) 484-485. Whether a principal can be criminally prosecuted for a libel published by his agent without his participation is a question on which the authorities are not agreed, and where it has been held that he can, it is admitted to be an anomaly in the criminal law. Commonwealth v. Morgan, 107 Mass. 199, 203; Regina v. Holbrook, 3 Q.B.D. 60, 63-64, 70, 4 Q.B.D. 42, 51, 60.
No doubt, a corporation, like a natural person, may be held liable in exemplary or punitive damages for the act of an agent within the scope of his employment, provided the criminal intent, necessary to warrant the imposition of such damages, is brought home to the corporation. Philadelphia &c. Railroad v. Quigley, Milwaukee & St. Paul Railway v. Arms, and Denver & Rio Grande Railway v. Harris, above cited; Caldwell v. New Jersey Steamboat Co., 47 N.Y. 282; Bell v. Midland Railway, 10 C.B. (N.S.) 287, 4 Law Times (N.S.) 293.
Independently of this, in the case of a corporation, as of an individual, if any wantonness or mischief on the part of the agent, acting within the scope of his employment, causes additional injury to the plaintiff in body or mind, the principal is, of course, liable to make compensation for the whole injury suffered. Kennon v. Gilmer, 131 U. S. 22; Meagher v. Driscoll, 99 Mass. 281, 285; Smith v. Holcomb, 99 Mass, 552; Hawes v. Knowles, 114 Mass. 518; Campbell v. Pullman Car Co., 42 F. 484.
In the case at bar, the defendant's counsel having admitted in open court "that the arrest of the plaintiff was wrongful, and that he was entitled to recover actual damages therefor," the jury were rightly instructed that he was entitled to a verdict which wound fully compensate him for the injuries sustained, and that, in compensating him, the jury were authorized to go beyond his outlay in and about this suit, and to consider the humiliation and outrage to which he had been subjected by arresting him publicly without warrant and without cause, and by the conduct of the conductor, such as his remark to the plaintiff's wife.
jury that, "after agreeing upon the amount which will fully compensate the plaintiff for his outlay and injured feelings," they might "add something by way of punitive damages against the defendant, which is sometimes called smart money,'" if they were "satisfied that the conductor's conduct was illegal, wanton, and oppressive."
The jury were thus told in the plainest terms that the corporation was responsible in punitive damages for wantonness and oppression on the part of the conductor, although not actually participated in by the corporation. This ruling appears to us to be inconsistent with the principles above stated, unsupported by any decision of this Court, and opposed to the preponderance of well considered precedents.
In Philadelphia & Reading Railroad v. Derby, which was an action by a passenger against a railroad corporation for a personal injury suffered through the negligence of its servants, the jury were instructed that "the damages, if any were recoverable, are to be confined to the direct and immediate consequences of the injury sustained," and no exception was taken to this instruction. 14 How. 55 U. S. 470-471.
"they are not restricted in giving damages to the actual positive injury sustained by the plaintiff, but may give such exemplary damages, if any, as in their opinion are called for and justified in view of all the circumstances in this case, to render reparation to the plaintiff, and act as an adequate punishment to the defendant."
"For acts done by the agents of the corporation, either in contractu or in delicto, in the course of its business and of their employment, the corporation is responsible, as an individual is responsible under similar circumstances."
contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act. The word implies that the act complained of was conceived in the spirit of mischief, or criminal indifference to civil obligations. Nothing of this kind can be imputed to these defendants.
21 How. 53 U. S. 210, 62 U. S. 213, 214.
"If you find that the accident was caused by the gross negligence of the defendant's servants controlling the train, you may give the plaintiff punitive or exemplary damages."
"whether called 'gross' or 'ordinary' negligence, did not authorize the jury to visit the company with damages beyond the limit of compensation for the injury actually inflicted. To do this, there must have been some willful misconduct or that entire want of care which would raise the presumption of a conscious indifference to consequences. Nothing of this kind can be imputed to the persons in charge of the train, and the court therefore misdirected the jury."
