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Matt Becker focuses his practice on litigating of patent, copyright, and trademark disputes. Matt has successfully represented plaintiffs and defendants in numerous patent litigations as lead and co-counsel in a wide range of technologies.
Each year from 2013-2018, Matt was named an Illinois Super Lawyers in Intellectual Property Litigation after being named a Rising Star from 2008-2012. The Super Lawyers list represents the top 5% of in Illinois as chosen through a peer balloting process and through the independent research of Thomson Reuters. Since 2016, Matt has yearly been named in the list of Leading Lawyers by the Leading Lawyer Network.
Integra Lifesciences Corp. v. Hyperbranch Medical Technology, Inc., 15-819-LPS (D. Del.) (patent litigation involving medical devices).
Ficep Corp. v. Voortman USA Corp., Civ. No. MJG-13-0429, 2017 WL 480753 (D. Md. Feb. 6, 2017) (decision on summary judgment motions in patent litigation involving steel fabricating process).
Mouldtec, Inc. v. Pagter & Partners Int’l, No. 12-c-4249, 2015 WL 5755522 (Sept. 29, 2015) (granting summary judgment of noninfringement in declaratory judgment action).
In re Certain Toner Cartridges and Components Thereof, Inv. No. 337-TA-740 (U.S.I.T.C. Sept. 27, 2011) (obtaining determination of violation of Section 337 and issuance of general exclusion order).
Zamora Radio LLC v. Pandora Media, Inc., 758 F.Supp.2d 1258 (S.D. Fla. 2010) (obtaining summary judgment of noninfringement).
Kimberly-Clark Worldwide, Inc. v. First Quality Baby Products, LLC, 2010 WL 2025100 (E.D. Wis. May 20, 2010) (obtaining preliminary injunction on four process patents).
MOAEC, Inc. v. Pandora Media, Inc., 607 F.Supp.2d 980 (W.D. Wis. 2009) (obtaining summary judgment of noninfringement).
Static Control Components Inc. v. Lexmark Int’l Inc., 615 F.Supp.2d 575 (E.D. Ky. 2009).
Pitney Bowes, Inc. v. Kern Int’l Inc., 239 F.R.D. 62 (D. Conn. 2006).
PNA Construction Techs., Inc. v. McTech Group Inc. et al, No. 1:05-CV-1753-WSD, 2006 WL 304052 (N.D. Ga. 2006) (obtaining preliminary injunction).
Automotive Tech. Int’l v. BMW of North America, Inc. et al, 378 F.Supp.2d 780 (E.D.Mich.2005) (obtaining summary judgment of invalidity).
Lisle Corp. v. AJ Mfg. Inc., 289 F.Supp.2d 1048 (N.D. Ill. 2003) aff’d 398 F.3d 1306 (Fed. Cir. 2005) (affirming summary judgment of infringement and denial of JMOL following jury trial on invalidity).
Benedict v. General Motors Corp., 184 F.Supp.2d 1197 (N.D. Fla. 2002) (obtaining summary judgment of invalidity).
John Donovan Enterprises-FL, Inc. v. Allied Plastics, Inc. 3:00-cv-00272 (W.D. Wisc.) (jury found patent infringed and awarded damages).
Allied Tube and Conduit Corp. v. John Maneely Co., 125 F.Supp.2d 987 (D. Ariz. 2000) (obtaining preliminary injunction).
Whatley v. Nike Inc., 54 U.S.P.Q.2d 1124 (D. Or. 2000).
Lampi Corp. v. American Power Prods. Inc., 52 USPQ2d 1733 (N.D. Ill. 1999) aff’d in part 228 F.3d 1365 (Fed. Cir. 2000) (affirming findings of noninfringement following bench trial).
Aero Industries Inc. v. John Donovan Enterprises-Florida Inc., 80 F.Supp.2d 963 (S.D. Ind. 1999) (obtaining preliminary injunction).
Matt graduated, with distinction, from Purdue University in 1995, earning a B.S. degree in Chemical Engineering while in the Honors Program. Matt was also inducted into the Tau Beta Pi Engineering Honor Society. In 1998, Matt earned his law degree from Northwestern University School of Law. Matt is a registered patent attorney and is admitted to practice in Illinois and numerous federal district courts.
Matt practices in the Chicago office of Banner & Witcoff, Ltd.
10.16.2015 | WITCON 2015 – Banner & Witcoff’s Corporate Intellectual Property Seminar in Chicago, IL.

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Under both Acts, any person may commence an action in court to stop or to prevent violations or threatened violations of the open meeting laws, to determine the applicability of the Acts to past actions or threatened future actions by the state body or the legislative body of a local agency, to determine whether any rule or action by the state body or legislative body of the local agency to penalize or discourage the expression of its members is legal, or to compel the state body or legislative body of the local agency to tape record its closed sessions. Cal. Gov't Code §§ 11130, 11130.3(a) (Bagley-Keene Act); 54960(a), 54960.2 (Brown Act). Under the Brown Act, a predicate to an action to determine the application of the Act to any past action is a timely cease and desist letter. Cal. Gov’t Code § 54960.2.
Additionally, mandamus or injunctive relief is available to declare as null and void action taken in violation of the Brown Act, Sections 54953 (open and public meetings), 54954.2 (posting of agenda), 54954.5 (description requirements for closed sessions), 54954.6 (public meeting in general tax or assessment of notice thereof), 54956 (special meetings and notice thereof), or 54956.5 (emergency meeting rules). Cal. Gov't Code § 54960.1(a). A predicate to such action under the Brown Act is a timely demand to cure or correct the violation. Cal. Gov’t Code § 54960.1(b).
Similarly, mandamus or injunctive relief is available to declare as null and void an action in violation of the Bagley-Keene Act, Sections 11123 (open meetings) and 11125 (notice of meetings). There is no requirement to serve a cure and correct demand letter in advance of suit.
Colo. Rev. Stat. § 24-6-402(9) provides that upon the application of "any citizen" of the State of Colorado, an injunction may be issued by any court of record to enforce the purposes of the Sunshine Law. See Bagby v. School District No. 1, 186 Colo. 428, 528 P.2d 1299 (1974).
An individual denied access to a meeting may appeal to the Superior Court following an adverse ruling by the FOIC.
The meetings portion of the Act contemplates an action in the Court of Chancery. 29 Del. C. § 10005(a). However, in the interest of judicial economy, the Superior Court may entertain certain actions under the Act as well. See Beebe Medical Ctr. v. Certificate of Need Appeals Bd., 1995 WL 465318 (Del. Super. June 30, 1995), aff'd, 676 A.2d 900 (Del. 1996) (TABLE).
The state circuit courts have jurisdiction to enforce the Sunshine Law by injunction or other appropriate remedy. Haw. Rev. Stat. § 92-12(b). Suits should be commenced in the circuit court of the circuit in which the prohibited act occurred. Id. § 92-12(c).
Any person affected by a violation of the provisions of the Open Meetings Law may commence a civil action in the magistrate division of the district court of the county in which the public agency ordinarily meets, for the purpose of requiring compliance with provisions of the Open Meetings Law. Idaho Code § 74-208(6).
Redress is sought directly in circuit court.
The statute permits lawsuits to be filed in any court of competent jurisdiction in the state. Ind. Code § 15-14-1.5-7(a). There are no administrative remedies to be exhausted. Indeed, the statute explicitly provides that a person or public agency is not required to file a complaint with the Public Access Counselor before seeking judicial remedy. Ind. Code § 5-14-5-4. However, it is advisable to make either a formal complaint or informal inquiry with the counselor, as failure to do so bars collection of attorney fees, with narrow exceptions. Ind. Code § 5-14-1.5-7(f); see Gary/Chicago Airport Bd. of Auth. v. Maclin, 772 N.E.2d 463, 471–72 (Ind. App. 2002) (upholding grant of attorney fees after filing of formal complaint to the Public Access Counselor); Hinojosa v. Hammond Bd. of Pub. Works & Safety, 789 N.E.2d 533, 548–49 (Ind. App. 2003) (because appellant’s suit against the government was necessary to prevent current and further violations of the Indiana Open Door Law, award of attorney fees to appellant under IC 5-14-1.5-7(f) was proper, despite appellant’s failure to obtain an advisory opinion from the public access counselor prior to filing for relief).
Jurisdiction to enforce purposes of act vested in district court. K.S.A. 75-4320a.
The complaining party or the agency has 30 days after the Attorney General renders his or her decision to appeal the decision. Ky. Rev. Stat. 61.846(4)(a). If not timely appealed, the Attorney General's decision "shall have the force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or where the alleged violation occurred." Ky. Rev. Stat. 61.846(4)(b).
A complaining party has the option of bypassing the Attorney General and bringing an original action in Circuit Court. A party may not, however, simultaneously seek the Attorney General's review of a complaint while pursuing an action in Circuit Court. In such a case, the Attorney General will refuse to issue an opinion. See 93-OMD-81 ("a person cannot seek relief from this office under Ky. Rev. Stat. 61.846 when the same and additional questions are currently pending before a circuit court").
Court review is available but there are no administrative remedies.
The Act specifically provides for a petition to be filed with the circuit court by a person adversely affected by a public body's failure to comply with the Act. § 3-401(b). A party need not exhaust administrative remedies before bringing its complaint. Suburban Hospital Inc. v. Maryland Health Resources Planning Comm'n., 125 Md. App. 579, 600, 726 A.2d 807, 817, n.8 (1999).
"Any citizen of this state" may sue in district court in the county in which the public body meets to seek compliance with Open Meetings Act. Neb. Rev. Stat. §84-1414(3).
Any person or the Attorney General may file suit to have an action taken by a public body declared void or to require compliance with the OML. NRS 241.037.
Any person may enforce the purpose of the Open Meetings Act by injunction or mandamus or other appropriate order by suit in the District Court. NMSA 1978 § 10-15-3(C).
G.S. § 143-318.16A, which was added to the Open Meetings Law by the General Assembly in 1985, provides that a suit seeking a declaratory judgment under the Open Meetings Law must be filed in Superior Court. In view of the likelihood that suits brought pursuant to the Open Meetings Law are likely to seek both an injunction and a declaratory judgment, suits brought to enforce the Open Meetings Law generally will be filed in Superior Court.
Injunction. Ohio Rev. Code § 121.22(I)(1).
Mandamus. State ex rel. Inskeep v. Staten, 74 Ohio St.3d 676, 660 N.E.2d 1207 (1996). State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990).
Invalidation of action taken in or resulting from a session closed in violation of the statute. Ohio Rev. Code § 121.22(H).
The Oklahoma Open Meeting Act confers a private right of action on the part of any member of the general public who claims to be aggrieved by the actions of a public body. Rabin v. Bartlesville Redevelopment Trust Authority, 2013 OK CIV APP 72.
Persons aggrieved as a result of violations of the OML may file a complaint in the Superior Court. R.I. Gen. Laws § 42-46-8(c).
A suit may be filed in the Court of Common Pleas seeking a declaratory judgment that the law has been violated and injunctive relief. S.C. Code Ann. § 30-4-100.
The South Dakota Supreme Court and circuit courts have concurrent jurisdiction in mandamus, prohibition or injunction actions. In addition, depending on the circumstances, a declaratory judgment action may be appropriate.
A party can file suit in the applicable district court or county court and include with it an application for an injunction. See Tex. Gov’t Code § 551.142. A party can also make an application for a writ of mandamus and file it in the appropriate appellate court, including a court of appeals or the Supreme Court of Texas. Tex. R. App. P. 52.1.
Any person denied access to a meeting in violation of the Open Meetings Act may commence suit “to compel compliance with or enjoin violations of this chapter” or to “determine the chapter’s applicability to discussions or decisions of a public body.” Utah Code § 52-4-303(3).
The only statutory procedure for asserting a right of access under the Open Meetings Act is a petition filed in circuit court pursuant to W. Va. Code §§ 6-9A-3 and 6. It is also possible that one may assert a right of access in a common law mandamus or prohibition proceeding.
Wyo. Stat. § 16-4-203 directs a person denied access to records to apply to the district court of the district where the record is found. Presumably, one seeking access would apply to the district court of the district where the meeting took place.


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The corporate data protection officer of RWBIP, Mrs. Tiegelkamp, is reachable under info@stewari.de.
The legal basis for data processing is Art. 6 para. 1 sentence 1 lit. f GDPR. Our legitimate interest follows from the data collection purposes listed above. In no case we use the collected data for the purpose of drawing conclusions about you.
The data processing for the purpose of contacting us is based on Art. 6 para. 1 sentence 1 lit. a GDPR based on your voluntarily granted consent.
Thislit permitted by law and pursuant to Art. 6 para. 1 sentence 1. b GDPR is required for the settlement of contractual relationships with you.
The processed through cookies data for said purposes to protect our legitimate interests as well as third parties under Art. 6 para. 1 sentence 1 lit. f GDPR required.
In addition, the use of Google Maps and information obtained through Google Maps is governed by the Google Terms of Service and the Google Maps Terms of Service.
The legal basis is Art. 6 para. 1 lit. f) GDPR. Our legitimate interest in the security of our website and in the defense of unwanted, automated requests in the form of spam or similar ..
according to Art. 77 GDPR to complain to a supervisory authority.As a rule, you can contact the supervisory authority of your usual place of residence or work or our office.
Lit If your personal data on the basis of legitimate interests in accordance with Art. 6 para. 1 sentence 1. f GDPR are processed, you have the right to file an objection against the processing of your personal data in accordance with Art. 21 GDPR, provided that there are reasons for this arising from your particular situation or the objection is directed against direct mail. In the latter case, you have a general right of objection, which is implemented by us without specifying any particular situation.
We also take appropriate technical and organizational security measures to protect your data against accidental or intentional manipulation, partial or total loss, destruction or against unauthorized access by third parties . Our security measures are continuously improved in line with technological developments.

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L.D. 160, An Act to Amend the Laws Governing Home Instruction, was approved by the 121st Maine Legislature and signed by Governor Baldacci on May 16, 2003. This information sheet details the changes and how to comply with the law.
Maine's Chapter 130 are the rules for equivalent instruction through home instruction. This is a detailed analysis of the options available to parents who choose to educate their children at home.
The Home School Legal Defense Association provides a brief summary of the homeschooling laws in Maine. Includes a link to a legal analysis of laws relating to homeschooling in Maine.
We've decided to homeschool...now what do we do?
This page covers the technical aspect of homeschooling. This is a basic description of the legal ways to homeschool in Maine.
3. Alternatives to attendance at public day school. Alternatives to attendance at public day school are as follows. A. Equivalent instruction alternatives are as follows. (1) A person is excused from attending a public day school if the person obtains equivalent instruction in: (a) A private school approved for attendance purposes pursuant to section 2901; (b) A private school recognized by the department as providing equivalent instruction; (c-1) A home instruction program that complies with the requirements of subparagraph (4); or (d) Any other manner arranged for by the school board and approved by the commissioner. (2) A student is credited with attendance at a private school only if a certificate showing the name, residence and attendance of the person at the school, signed by the person or persons in charge of the school, has been filed with the school officials of the administrative unit in which the student resides. (4) The following provisions govern a home instruction program. (a) The student's parent or guardian shall provide a written notice of intent to provide home instruction simultaneously to the school officials of the administrative unit in which the student resides and to the commissioner within 10 calendar days of the beginning of home instruction. The notice must contain the following information: (i) The name, signature and address of the student's parent or guardian; (ii) The name and age of the student; (iii) The date the home instruction program will begin; (iv) A statement of assurance that indicates the home instruction program will provide at least 175 days annually of instruction and will provide instruction in the following subject areas: English and language arts, math, science, social studies, physical education, health education, library skills, fine arts and, in at least one grade from grade 6 to 12, Maine studies. At one grade level from grade 7 to 12, the student will demonstrate proficiency in the use of computers; and (v) A statement of assurance that indicates that the home instruction program will include an annual assessment of the student's academic progress that includes at least one of the forms of assessment described in division (b). (b) On or before September 1st of each subsequent year of home instruction, the student's parent or guardian shall file a letter with the school officials of the administrative unit in which the student resides and the commissioner stating the intention to continue providing home instruction and enclose a copy of one of the following forms of annual assessment of the student's academic progress: (i) A standardized achievement test administered through the administrative unit in which the student resides or through other arrangements approved by the commissioner. If the test is administered through the administrative unit in which the student resides, that administration must be agreed to by the school officials of the administrative unit prior to submission of the written notice of intent to provide home instruction; (ii) A test developed by the school officials of the administrative unit in which the student resides appropriate to the student's home instruction program, which must be agreed to by the school officials of the administrative unit prior to submission of the written notice of intent to provide home instruction; (iii) A review and acceptance of the student's progress by an identified individual who holds a current Maine teacher's certificate; (iv) A review and acceptance of the student's progress based on, but not limited to, a presentation of an educational portfolio of the student to a local area homeschooling support group whose membership for this purpose includes a currently certified Maine teacher or administrator; or (v) A review and acceptance of the student's progress by a local advisory board selected by the superintendent of the administrative unit in which the student resides that includes one administrative unit employee and 2 home instruction tutors. For the purpose of this subdivision, a "home instruction tutor" means the parent, guardian or other person who acts or will act as a primary teacher of the student in the home instruction program. This provision must be agreed to by the school officials of the administrative unit in which the student resides prior to submission of the written notice of intent to provide home instruction. (c) Dissemination of any information filed under this subparagraph is governed by the provisions of section 6001; the federal Family Educational Rights and Privacy Act of 1974, 20 United States Code, Section 1232g (2002); and the federal Education for All Handicapped Children Act of 1975, 20 United States Code, Sections 1401 to 1487 (2002), except that "directory information," as defined by the federal Family Educational Rights and Privacy Act of 1974, is confidential and is not subject to public disclosure unless the parent or guardian specifically permits disclosure in writing or a judge orders otherwise. Copies of the information filed under this subparagraph must be maintained by the student's parent or guardian until the home instruction program concludes. The records must be made available to the commissioner upon request. (d) If the home instruction program is discontinued, students of compulsory school age must be enrolled in a public school or an equivalent instruction alternative as provided for in this paragraph. The receiving school shall determine the placement of the student. At the secondary level, the principal of the receiving school shall determine the value of the prior educational experience toward meeting the standards of the system of learning results as established in section 6209. (e) The commissioner shall amend or adopt rules to accomplish the purposes of this subparagraph. Rules adopted pursuant to this division are major substantive rules as defined in Title 5, chapter 375, subchapter 2-A.