91 U.S. 91 U. S. 495.
was found that the defendant acted with bad intent and in pursuance of an unlawful purpose to forcibly take possession of the railway occupied by the other company, and in so doing shot the plaintiff."
This Court, speaking by MR. JUSTICE HARLAN, quoted and approved the rules laid down in Quigley's Case and affirmed the judgment not because any evil intent on the part of the agents of the defendant corporation could of itself make the corporation responsible for exemplary or punitive damages, but upon the single ground that the evidence clearly showed that the corporation, by its governing officers, participated in and directed all that was planned and done. 122 U.S. 122 U. S. 610.
The president and general manager, or, in his absence, the vice-president in his place, actually wielding the whole executive power of the corporation, may well be treated as so far representing the corporation and identified with it that any wanton, malicious, or oppressive intent of his, in doing wrongful acts in behalf of the corporation to the injury of others, may be treated as the intent of the corporation itself; but the conductor of a train, or other subordinate agent or servant of a railroad corporation, occupies a very different position, and is no more identified with his principal, so as to affect the latter with his own unlawful and criminal intent, than any agent or servant standing in a corresponding relation to natural persons carrying on a manufactory, a mine, or a house of trade or commerce.
"punitive or vindictive damages, or smart money, were not to be allowed as against the principal unless the principal participated in the wrongful act of the agent, expressly or impliedly, by his conduct authorizing it or approving it, either before or after it was committed."
punitive or exemplary damages have been assessed, it has been done upon evidence of such willfulness, recklessness, or wickedness on the part of the party at fault as amounted to criminality, which for the good of society and warning to the individual ought to be punished. If in such cases, or in any case of a civil nature, it is the policy of the law to visit upon the offender such exemplary damages as will operate as punishment and teach the lesson of caution to prevent a repetition of criminality, yet we do not see how such damages can be allowed where the principal is prosecuted for the tortious act of his servant, unless there is proof in the cause to implicate the principal and make him particeps criminis of his agent's act. No man should be punished for that of which he is not guilty. . . . Where the proof does not implicate the principal, and, however wicked the servant may have been, the principal neither expressly nor impliedly authorizes or ratifies the act and the criminality of it is as much against him as against any other member of society, we think it is quite enough that he shall be liable in compensatory damages for the injury sustained in consequence of the wrongful act of a person acting as his servant."
Hagan v. Providence & Worcester Railroad, 3 R.I. 88. 91.
master, within the scope of his employment, the latter is liable for compensatory damages; but for such negligence, however gross or culpable, he is not liable to be punished in punitive damages unless he is also chargeable with gross misconduct. Such misconduct may be established by showing that the act of the servant was authorized or ratified, or that the master employed or retained the servant, knowing that he was incompetent, or, from bad habits, unfit for the position he occupied. Something more than ordinary negligence is requisite; it must be reckless, and of a criminal nature, and clearly established. Corporations may incur this liability as well as private persons. If a railroad company, for instance, knowingly and wantonly employs a drunken engineer or switchman, or retains one after knowledge of his habits is clearly brought home to the company, or to a superintending agent authorized to employ and discharge him, and injury occurs by reason of such habits, the company may and ought to be amendable to the severest rule of damages; but I am not aware of any principle which permits a jury to award exemplary damages in a case which does not come up to this standard, or to graduate the amount of such damages by their views of the propriety of the conduct of the defendant unless such conduct is of the character before specified."
Cleghorn v. New York Central Railroad, 56 N.Y. 44, 47-48.
Similar decisions, denying upon like grounds the liability of railroad companies and other corporations sought to be charged with punitive damages for the wanton or oppressive acts of their agents or servants, not participated in or ratified by the corporation, have been made by the courts of New Jersey, Pennsylvania, Delaware, Michigan, Wisconsin, California, Louisiana, Alabama, Texas, and West Virginia.
with the later decisions in Fay v. Parker, 53 N.H. 342, and Bixby v. Dunlap, 56 N.H. 456, and in Goddard v. Grand Trunk Railway, 57 Maine, 202, 228, and Atlantic & Great Western Railway v. Dunn, 19 Ohio St. 162, 590, there were strong dissenting opinions. In many, if not most, of the other cases, either corporations were put upon different grounds in this respect from other principals or else the distinction between imputing to the corporation such wrongful act and intent as would render it liable to make compensation to the person injured and imputing to the corporation the intent necessary to be established in order to subject it to exemplary damages by way of punishment was overlooked or disregarded.