§5021. Participation in public schools by students enrolled in equivalent instruction programs.
A school administrative unit shall conform to the following standards in making public school resources and services available to a student enrolled in a home instruction program under section 5001-A, subsection 3, paragraph A, subparagraph (4) for a student otherwise eligible to attend school in that school administrative unit. [2003, c. 181, §2 (amd).] 1. Participation in regular classes. A student receiving home instruction may enroll in specific day school classes at the appropriate public school if each of the following conditions is met. A. The student or the student's parent or guardian, on the student's behalf, applies in writing to and receives written approval from the superintendent or the superintendent's designee. Approval may not be unreasonably withheld. [1995, c. 610, §1 (new).] B. The student can demonstrate prior satisfactory academic achievement consistent with school unit policy and procedures applicable to all students. [1995, c. 610, §1 (new).] C. The student shall comply with behavioral, disciplinary, attendance and other classroom rules applicable to all students. If a student fails to comply, the school may withhold credit or terminate participation. [1995, c. 610, §1 (new).] D. Transportation must be provided by the parent or guardian or student. The student may use the same transportation as all other students in the school unit, as long as additional expenses are not incurred. [1995, c. 610, §1 (new).] E. The student shall complete all assignments and tests as required of all students in the class. [1995, c. 610, §1 (new).] F. A home-schooled student may audit a course in accordance with established local policy at the appropriate public school under the following conditions. (1) The student or the student's parent or guardian, on behalf of the student, applies in writing to and receives written approval from the superintendent or the superintendent's designee to audit a specific course or courses. Participation may not be unreasonably withheld. (2) The student agrees to meet established behavioral, disciplinary, attendance and other classroom rules applicable to all students. If a student fails to comply, the school may terminate participation. [1995, c. 610, §1 (new).] [1995, c. 610, §1 (new).] 2. Academic credit. A student receiving home-school instruction must receive academic credit subject to the following requirements. A. Academic credit for individual courses must be awarded if the student meets required academic standards applicable to all students enrolled in the same course. [1995, c. 610, §1 (new).] B. Academic credit must be awarded for successful completion of alternative instruction opportunities sponsored by the school and available to all students. [1995, c. 610, §1 (new).] [1995, c. 610, §1 (new).] 3. Special education services. A student receiving home-school instruction is eligible for special education services, as provided under federal regulations, in accordance with section 5001-A and relevant department procedures and standards. [1995, c. 610, §1 (new).] 4. Participation in cocurricular activities. A student receiving home-school instruction is eligible to participate in cocurricular activities sponsored by the local school unit provided the following requirements are met. A. The student or the student's parent or guardian, on behalf of the student, applies in writing to and receives written approval from the principal of the school or the principal's designee. Participation may not be unreasonably withheld. [1995, c. 610, §1 (new).] B. The student agrees to meet established behavioral, disciplinary, attendance and other rules applicable to all students. [1995, c. 610, §1 (new).] [1995, c. 610, §1 (new).] 5. Participation in extracurricular activities. Students receiving home-school instruction are eligible to try out for extracurricular activities sponsored by the local school unit, provided the student applies in writing, if the following requirements are satisfied. A. The student agrees to abide by equivalent rules of participation as are applicable to regularly enrolled students participating in the activity and provides evidence that the rules of participation are being met. [1995, c. 610, §1 (new).] B. The student complies with the same physical examination, immunization, insurance, age and semester eligibility requirements as regularly enrolled students participating in the activity. All required documentation must be made available upon request by the school unit. [1995, c. 610, §1 (new).] C. The student meets equivalent academic standards as those established for regularly enrolled students participating in the activity and provides evidence that the academic standards are being met. [1995, c. 610, §1 (new).] D. The student abides by the same transportation policy as regularly enrolled students participating in the activity. [1995, c. 610, §1 (new).] [1995, c. 610, §1 (new).] 6. Use of school facilities and equipment. A student receiving home-school instruction may use public school facilities and equipment on the same basis as regularly enrolled students if the following conditions are met: A. Use does not disrupt regular school activities; [1995, c. 610, §1 (new).] B. Use is approved by the school principal in accordance with established school policy; [1995, c. 610, §1 (new).] C. Use does not create additional expense to the school unit; [1995, c. 610, §1 (new).] D. Use is directly related to the student's academic program; and [1995, c. 610, §1 (new).] E. Use of potentially hazardous areas, such as shops, laboratories and the gymnasium, is supervised by a qualified employee of the school administrative unit. [1995, c. 610, §1 (new).] [1995, c. 610, §1 (new).] 7. Use of school textbooks and library books. Subject to availability, a student receiving home instruction may use school textbooks if the number of particular copies are sufficient and library books owned by the school unit subject to the following conditions: A. Use does not disrupt regular student, staff or special program functions; [1995, c. 610, §1 (new).] B. The student's sign-out period for a library book is the same as that applicable to regularly enrolled students; [1995, c. 610, §1 (new).] C. The student may sign out a textbook for a period not to exceed one year; and [1995, c. 610, §1 (new).] D. The parent or guardian and student agree to reimburse the school unit for lost, unreturned or damaged library books and textbooks and for consumable supplies used. [1995, c. 610, §1 (new).] [1995, c. 610, §1 (new).] 8. Reimbursement for students enrolled in equivalent instruction programs. A school administrative unit is entitled to receive state subsidy for any student who receives instruction through one or more on-site academic courses from a public school but is not a full-time student. A school administrative unit that sends any tuition student to another school administrative unit or to a private school approved pursuant to chapter 219 is also entitled to receive state subsidy under this subsection. The rate of reimbursement must be established in increments of 0.25 full-time equivalent status up to 1.0 full-time equivalent status based on the average amount of time per day that a student receives on-site academic services from a public school. School administrative units shall keep an accurate count of the number of students receiving on-site academic services and shall include the full-time equivalency status of these students in the annual count of students attending school in accordance with section 6004.
§5022. Admission to regular program.
1. Placement. A student who has been receiving home-school instruction and who seeks admission to the regular school program must be placed in a grade commensurate with the level of the student's academic achievement. Placement must be guided by the following. A. Grade level placement is determined by the locally designated appropriate school staff, based upon but not limited to such factors as the student's completed curricula and record of achievement, conferencing with the student's parent or guardian and administration of tests, if determined necessary. [1995, c. 610, §1 (new).] B. The final grade level placement decision is based upon local school unit policy and procedures. That decision may be appealed to the school unit superintendent and, if desired, subsequently to the local school board, whose decision is final. [1995, c. 610, §1 (new).] [1995, c. 610, §1 (new).] 2. High school course credits and diploma eligibility. The following standards govern the awarding of course credits and a graduation diploma to a student receiving home-school instruction who seeks admission to the public high school. A. A student shall earn high school credits for satisfactory completion of courses in the public high school pursuant to section 5021, subsection 2, paragraph A. [1995, c. 610, §1 (new).] B. A student may earn credit for course work completed through home-school instruction if the principal determines both in advance and upon completion of the course that the course satisfies the requirements for awarding the credit. The principal may direct that the student undergo a test or tests to assist in making a determination relative to the awarding of credit. [1995, c. 610, §1 (new).] C. Requests for transfer credit for equivalent instruction completed at nonapproved private schools, at private schools that elect not to meet requirements under section 2901 or through other equivalent instruction programs must be evaluated on the merits of the documentation provided. The principal and guidance staff shall conduct these evaluations on request by the student or the student's parent or guardian. The principal may direct that the student undergo a test or tests to assist in making a determination relative to the awarding of credit under this paragraph. [2003, c. 271, §1 (amd).] D. Awarding of a high school diploma by the local school is conditioned upon the student's demonstration of having satisfied all course credit and other requirements established by the local school board. The local board of directors may establish resident credit requirements as a precondition for the awarding of a local school unit diploma.
§5023. Standards for participation when tuition payment is required.
When the local public school unit does not provide academic instruction for specific grade levels, the following applies for students enrolled in an approved program of equivalent instruction. [1995, c. 610, §1 (new).] 1. Class participation. The home-schooled student or the student's parent or guardian shall request authorization from the resident local school unit to apply to another school unit for permission to participate in classes or activities in that other school unit. [1995, c. 610, §1 (new).] 2. Tuition payment. Tuition payments for home-schooled student participation in a local school unit, including attendance at a career and technical education center or a career and technical education region, other than the applicant's resident district is the responsibility of the home-schooled student, the student's parent or guardian or the student's resident school administrative unit, in accordance with local school unit policy. Participation may not be unreasonably withheld. [1995, c. 610, §1 (new); 2003, c. 545, §5 (rev).] 3. Participation eligibility. A tuitioned home-schooled student is subject to the rules relating to eligibility for participation in cocurricular or extracurricular activities as may apply at the receiving school unit. [1995, c. 610, §1 (new).] 4. Interscholastic activities. A tuitioned home-schooled student attending classes in more than one receiving school unit is not eligible for participation in interscholastic activities at any local school unit.