Most of the cases on both sides of the question, not specifically cited above, are collected in 1 Sedgwick on Damages, 8th ed.,§ 380.
Judgment must be reversed and the case remanded to the circuit court with directions to set aside the verdict, and to order a new trial.
MR. JUSTICE FIELD, MR. JUSTICE HARLAN, and MR. JUSTICE LAMAR took no part in this decision.

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“Let’s Not Go Crazy” About Lenz v. Universal Music Corp. et al.
In a highly anticipated decision, on September 14, 2015, the Ninth Circuit in Lenz v. Universal Music Corp. et al. ruled that copyright holders must consider fair use prior to sending a takedown notice under the DMCA or they may run the risk of being held liable for nominal damages under 17 U.S.C. § 512(f). Yet, what implications does this decision have for copyright holders, who are already struggling to enforce their rights as the Internet and technology rapidly progresses? Although the decision mandates that copyright holders partake in a fair use inquiry prior to issuing a takedown notice, which technically-speaking is an added step, many copyright holders, particularly those who have engaged the regular aid of a legal team, already take this step and thus, this ruling is not as onerous as it may seem at first glance.
Specifically, the case involves a twenty-nine second home video of Plaintiff Stephanie Lenz’s two children dancing to Prince’s “Let’s Go Crazy”. Plaintiff had initially posted the video to YouTube, but it was taken down after YouTube received a takedown notification from the legal department at Universal. Although Universal’s legal department monitored YouTube daily and assessed what videos should be taken down based on specified guidelines, the key inquiry is whether or not Universal considered fair use, which, now after the Ninth’s Circuit affirmed the denial of the parties’ cross-motions for summary judgment, is a question for the jury.
Importantly, the Ninth Circuit held that Universal, along with all other copyright holders, must consider fair use prior to issuing a takedown notification, as 17 U.S.C. § 512(c)(3)(A)(v) requires a takedown notification to include a “statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”, and the Court held that fair use is a use authorized by law through 17 U.S.C § 107. Yet, the Court explicitly noted that a copyright holder need only form a subjective good faith belief that the use is not fair and that the consideration of fair use need not be “searching or intensive”. A copyright holder only faces liability for nominal damages if it makes a knowing misrepresentation in its takedown notification that it has a good faith belief that the use is not fair or otherwise authorized by the law.
Further, the Court noted that the consideration of fair use through automated computer programs, coupled with the review of any remaining information by some sort of legal department like that employed by Universal, may be acceptable. Thus, although copyright holders are faced with an overabundance of content to sift through, automated computer systems may help to ease this burden. As the Court aptly notes, Section §512(c) of the DMCA already requires copyright owners to initially review potentially infringing content prior to sending a takedown notice and as such, the Court’s decision serves to clarify that the fair use inquiry must be part of that initial review.
UPDATE: On Tuesday, October 20, 2015, both parties filed petitions for rehearing. On the one hand, Plaintiff/Appellee Stephanie Lenz has petitioned the Ninth Circuit to address the question of “Whether Congress, in drafting the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”), intended to grant private parties the practical power to censor speech based on an unreasonable belief that a copyright has been infringed, as long as that belief is (like all beliefs) subjectively held” (emphasis added). Meanwhile, on the other hand, Universal has petitioned for rehearing to address whether or not Lenz in fact suffered an injury-in-fact sufficient to give rise to jurisdictional standing.
Another battle in the war between file-sharing websites and the the music and film studios. Veoh Networks, owner and operator of the ‘Veoh’ media-hosting website, has won its latest battle against Universal Music Group. Universal had filed suit for copyright infringement claiming that the Veoh website – on which users can post video and music clips – contained infringing material, and that Veoh had stored the infringing clips. Veoh denied the claims arguing that it had complied with the requirements for ‘safe harbor’ protection given to internet providers and websites under the Digital Millennium Copyright Act (DMCA) because it acted quickly to remove material when an allegation of infringement was received, and that it did not have ‘actual knowledge’ that the materials in question were infringing.