§5024. Local school unit policy.
Each school administrative unit shall develop and adopt a policy consistent with this subchapter. Establishment and administration of the local school unit policy is subject to the following. [1995, c. 610, §1 (new).] 1. Policy. Local school unit policy must be submitted to and placed on file in the department by January 1, 1997. [1995, c. 610, §1 (new).] 2. Implementation. Locally approved policy is implemented and administered by the local school unit. [1995, c. 610, §1 (new).] 3. Provision of information. At the request of the student or the student's parent or guardian, public schools shall make available to home-schooled students, in a form determined by the school, information regarding access to public school resources and services, participation in public school activities and attendance at public schools. This information must include: A. Requirements regarding initial health and developmental screening for motor skills, vision, hearing and immunization; and [1995, c. 610, §1 (new).] B. Criteria for participation of home-schooled students in curricular, cocurricular and extracurricular activities. [1995, c. 610, §1 (new).] [1995, c. 610, §1 (new).] 4. Appeals. Appeals from administration and application of the local school unit policy are heard by the local school unit's school board, whose decision is final and binding.
Appeals that question the local school unit's policy compliance with this subchapter must be made to the commissioner, whose decision is final and binding.


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Except for children, and young ones at that, most people who suffer a traumatic brain injury ("TBI ") already have one or more of a multitude of conditions and disabilities that TBI can also cause. We call these pre-existing conditions. It's just life; the longer you live, the more likely you are to experience various difficulties with your health. The potential cognitive, emotional, behavioral, and physical symptoms of TBI, represent a wide range of such difficulties. For most victims of TBI, it is likely undeniable you have experienced some similar symptoms to those caused by TBI before you suffered your TBI.
When these clients suffer TBI on top of one or more of such pre-existing deficits, the trauma to their brains often aggravates or worsens their underlying conditions.
The purpose of this article is to emphasize the importance in your case of disclosing the full extent of any such pre-existing conditions as soon as possible. This cannot be overstated. It is essential you be the first to tell the story of your "weaknesses." Otherwise, you can bet your bottom dollar (and you don't have nearly as many dollars as the insurance company defending against you), the defense will destroy your case with this evidence. Try to follow the advice of Michael Jordan, perhaps the best basketball player ever to play the game: "My attitude is that if you push me toward something that you think is a weakness, then I will turn the perceived weakness into strength." And you need to outdo Jordan: You must disclose your weaknesses first without the push. If you wait for the defense to "find" what you hope is a "needle in the haystack," it is likely your undisclosed pre-existing conditions will become the "elephant in the courtroom."
When you are the first one to disclose your pre-existing conditions, we can use the information to bolster your credibility in the case. As this article explains, you can neutralize and sometimes even benefit from your pre-existing conditions.
Certainly, the thin-skull plaintiff rule applies in California. For example, on the issue of the unusually susceptible plaintiff, the California court in Rideau v. Los Angeles Transit Lines (1954) 124 Cal.App.2d 466, 471, states: "The tortfeasor takes the person he injures as he finds him. If, by reason of some preexisting condition, his victim is more susceptible to injury, the tortfeasor is not thereby exonerated from liability."
The negligent defendant is responsible for all damages suffered by the wrongful conduct, "even if the plaintiff is more susceptible to injury than a normally healthy person would have been, and even if a normally healthy person would not have suffered a similar injury." Cal. Civ. Jury Instruction (CACI) 3928.
The negligent party (sometimes called the tortfeasor) is also responsible for any worsening or aggravation of your pre-existing deficits caused by the TBI, even if you are not unusually vulnerable or susceptible. California juries are instructed you are not entitled to any damages for your physical or emotional condition existing before your TBI; however, if your physical or emotional condition was made worse by the wrongful conduct of another, the jury must, "award damages that will reasonably and fully compensate you for the effect on that condition." (Cal. Civ. Jury Instruction (CACI) 3927). For example, if you had headaches before your TBI, but your headaches are made worse by the TBI, you are entitled to recover for any worsening of your headaches resulting from the trauma. As stated by a California court in Ng v. Hudson (1977) 74 Cal.App.3d 250, 255: "Plaintiff may recover to the full extent that his condition has worsened as a result of defendantï¿¿s tortious act."
The key is honesty and accountability. You must tell your lawyer about all of your life's experiences relevant to the TBI. Both you and your lawyer must be honest and appear honest throughout the case. The person whose wrongful conduct causes your TBI is fully responsible, regardless of your unusual vulnerability to the injuries (you suffer more from the headaches caused by the TBI than the "normal person"),4 and for any aggravation of your condition (your headaches are worse than before your TBI). The courts do not want the person responsible for your TBI to avoid accountability for the full extent of the damages. If the tortfeasor has made you worse, he or she is responsible for all of the aggravation or worsening of your condition, whether or not you are unusually susceptible or vulnerable.
In summary, if you are more susceptible than others, you are entitled to full compensation for your injuries, even if others would not have experienced the same damages (or any damages at all), from your TBI. Even if you are not more susceptible or vulnerable to the TBI, you are entitled to recover damages for any worsening or aggravation of your pre-existing condition. The tortfeasor is held accountable for all of your harm, whether or not she or he could reasonably anticipate the extent of the damages caused to you by the wrongful conduct.
So long as you are honest about your perceived weaknesses, you may be able to turn them into strengths, or at least neutralize them so they do not destroy your case. But a word of caution: Dealing with the weaknesses due to your pre-existing conditions, is not the same as proving your brain injury case. You have the burden of proof (more than a 50% likelihood) both as to causation (your TBI, not your pre-existing conditions, is the substantial cause of your harm), and damages (the full amount of money compensation required to make up for your harm from the TBI). Especially when it comes to "mild" TBI, proving you are a different person now than before your TBI is necessary and difficult.
The challenge of how you deal with pre-existing conditions is potentially of greater economic consequence with moderate to severe TBI. Proving you are a different person is less complicated in these cases because such brain injuries are often apparent to the naked eye, and are always "visible," by definition, on standard radiographic imaging, such as MRI and CT scans. Distinguishing the harm caused by moderate to severe TBI, from your pre-existing conditions, is still critical. In order to obtain reasonable compensation for brain injuries likely to last a lifetime, the jury must believe you and your lawyer in all aspects of your case.
To achieve full justice for your "mild," moderate or severe TBI, the jury must be convinced of your credibility.
Several articles on my website explain how you and your lawyer can prove TBI of all kinds, "mild," moderate or severe, depending on your case.
*What is "Mild" Brain Injury?
 One recent client reported symptoms to his healthcare providers over the 10 years before he suffered his ï¿¿mildï¿¿ TBI, including: Psychological counseling in relationship to a divorce; fainting and dizziness; panic attacks; mood swings; muscle aches and increased pain in arms; back pain; anxiety attacks; nervousness; sleeping difficulties, including night sweats; poor concentration; lability (emotional instability); pain in foot; ear pain; shortness of breath; ï¿¿spaceyï¿¿; left upper extremity weakness; tingling in face; changed vision; unstable angina; neck pain and jerking movements; intermittent sharp shooting pain in left ear; hearing problems; left neck pain; drooping of right eyelid; right facial weakness and numbness; severe headaches with numbness and tingling; possible migraine with history of severe headaches; severe head congestion; loss of taste and smell; sciatica in right leg; arthritis in left leg; finger problems; and fibromyalgia.
Nonetheless, we were able to settle his "mild" TBI case for the $100,000 insurance policy limits because we discussed, and summarized, all of these conditions from the outset of the case, verified his injuries with his treating neurologist, and provided statements from witnesses who knew him before and after his TBI to confirm his changes. The message to the insurance company: Your insured driver hit the wrong person (he is a thin-skull plaintiff whose pre-existing conditions were made worse by his TBI).
 See Steve Calandrillo & Dustin Buehler, Eggshell Economic: A Revolutionary Approach to the Eggshell Plaintiff Rule, 74:3 Ohio St. L.J. 376, 385-86 (2008) (See, e.g., Tompkins v. Cyr, 202 F.3d 770, 780 (5th Cir. 2000); Jenson v. Eveleth Aconite Co., 130 f.3d 1287, 1294-95 (8th Cir. 1997); Wakefield v. NLRB, 779 F.2d 1437, 1438 (9th Cir. 1986); McBroom v. Iowa, 226 N.W.2d 41, 45ï¿¿46 (Iowa 1975); Thames v. Zerangue, 411 So. 2d 17, 19ï¿¿20 (La. 1982); Freyermuth v. Lutfy, 382 N.E.2d 1059, 1064 & n.5 (Mass. 1978).