Finding that Veoh Networks was entitled to the protection afforded by the ‘safe harbor’ provisions of the Digital Millennium Copyright Act (DMCA), the Ninth Circuit Court of Appeals sided with Veoh. Judge Raymond C. Fisher for the Court stated that “merely hosting a category of copyrightable content, such as music videos, with the general knowledge that one’s services could be used to share infringing material, is insufficient” to establish liability for copyright infringement on the part of the website. As such, Veoh did not have the “substantial influence on the activities of users” for a finding of liability.
Anchors Away! No More Safe Harbors for Pre-1972 Sound Recordings!
Ahoy! Calling owners of copyrights in sound recordings fixed prior to February 15, 1972! According to the New York Supreme Court, Appellate Division in its April 23, 2013 decision (UMG Recordings, Inc. v. Escape Media Group, Inc.), it’s going to be hard for infringers of these works to stay Afloat using the DMCA Safe Harbor provisions.
In 2012, Universal Music Group (UMG) sued Escape Media Group, Inc. (parent company of Grooveshark, an Internet-based music streaming service), for the common law copyright infringement of UMG’s pre-1972 sound recordings which had been uploaded to Grooveshark. Escape’s defense was that as an ISP, it is shielded from liability for infringement by the section 512(c) of the DMCA (safe harbors). UMG’s primary argument was that the DMCA’s safe harbors didn’t apply to pre-1972 sound recordings, because those recordings are not covered by the Copyright Act (which was amended in 1971 to include sound recordings fixed before February 15, 1972).
Refusing to Walk the Plank, UMG appealed and, as of Tuesday, it appears that the Appellate Division has Jumped Ship, Capsizing the decision of the trial court. In its opinion, the court accepted UMG’s argument that if the DMCA were to apply as Escape argued, it would directly violate section 301 (C) of the Copyright Act, which expressly extended federal copyright protection only to recordings fixed AFTER February 15, 1972 – “[w]ith respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this Title until 2067″. If the DMCA were to apply to a pre-1972 sound recording, the owner would no longer be able to sue under the common law or statutes of any State; the only remedy available would be service of a takedown notice on the infringer – i.e. a LIMITATION on the owner’s remedies.
For the court to find in favor of Escape, it would have to conclude that Congress intended to modify section 301(c) when it enacted the DMCA. However, as the court stated, statutes are not deemed to repeal earlier ones without express words of repeal, and the DMCA could not be held to repeal section 301(c) of the Copyright Act, especially in light of the fact that the statutes can reasonably co-exist. Congress explicitly separated the universe of sound recordings into two categories – one for works “fixed” after February 15, 1972, to which it granted federal copyright protection, and one for those fixed before that date, to which it did not. Accordingly, absent anything in the Copyright Act itself, or its legislative history, it was clear to the court that Congress meant to apply the DMCA to the former category, but not to the latter.
Reading the Copyright Act as a whole, as is required, the court interpreted the DMCA’s references to “copyright” and “copyright infringer” to specifically refer to those works that are covered by the DMCA – i.e. post-1972 works.
To insulate pre-1972 sounds recordings from federal regulation.
In the final line of the decision, the court Baited Congress to clarify its intent: “[u]nder such circumstances, it would be far more appropriate for Congress, if necessary, to amend the DMCA to clarify its intent, than for this Court to do so by fiat”.
Looks like it’s a Pirates’ Life for Escape… New York State has thrown a Line out to all pre-1972 copyright holders, and the implications may really keep common law copyright infringement claims Flooding in. But the real question is whether it will be All Hands on Deck in Congress to re-Navigate the murky wording of the DMCA.
In other “Maritime” news… Fleet week in New York has been cancelled this year. It appears that this concrete jungle is really Weighing Anchor and washing anything left in the Harbors out to Sea.