 See Aaron Twerski & James Henderson, Jr., TORTS: CASES AND MATERIALS 258 (2d ed. 2008). See generally Candice E. Renka, Note, The Presumed Eggshell Plaintiff Rule: Determining Liability When Mental Harm Accompanies Physical Injury, 29 T. Jefferson L.R. 289 (2007). Courts also have held tortfeasors liable for aggravation of emotional distress brought about by negligent third-party treatment of an injury. See, e.g., Stoleson v. United States, 708 F.2d 1217, 1221 (7th Cir. 1983); Heims v. Hanke, 93 N.W.2d 455, 459 (Wis. 1958).
 Or, for another example, the negligent driver who strikes a motor vehicle driven by a hemophiliac who then bleeds to death, is responsible for the death, even though someone not suffering from hemophilia only needs a band-aid to stop the bleeding.
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Grace v. Standard Furniture Manufacturing Company, Inc.
Smith v. Burkhalter et al.
Brown et al. v. Melton et al.
Brasfield & Gorrie, L.L.C. v. Soho Partners, L.L.C.
Mandamus is an extraordinary remedy. When a party directs a petition for mandamus to an order that the trial court entered in exercise of its discretion, the appellate court may compel the exercise of discretion, but it may not compel that exercise in a particular manner. The appellate court also may correct an abuse of discretion via a mandamus petition. When the order that the appellate court remands to the trial court is not a final judgment, the trial court may accept additional evidence before exercising its discretion and entering a new order. Ex parte S.C., No. 2080419 (Ala. Civ. App. Aug. 14, 2009).
The Alabama Court of Civil Appeals recently reversed an order compelling arbitration because the trial court record contained no evidence, other than the contract containing the arbitration clause, to prove that the transaction involved interstate commerce. Accent Realty, Inc. v. Snopl, No. 2080229 (Ala. Civ. App. Aug. 14, 2009). The contract at issue involved real estate sales in Huntsville, Alabama. The contract stated that the transactions "involved interstate commerce" and that "the contract(s) entered into by the parties concerning this property evidence [a] transaction involving and affecting commerce." The Court held that a party moving for arbitration must present evidence supporting its contention that the underlying transaction involves interstate commerce, and the contract, standing by itself, without "evidence by affidavit or otherwise," is not sufficient to meet the movant’s burden of proof.
The parties filed various motions following the circuit court’s modification of custody. One motion was untimely, and another was more in the nature of a separate proceeding. The court purported to grant one of these motions. None of this rendered the modification order non-final. The Court of Civil Appeals thus possessed appellate jurisdiction. A.M. v. J.S., No. 2071213 (Ala. Civ. App. Aug. 7, 2009).
This case involves a familiar walk through a tangle of dates. Ultimately, the Court of Civil Appeals decided that a flurry of post-judgment filings did not disturb the finality of the challenged judgment, so that it could exercise appellate jurisdiction over the case.
The juvenile court could not refuse to order a losing appellee to pay the costs of appeal: The appellate court had ordered, and the governing rule mandated, that the appellee pay those costs when its original judgment was reversed. The Court of Civil Appeals directed the juvenile court to enter an order taxing the costs of appeal against the losing appellee. M.B. v. S.B., No. 2080464 (Ala. Civ. App. Aug. 7, 2009).
This custody modification suit was before the Court of Civil Appeals for a second time. In the previous appeal, the Court of Civil Appeals had reversed a custody modification, and taxed the costs of the appeal against the mother, as the losing appellee. When the case returned to the juvenile court, the appellants (the children’s grandparents) moved to recover the costs of appeal, pursuant to the appellate court’s mandate. The juvenile court denied that motion.
Nelms v. Hillside Village Apartments d/b/a Hale Properties, et al.
Felder v. Allen, Commissioner of the Alabama Department of Corrections, et al.
In Brannon v. BankTrust, Inc., Nos. 1060637, the Alabama Supreme Court discussed at length what constitutes an affirmative defense under Rule 8 of the Alabama Rules of Civil Procedure.
The Alabama Court of Civil Appeals recently dismissed an appeal from an "interim judgment" ordering the plaintiff’s employer to provide medical treatment for injuries she sustained in the line and scope of employment. Read more about SouthernCare, Inc. v. Margaret Cowart, No. 2071117 below.

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Authors: Korshikova I. A.; Pluzhnikova E. A.
Authors: Nusratullin V. K.; Nusratullin I. V.
Authors: Chmyr O. S.; Zakharkevych N. P.
Authors: Pohrischuk B. V.; Pylyavets V. M.
Authors: Shabalina L. V.; Zinevych O. S.
Authors: Komyshev A. L.; Mironova Z. A.; Ataev A. V.
Authors: Nezdoyminov S. G.; Andryeyeva N. M.
Authors: Shevchenko V. V.; Svistunova M. V.
Authors: Mal’chik M. V.; Gontarenko N. A.
Authors: Ivanchuk R. M.; Ivanchuk O. A.; Sheremeta D. V.
Authors: Demchenko A. O.; Momot A. І.
Authors: Pohrischuk B. V.; Melnik V. I.; Pylyavets V. M.
Authors: Zolotov A. F.; Omelchenko O. Y.

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Mr Nick Leale of Blake Morgan appeared on behalf of the ARB. Mr King did not attend and was not represented.
1.2 he altered his copy of the JCT contract after signature and without the complainant’s knowledge and that to do so was (i) misleading and (ii) dishonest contrary to Standard 1 of the Code.
2. Prior to the case being opened, Mr Hutchinson, the Architect member of the Committee, informed the Committee that he had previously disclosed a potential conflict to the Board. His practice was based in the locality of the Respondent’s and that as a representative of RIBA many years ago, he had some contact with the Respondent. The Respondent had not previously been contacted about this potential conflict, but was telephoned and emailed today. Mr Howard of ARB produced an attendance note of a telephone conversation he had with the Respondent at 11.10am which states: “I called Mr King and explained the notice of a potential conflict of interest that had been raised by Donal Hutchinson. Mr King did not recollect any personal dealings with Mr Hutchinson, although his name was vaguely known to him. He was clear that he had no objection to Mr Hutchinson sitting on the PCC panel considering the case against him”.
3. In an email timed at 12.04 today, the Respondent confirmed the earlier telephone conversation to state “I do not know Mr Hutchinson. I therefore have no objection to register”.
4. Having considered the above and having accepted the advice of the Clerk and the need for the Committee to be fair and impartial, the Committee concluded that there was no prejudice in Mr Hutchinson continuing to sit on the Committee and that there was no real or perceived bias by him continuing to do so.
5. Mr King not having attended the hearing, the Committee then considered whether notice of the hearing had been served in accordance with Rule 6 of the Professional Conduct Committee Rules (“the Rules”). Mr Leale submitted that notice, containing the required information, had been served on the Respondent by a letter dated 23 June 2014, more than the 42 days as prescribed by the Rules. Having heard and accepted the advice of the Clerk, the Committee is satisfied that notice had been served in accordance with the Rules.
6. The Committee then considered whether to proceed in his absence. The Committee applied Rule 11 of the Rules, the principles set out by the Court of Appeal in R v Hayward  EWCA 168, R v Jones (Anthony William)  1 AC 1 and Tait v. The Royal College of Veterinary Surgeons  UKPC 34.
7.5 The general public interest and in particular the interests of any victims or witnesses, that a hearing should take place within a reasonable period of time to which it relates.
8. The Committee exercised the utmost care and caution in reaching its decision, and has carefully considered the overall fairness of the proceedings. It balanced the potential impact on the Respondent’s livelihood and reputation in hearing the matter today in his absence, as against the public interest in proceeding with the hearing in a timely manner.
9. In reaching its decision, the Committee has had regard to the contents a letter from the Respondent to the Board dated 25 March 2014 in which he stated that he did not wish to be involved in the work and expense of “assembling witnesses, getting subcontractor statements, arranging and paying lawyers and other experts”. The Committee has also considered the contents of an email from the Respondent dated 20 August 2014 in which, having re-stated his wish to resign from the register, he stated that that “whatever decision is reached, even if the complaint is dismissed, I no longer have any interest or need to be informed”. In an email dated 23 August to the Board, he stated “I have made my resignation clear and I have no wish to receive any further communications from ARB”.
11. This case arises out of a complaint made by Mr P (“the Complainant”) on 20 March 2013 in respect of the professional services carried out by the Respondent. The Complainant is the Director of a company “DEL”.
12. The background to this case is that the Complainant and the Respondent entered into a JCT Minor Works Contract for a sum in excess of £300,000 to build a bungalow on the grounds of the Respondent’s property. The Respondent was not only the client, but also the Architect and the Contract Administrator. As the project progressed, the scope of the works materially grew. An informal extension of time was granted to DEL to complete the works, but a formal subsequent request for a further extension was refused by the Respondent.
13. Around June 2012, the Respondent, having sold his house, asked the Complainant if furniture could be stored in the bungalow. The Complainant agreed to this request provided a Practical Completion Certificate was issued. The Respondent confirmed that he would issue a Partial Completion Certificate. Around this time, the Complainant also raised his concerns about the potential conflict of interest in the respondent being architect, contract administrator and the client.
14. It is alleged that the Respondent, having moved his furniture into the bungalow, then refused to issue a Partial Completion Certificate.
15. In August 2012, the Complainant submitted a valuation for works. Very shortly after receiving this, the Respondent issued a termination notice on DEL.
16. DEL did not agree with the termination and issued court proceedings to recover unpaid monies, but the Respondent sought to have proceedings set aside so that the case could be heard by arbitration instead. In support of the application, the Respondent produced his copy of the contract which reflected that the arbitration clause had been marked. This did not match the Complainant’s copy of the contract. It is alleged that the Respondent had subsequently altered his copy of the contract as the Complainant denied he had contractually agreed to arbitration. The District Judge found the claim in favour of DEL.
17. All the allegations are denied.
18. In reaching its decisions, the Committee has carefully considered the live evidence of the Complainant together with the documentary evidence presented to it in the Report of the Board’s Solicitor together with the 402 pages of documents exhibited to it which includes the Respondents’ written responses to the allegations. It has also considered the contents of the Respondent’s letter dated 25 March 2014.
19. The Committee has accepted the legal advice given by the Clerk. It has had regard to the fact that the burden of proof in this case is on the Board and that the civil standard applies, namely proof on the balance of probabilities. Whether the conduct alleged amounts to unacceptable professional conduct is a matter for the Committee’s judgement.
21. The Committee finds this allegation proved for the following reasons.
22. The Complainant gave evidence that late additions to the contract required DEL to make an application for an extension of time under the contract. He states that it was unfairly refused. As a result, he considered that DEL had “no voice” under the contract.
23. In addition, he stated that, as the project neared completion, the Respondent asked to store his furniture in the property so he could avoid storage fees. Whilst the Complainant stated that this would constitute some beneficial use of the property, he agreed to the proposal but on the condition that the Respondent would issue a Practical Completion Certificate, to which the Respondent agreed. However, the Respondent issued a non-completion certificate as a result of which, the Complainant raised health and safety concerns as access to the property was being restricted. He also raised concerns about the respondent’s failure to issue the Practical Completion Certificate. As a result, the respondent sought to terminate the contract which the Complainant states was done unfairly. 24. The Complainant also relies on an email dated 16 July 2012 confirming that he had agreed with the Respondent that a surveyor would be appointed to adjudicate on the dispute. However, he alleges that the Respondent simply took advice from a building surveyor over dinner with a set of questions, produced unilaterally.
25. The Respondent in his written representations states that the Complainant was always aware of his position as client, Architect and contract administrator from the outset. He states that the contract was terminated due to delay in completion of the building works and that he refused the application for an extension of time to complete the works as it was unwarranted. In any event, he states that the contract allowed for a two month delay without penalty which, he asserts, demonstrates his impartiality.
26. So far as the completion certificate is concerned, the Respondent states that the offer was made on the condition that DEL completed specified works within three weeks which was not done. He states that consultations with a Chartered Surveyor and a health and safety consultant and his son who was also an architect, further demonstrates his impartiality.
27. Having carefully considered the evidence, the Committee firstly concluded that a potential conflict of interest was likely given that the Respondent was the client, the architect and the contract administrator. The Complainant accepted in evidence that this did not unduly concern him at the time as, in effect, he trusted the Respondent.
28.1 Having agreed that a surveyor would adjudicate in the dispute between the parties, the Respondent failed to instruct a wholly independent surveyor, instead taking advice from a friend over dinner. The Committee does not consider that such advice was obtained by way of “an arm’s length” professional instruction, but from an individual with whom the Respondent had a connection.
28.2 Having agreed in his letter dated 23 July 2012 to the Complainant that “A certificate for Partial Completion will be issued on 26 July when we will move our furniture into the new building”, he then stated in his letter of 3 August 2012 that “I am unable to issue a certificate of partial completion and in consequence of the foregoing it is now necessary for me to formalise the position by the issue of this letter as a ‘Certificate of Non-completion”. Whilst the respondent explains this change of approach by stating that various required elements had not been completed, he nevertheless failed to remove his furniture.
29. The Committee makes no finding regarding whether the Respondent failed to act impartially by way of refusing the requested extension of time for completion of building works because the outstanding works have been insufficiently particularised. In the circumstances, the Committee cannot be satisfied to the relevant standard as to what works were required to be completed and whether sufficient time had previously been allowed to complete them.
32. The Complainant gave evidence that following termination of the contract, he issued a summons for unpaid fees. Solicitors on behalf of the Complainant sought to stay the proceedings on the ground that the matter should be dealt with by arbitration. The Complainant states that his copy of the contract did not have the arbitration clause marked up but that the copy shown to him in court did. He was adamant that he had checked his copy of the contract and that he would not have agreed to arbitration and that the copy he signed did not mark up the arbitration clause. He asserts that that the clause was amended by the Respondent after signature and without his knowledge to assist the respondent in his application to the court.
33. The Respondent refutes the allegation and asserts in his written representations that the changes are simply pencilled annotations made during discussions before signature. He suggests that an arbitration clause would have applied equally to both parties and that there would therefore be nothing to gain by inserting the clause.
34. The Committee has borne in mind that this matter was considered by the court and has had sight of a Note of Judgment. The Judge, having heard evidence from both parties, concluded: “On the evidence that I have heard, I cannot make a finding that Mr King altered the version of the contract on which he relies after the Claimant had signed but on a balance of probabilities I find that the formation of the contract was chaotic. I am satisfied that there was no agreement for disputes to be referred to arbitration. It is also interesting that most of the markings on the version of the contract on which the Defendant relies, but not on that which he signed, are in pencil……The pencil entries and rubbings out or their inking over mean that I cannot be satisfied that Mr P… signed it with the deletion which incorporated the arbitration in place”.
35. The Committee finds on the balance of probabilities that the Board have not discharged the burden of proof in respect of this allegation. Notwithstanding the Complainant’s insistence that his signed copy of the contract did not contain the disputed wording, the Committee considers it improbable that the Respondent, had he wished to suggest that the term had been marked up, would have amended the contract in pencil rather than pen. The Committee therefore accepts on balance the Respondent’s representation that the pencilled mark-up was nothing more than an informal annotation. Furthermore, it cannot be satisfied to the required standard that the words were added after the Complainant’s signature of his copy of the contract. In the circumstances, the Committee has not gone on to consider whether his actions were misleading or dishonest.
36. Having found the first allegation proved and having determined that Mr King has breached Standard 6 of the Code, the Committee went on to consider whether the Respondent’s conduct amounts to unacceptable professional conduct. This is defined as conduct which falls short of the standard required of a registered person. In reaching its finding, the Committee has carefully considered all the evidence presented to it, all submissions made, and has accepted the advice from the Clerk. The Committee recognises that not every shortcoming on the part of an architect, nor failure to comply with the provisions of the Code, will necessarily give rise to disciplinary proceedings. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an architect.
37. The Committee has considered the authority of Spencer v General Osteopathic Council  EWHC 3147 (Admin). It has borne in mind in reaching its decision that for a finding of unacceptable professional conduct to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. Any failing should be serious. The Committee accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions….a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”.
38. The Respondent’s position as client, architect and contract administrator presents an obvious potential for a conflict of interest which the respondent should have confirmed to the Complainant in writing. Failing to act impartially when a dispute had arisen between himself and the Complainant in these circumstances, amounts, in the Committee’s view, to a substantial departure from the standard expected of an architect. As such, the Committee finds that the Respondent’s conduct does amount to unacceptable professional conduct.
39. The Committee then considered whether to impose a sanction. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the Board, and to declare and uphold proper standards of conduct and behaviour. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the Clerk. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, the Indicative Sanctions Guidance and the need to act proportionately, taking into account all the aggravating and mitigating factors in this case. In doing so, the Committee has exercised its own independent judgement.
41.1 He has not demonstrated insight into his failings nor has he made a genuine expression of regret; 41.2 He took advantage of his professional position to the detriment of DEL.
42. The Committee notes that the matters found proved are serious. Acting impartially is a fundamental requirement of an architect and a failure to do so diminishes both his reputation, and that of the profession generally. The Committee is mindful of its role to declare and uphold proper standards of conduct and behaviour. The Committee concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.
43. The Committee first considered whether to impose a reprimand but having considered the indicative sanctions guidance and the aggravating and mitigating factors detailed above, the Committee considered that his failings were too serious for such a sanction. The Committee then considered whether to impose a penalty order. Taking into account all the circumstances of this case, the Committee considered that such a sanction would be appropriate and proportionate. The Committee therefore imposes a penalty order in the sum of £1,000 which reflects the gravity of his failings which sum should be paid within 28 days.
44. The Committee considered whether to impose a suspension order but considered that in the circumstances, such an order was disproportionate given that a penalty order was a sufficient sanction to protect the public and the public interest.
45. That concludes this determination.
The Committee met again on the 29 January 2015 to consider Mr King’s non-payment of the penalty order.
1. In this case, the Board is represented by Ms Kristen Hewett. Mr King has not attended this meeting and is not represented.
2. Mr King not having attended the meeting, the Committee first considered whether Mr King had been given notice of the meeting. Ms Hewett submitted that Mr King had been made aware of the meeting. On 8 December 2014, Mr King emailed the Board to say that he was considering whether to appear at the meeting on 29 January 2015. Having heard and accepted the advice of the clerk, the Committee is satisfied that Mr King has had due notice of the meeting.
3. The Committee then considered whether to proceed in his absence. The Committee has applied Rule 11 of the Rules, the principles set out by the Court of Appeal in R v Hayward  EWCA 168, R v Jones (Anthony William)  1 AC 1 and Tait v. The Royal College of Veterinary Surgeons  UKPC 34.
4.5 The general public interest that a hearing should take place within a reasonable period of time to which it relates.
6. In reaching its decision, the Committee has had regard to the contents a letter from the Respondent to the Board dated 25 March 2014 in which he stated that he had no confidence that he could expect a fair and unbiased hearing. The Committee has also considered the contents of an email from the Respondent dated 20 August 2014 in which, having re-stated his wish to resign from the register, he stated that that “whatever decision is reached, even if the complaint is dismissed, I no longer have any interest or need to be informed”. In an email dated 23 August to the Board, he stated “I have made my resignation clear and I have no wish to receive any further communications from ARB”.
7. On 8 January 2015, the Board wrote to Mr King confirming the date and time of the hearing and also sought confirmation as to whether he would be attending. He has neither requested an adjournment of the meeting, nor has he given an explanation for his non-attendance save for the fact that on the 25 January 2015, he emailed the Board to state that saw “little point” in attending.
8. Given the seriousness of the allegation against the Respondent and taking into account the contents of the correspondence, the Committee is satisfied that the Respondent has been given an adequate opportunity to make arrangements to appear before the Committee to argue his case in person and that he has chosen to voluntarily absent himself. The Committee saw no evidence that led it to conclude that by adjourning the matter, the Respondent would attend the hearing on any future date and the Committee notes that the Respondent has not sought an adjournment in any event. Taking all these factors into account, the Committee has concluded that it is fair and in the interests of justice to hear the case in his absence.
9. On 8 September 2014, a Committee of the Professional Conduct Committee (“PCC”) found Mr King guilty of unacceptable professional conduct, pursuant to Sections 14(1) and 14(3) of the Architects Act 1997 (“the Act”). After careful consideration, that Committee concluded that the appropriate sanction was a penalty order in the sum of £1000. The Committee ordered that sum to be paid within 28 days of notice of that decision. On 11 December 2014, the Board wrote to Mr King advising him of the Committee’s findings, the sanction it had imposed and that he could appeal the decision within three months of the date of the hearing. He was also advised of his right to make an application to vary the terms of the order. To date, Mr King has not taken any steps to appeal against the PCC’s original findings or penalty. In addition, despite Rule 11(d) of the Rules providing an additional safeguard, namely that an absent Respondent may apply for a rehearing in certain circumstances, Mr King had not availed himself of that provision.
10. On 11 November 2014, the Board wrote to Mr King noting that the penalty order had not been complied with. The letter confirmed that no application had been received to vary the payment terms of the order and that the deadline for payment had passed. In the light of Section 16(4) of the Architects Act 1997, his case would be referred back to the PCC for further consideration, and that the PCC had power under the Act to suspend him or erase his name from the Register of Architects.
11. The Committee has borne in mind the adverse impact, in the eyes of the public, on the reputation of both the profession and the PCC were the sanction it had previously imposed to be ignored. The Committee is mindful that the Act permitted, but did not require, the imposition of either suspension or erasure following non-payment of a penalty order. In considering whether it would be proportionate to take either of these steps, the Committee should take account of the likelihood of the penalty ever being paid, the protection of the public and possible damage to the reputation of the Board, the profession and the PCC were an architect to fail to pay a penalty order. In reaching its decision, the Committee gave careful consideration to all the matters presented by the Board in its report, and took account of the Clerk’s legal advice when considering the evidence presented and the options open to it. Mr King has not made any representations to the Committee.
12. The Committee first considered whether it would be proportionate to apply either of the orders available pursuant to Section 16(4) of the Act or whether to take no further action. The Committee took into account the contents of such correspondence as has been received from Mr King. The Committee noted that in the Respondent’s email of 22 November 2014 that he “vigorously disputed the claim”. Having done so, it regarded the prospects of the penalty being paid in full or in part, as low. The Committee concluded that the penalty order previously imposed against Mr King was therefore insufficient to protect the public and the reputation of the profession and that a further sanction was therefore appropriate and proportionate.
13. The Committee considered whether to impose a suspension order against the Respondent but considered that, given the Respondent’s wilful failure to comply with a sanction imposed by his regulator, that this matter was too serious for such a sanction.
14. Taking into account of the potential damage to the reputation of the Board, the profession and the PCC in the eyes of the public were its sanctions not enforced, the Committee concluded that only an erasure order would be appropriate or proportionate. The Committee is satisfied that any lesser sanction would undermine confidence in the profession or the ARB as its regulator. The Committee recommends that the Respondent is not eligible to apply for re-entry to the profession for a period of two years after payment in full of the penalty order originally imposed against him on 8 September 2014.

matches: EWCA v. UKPC EWCA v. UKPC


The Internal Revenue Service (IRS) and Department of the Treasury have promulgated final regulations impacting tax-exempt organizations with gross annual receipts that generally do not exceed $25,000. The final regulations became effective July 23, 2009. The regulations are applicable to annual filing periods beginning after 2006.
In 2006, the Pension Protection Act was passed, including a requirement that the Treasury Secretary promulgate regulations regarding the time and manner in which certain tax-exempt organizations must file annual electronic notification. The regulations that followed amend the Income Tax Regulations (26 CFR Part 1, section 6033(i)(1)), which relate to requirements for notification by entities that are not currently required to file an annual information return (Form 990) under section 6033(a)(1).
Under the final regulation, 26 CFR § 1.6033-6, tax-exempt entities under § 501(a) that are not required to file annual information returns as described in § 1.6033-2(a)(2) must submit electronic notification containing the legal name of the organization, any assumed business names, mailing and web address, tax identification number, name and address of principal officer, evidence of ongoing basis for exemption under § 6033(a)(1), and any additional information required for processing. Certain employer-created qualified pension, profit-sharing, and stock bonus plans, as defined in § 401(a) and certain religious and apostolic organizations, as defined in § 501(d) are not subject to the regulation. By submitting the electronic notification, an organization acknowledges it is not required to file a return under § 1.6033(a) because its annual gross receipts do not normally exceed $25,000. The regulation also contains requirements for record maintenance, as provided in § 1.6001. If the organization submits a complete Form 990 or 990-EZ, however, the requirements of annual electronic notification will be deemed satisfied. The final regulation does not relieve an organization from any other filing requirements.
The notification must be filed based on the annual accounting period of the organization; however, if the organization does not have an annual accounting period, notice shall be filed on the basis of the calendar year. Electronic notification must be submitted on or before the 15th day of the 5th calendar month after the close of the period for which the notification is being submitted.


text:
Mrs Owens has been given permission to appeal to the Supreme Court. She is challenging the decision of a circuit judge and the Court of Appeal (Owens v Owens  EWCA Civ 182,  4 WLR 74) to find that, though her marriage had unquestionably broken down, she failed to prove that her husband had behaved in a way which showed that she could not reasonably be expected to live with him.
The relevant law is set out at Matrimonial Causes Act 1973 s 1. There is one ground for divorce: either party to a marriage can petition for divorce (A) ‘on the ground that the marriage has broken down irretrievably’; but a court can only say there is irretrievable breakdown if one of five ‘facts’ are proved including (s 1(2)(b)): ‘that the respondent [(B)] has behaved in such a way that [A] cannot reasonably be expected to live with [(B)]’.
Though they considered that Mrs Owens’s (ie A’s in her case) marriage had broken down irretrievably, the Court of Appeal felt unable to say that she could not be expected to live with Mr Owens (see eg comment at ‘Owens: a dead marriage but no divorce’  New Law Journal 31 March, David Burrows; and here). The logic of the court’s conclusion, based only on the words of s 1, is difficult to follow. But what of its logic, in terms of Mrs Owens’s personal – or ‘human’ – rights (under European Convention 1950 and generally)?
In Owens Sir James Munby P commented on Mrs Owens’s advocate’s assertion that European Convention 1950 Arts 8 and 12 supported her case. He said, of Mr Owens’s reply to this assertion, with which he agreed, that there is ‘no Convention right to be divorced nor, if domestic law permits divorce, is there any Convention right to a favourable outcome in such proceedings’.
If this was the advocates’ argument it was, indeed, an odd line for him to take. Section 1(2)(b) does not require anyone to prove ‘fault’. It asks an open question: has a spouse behaved in such a way that the other spouse cannot live with her or him? That need not be because they are at fault. It requires proof only that B has acted in a way that A ‘cannot reasonably be expected to live with’ B. A must be able to say that her marriage is dead (as in the Owens case, and as the court found). Each party surely should then be able to move on?
If European Convention 1950 is necessary to all this, Art 8 seems to me to be relevant. I cannot see that Art 12 has any relevance. It is difficult to see how respect for a person’s ‘private life’ (‘private and family’ are disjunctive: they mean two different things. They are not both part of the same concept) is consistent with requiring either party to a dead marriage to going on living with the other spouse (as the court knew was likely to be the effect of their decision for Mrs Owens).
Looked at as a question of right separate from European Convention 1950, it is necessary to find a duty to which the right is corollary (or reflective). Do I have a duty to live with someone I no longer want to share a home with? If there is no marriage the answer is resoundingly: no. If I am married to that person, why is my duty any different? If it is different, does not the right not to be discriminated against (Art 14) apply (marriage is an ‘other status’ as referred to in Art 14).
In law spouses must make arrangements for financial support for one another (or the court can order it: Matrimonial Causes Act 1973 Pt 2). That is a statutory duty bred of a right to financial support from the weaker spouse (the same does not apply if we are not married). That right would be protected – enhanced even – if Mrs Owens’s marriage is dissolved.
But to find – as did the Court of Appeal – a right vested in Mr Owens to expect of Mrs Owens a form of conjugal cohabitation (and thus no right in Mrs Owens to claim financial support till her marriage is dissolved) is not in any statute. Is such a right implied by English law? That it is, is the logic of the Court of Appeal’s decision.
Does the requirement to live in an unwanted and loveless relationship interfere with a person’s ‘family life [and] home’? Common sense – and, it must be hoped, the law – must surely say ‘yes’? If MCA 1973 s 1(2)(b) says what the Court of Appeal says it says – and I do not think it does require them to find as they did in Owens – then Mrs Owens needs also to seek a declaration of incompatibility with her rights (in Arts 8 and 14) under Human Rights Act 1998 s 4.
The fate of the unfortunate Mrs Owens and her refused divorce set me thinking about the need to review our divorce laws, especially if Mrs Owens’s case represents how senior judges say our divorce laws should work. I had thought that since the 1970s most people, if they want a divorce, could get one. Not so Mrs Owens (Owens v Owens  EWCA Civ 182), whose unreasonable behaviour petition was dismissed on the assessment of a circuit judge and of the Court of Appeal (Sir James Munby P, Hallett and Macur LJJ) namely four elderly, white, middle class individuals, two of each gender.
In the final analysis the issue involves an application of law to facts, and then imposing a subjective judicial view of what is can ‘reasonably’ be put up with in a marriage. But first what could fairly be the law on what should bring a marriage to an end?
The ability would be there (unlike now) to apply to the court for financial provision at any time (now you have to wait till you can file a divorce petition before applying to unravel or to reconfigure your family finances).
The last time law reform was attempted – Family Law Act 1996 Pt 2 – it was highly complex, involved the then fashionable ‘information meeting’ (Prince Charles was getting divorced at the time: would he have to attend such a meeting?); and it was never brought into operation (ditched finally by Children and Families Act 2014). So the law remains as in 1969 with divorce allowed on one ground – irretrievable breakdown – to be established on one or more of five facts: adultery, unreasonable behaviour, desertion for two years, and living apart for two (with consent) or five years.
Irretrievable breakdown and no divorce?
And what of Mrs Owens? She is locked in a dead marriage and blocked from divorce – it might be thought – by a narrow view of the present view legal issue. ‘On any view, the marriage is over’ said Hallett LJ (§102); and the other Court of Appeal judges agreed. Mrs Owens’s marriage has irretrievably broken down (Matrimonial Causes Act 1973 s 1(1)). But she cannot be divorced. Can this be what Parliament intended when the Divorce Reform Act 1969 (now consolidated into MCA 1973) found its way onto the statute book?
We are entitled to ask; for can Parliament really have intended that irretrievable breakdown might not lead to divorce? Could those 1969 MPs have thought that a marriage which was dead could not – by one of the facts under s 1(2) – be dissolved. I doubt it. But Parliamentary intent was not amongst questions the Court of Appeal judges seemed to ask in their 100+ judgment. Yet they were entitled to do so. Indeed it is arguable that they had the duty so to do. The court is permitted to look not just at the words of a statute but at the Parliamentary intent behind the when an Act was passed (Padfield v Minister of Agriculture, Fisheries and Food  AC 997,  2 WLR 924).
‘(1) …a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.
The effect of this is that if one spouse (A) wants a divorce immediately they must have a spouse who is willing to admit adultery (s 1(2)(a)); or to allege successfully – as Mrs Owens failed, in law, to do – that their spouse (B) has ‘behaved in such a way…’ etc. What is to be ‘reasonably… expected’ is entirely subjective. It depends on what an individual judge thinks on the day is to be ‘reasonably… expected’; or, put another way: how much must A put up with? And what might those MPs in 1969 have expected A – or, for that matter, Mrs Owens – to put up with.
Then turn the question around. Ask deductively, as the judges did not do: if a court finds a marriage to be dead, does that not prove that at some level someone – eg B – must have behaved in a way that A ‘cannot reasonably be expected to live with’ B. Munby P scratched at this point in §37 when he set out a test for unreasonable behaviour: ‘what is proved to have happened in this marriage’ and ‘having regard to the cumulative effect’ of B’s conduct has B behaved in such a way that A cannot reasonably be expected to live with B?
But Sir James did not look at the other end of the telescope. If a marriage has broken down, is it not reasonable to say that someone must have behaved in a way that the other cannot be expected to live together: a process of deductive reasoning. MCA 1973 is an ‘always speaking’ statute which must be seen in the light of how a reasonable person would see its words in 2017 (§§39 and 41), said Sir James. But no, the judges seem to think, the law calls for feats of Victorian stiff-upper lip fortitude from parties to a marriage, where one wants a marriage not to be dissolved.
But we are allowed to ask: even in 1969 would the MPs who passed the original divorce reform Act have expected Mrs Owens to remain married to, and living with, her estranged husband. I doubt it.

matches:
EWCA
Art 8
Art 12
Art 14
EWCA
§37


77-2363. Public funds; actions to recover; validity of contracts.
In all cases in which public money or funds belonging to the United States, an agency of the United States, the State of Nebraska, or any political subdivision in this state have been deposited or loaned to any person or persons, corporation, bank, capital stock financial institution, qualifying mutual financial institution, partnership, limited liability company, or other firm or association of persons, it shall be lawful for the officer or officers making such deposit or loan or his, her, or their successors in office to maintain an action or actions for the recovery of such money so deposited or loaned. All contracts made for the security or payment of any such money or public funds shall be held to be good and lawful contracts binding on all parties thereto.
Source:Laws 1879, § 1, p. 156; R.S.1913, § 6675; C.S.1922, § 6212; C.S.1929, § 77-2601; Laws 1933, c. 120, § 1, p. 488; Laws 1935, c. 4, § 1, p. 66; Laws 1937, c. 169, § 1, p. 674; C.S.Supp.,1941, § 77-2601; Laws 1943, c. 19, § 5, p. 105; R.S.1943, § 77-2363; Laws 1987, LB 440, § 11; Laws 1988, LB 802, § 15; Laws 1989, LB 33, § 76; Laws 1990, LB 1165, § 1; Laws 1993, LB 121, § 498; Laws 1994, LB 1118, § 20; Laws 1996, LB 1274, § 49; Laws 2001, LB 362, § 70.
Where village brings suit against sureties who had given a bond to protect deposit, and sureties consent to entry of judgment against them, it is an admission that bank was a legal depository. Shumway v. Department of Banking, 131 Neb. 246, 267 N.W. 469 (1936), withdrawing opinion 130 Neb. 491, 265 N.W. 553 (1936).
County treasurer having loaned or invested public funds without authority, may, in his official capacity, maintain action for their recovery. Woods v. Brown County, 125 Neb. 692, 251 N.W. 839 (1933).
Officer making deposit hereunder, or his successor in office, in his official capacity, may maintain action or actions for recovery of such money. State ex rel. Sorensen v. Nemaha County Bank of Auburn, 124 Neb. 883, 248 N.W. 650 (1933).
Bond given by state bank to secure school district deposits is valid obligation hereunder, and sureties on such bond are bound thereby. Liberty High School District of Sioux County v. Currie, 122 Neb. 173, 240 N.W. 286 (1931).
Section is remedial, and should be given liberal construction. McIntosh v. Johnson, 51 Neb. 33, 70 N.W. 522 (1897).
County funds, wrongfully deposited in bank, cease to be public funds. First Nat. Bank of South Bend Indiana v. Gandy, 11 Neb. 431, 9 N.W. 566 (1881).
Where State Treasurer was not authorized to deposit funds, state had no right of action against bank. State v. Keim and Gamble, 8 Neb. 63 (1878).