The Director may consider the failure to submit such an amendment within that time period as a waiver of any benefit under this section. The later-filed application must claim the benefit of the intermediate nonprovisional application under 35 U. The Director may establish procedures, including the requirement for payment of the fee specified in section 41(a)(7), to accept an unintentionally delayed submission of an amendment under this section. 120, 121, 365(c), or 386(c) or, provided the later-filed application is not a design application (see 35 U.
The Office may not recognize any benefit claim where, for example, there is no indication of the relationship between the nonprovisional applications, or no indication of an intermediate nonprovisional application that is directly claiming the benefit of a provisional application. Even if the Office has recognized a benefit claim by entering it into the Office’s database and including it on applicant’s filing receipt, the benefit claim is not a proper benefit claim under 35 U.
Patents usually will be published within four weeks of payment of the issue fee. 371(d) indicates that failure to timely comply with the requirements of 35 U.
Thus, the later-filed application may be filed under 37 CFR 1.53(b) while the prior application is still pending before the examiner, or is in issue, or even between the time the issue fee is paid and the patent issues. 371(c) “shall be regarded as abandonment of the application by the parties thereof.” It is therefore clear that an international application which designates the United States has the effect of a pending U. application from the international application filing date until its abandonment as to the United States.
When proceedings in an application are terminated, the application is treated in the same manner as an abandoned application, and the term “abandoned application” may be used broadly to include such applications. Appropriate references must be made in each intermediate application in the chain of prior applications. Thus, rather than submitting a national stage application under 35 U.
The term “abandoned,” refers to abandonment for failure to prosecute (MPEP § 711.02), express abandonment (MPEP § 711.01), abandonment for failure to pay the issue fee (37 CFR 1.316), and abandonment for failure to notify the Office of a foreign filing after filing a nonpublication request under 35 U. There are several other situations in which proceedings are terminated as is explained in MPEP § 711.02(c). The reference to the prior applications must identify all of the prior applications and indicate the relationship (i.e., continuation, divisional, or continuation-in-part) between each nonprovisional application in order to establish copendency throughout the entire chain of prior applications. 371, applicant may file a continuation, divisional, or continuation-in-part of an international (PCT) application under 35 U. The ability to take such action is based on provisions of the United States patent law.
If the prior application is abandoned, the later-filed application must be filed before the abandonment in order for it to be copending with the prior application. After a decision by the Court of Appeals for the Federal Circuit in which the rejection of all claims is affirmed, the proceeding is terminated when the mandate is issued by the Court. To claim the benefit of the filing date of an international application, the international application must designate the United States and be entitled to a filing date in accordance with PCT Article 11, and the later-filed application must be filed during the pendency (e.g., prior to the abandonment) of the international application.
Applicants are encouraged to file any continuing applications no later than the date the issue fee is paid, to avoid issuance of the prior application before the continuing application is filed. The expression “termination of proceedings” includes the situations when an application is abandoned or when a patent has been issued, and hence this expression is the broadest of the three copendency definitions. Such applications are often referred to as “bypass” applications. 363 provides that “An international application designating the United States shall have the effect, from its international filing date under article 11 of the treaty, of a national application for patent regularly filed in the Patent and Trademark Office.” 35 U. The later-filed application may be referred to as a continuing application when the prior application is not a provisional application. A later-filed application which is not copending with the prior application (which includes those called “substitute” applications as set forth in MPEP § 201.02) is not entitled to the benefit of the filing date of the prior application. Copendency between the current application and the prior application is required. There is no limit to the number of prior applications through which a chain of copendency may be traced to obtain the benefit of the filing date of the earliest of a chain of prior copending applications. 119(e) must be filed within 12 months from the filing date of the provisional application unless the benefit of the provisional application has been restored. 2008) wherein the district court interpreted “before” to mean “not later than” and allowed a continuation application filed the same day that the parent patent issued to have the benefit of the filing date of the parent application. The term “continuity” is used to express the relationship of copendency of the same subject matter in two different applications naming the same inventor or at least one joint inventor in common. See MPEP § 211.02 for guidance regarding properly referencing prior applications. RESTORING THE BENEFIT OF A PROVISIONAL APPLICATIONEffective December 18, 2013, title II of the Patent Law Treaties Implementation Act (PLTIA) provides for restoration of the right to claim benefit of a provisional application filed after the expiration of the twelve-month period in 35 U. As a result of the implementation of title I of the PLTIA, 37 CFR 1.78(a) and (b) were amended effective May 13, 2015, to provide that a petition to restore the right of priority filed on or after May 13, 2015, must be filed in the subsequent application and to clarify that the subsequent application is the application required to be filed within the period set forth in 37 CFR 1.78(a)(1)(i). However, this application was not filed within twelve months from the filing date of the provisional application, and there is no indication of an intermediate nonprovisional application or international application designating the United States that is directly claiming the benefit of the provisional application and filed within 12 months of the filing date of the provisional application. A petition under 37 CFR 1.78(b) to restore the benefit of the provisional application must include: (1) the reference required by 35 U. A petition to restore the benefit of a provisional application must be filed in the subsequent application. COPENDENCYWhen a later-filed application is claiming the benefit of a prior-filed nonprovisional application under 35 U. Copendency is defined in the clause which requires that the later-filed application must be filed before: (A) the patenting of the prior application; (B) the abandonment of the prior application; or (C) the termination of proceedings in the prior application. If a benefit claim to a provisional application is submitted without an indication that an intermediate application directly claims the benefit of the provisional application and the instant nonprovisional application is not filed within the 12 month period (or 14 month period if the benefit of the provisional application has been restored pursuant to 37 CFR 1.78(b)) or the relationship between each nonprovisional application is not indicated, the Office will not recognize such benefit claim and will not include the benefit claim on the filing receipt. Thus, an application may now validly claim the benefit of a provisional application filed up to fourteen months earlier. Alternatively, applicant may wish to file a petition to restore the benefit of the provisional application under 37 CFR 1.78 in the subsequent nonprovisional application or international application designating the United States if the subsequent application was filed within two months from the expiration of the twelve-month period and the delay was unintentional. 119(e) and 37 CFR 1.78 to the prior-filed provisional application (unless previously submitted); (2) the petition fee set forth in 37 CFR 1.17(m); and (3) a statement that the delay in filing the subsequent nonprovisional application or international application designating the United States within the twelve-month period was unintentional. 120, 121, 365(c), or 386(c), the later-filed application must be copending with the prior application or with an intermediate nonprovisional application similarly entitled to the benefit of the filing date of the prior application. Use form paragraphs 2.09 and 2.11 to indicate the benefit claim under 35 U. This application is claiming the benefit of prior-filed application No. If applicant wishes that the pending application have the benefit of the filing date of the first filed application, applicant must, besides making reference to the intermediate application, also make reference to the first application. See MPEP § 211.02 for guidance regarding properly referencing prior applications. a national application shall be entitled to the benefit of the filing date of a prior international application designating the United States.” The condition of 35 U.


text:
plaintiff's motion and deny the Bureau's motion without prejudice.
Injunctive Relief to Obtain Freedom of Information Act Information ("Compl.") ¶¶ 5, 7.
against it . . . between January 1, 1996 . . . and . . . July 31, 2003." Pl.’s Mem. at 1.
and the identifying information" for each lawsuit or claim or attorney fee award, Compl.
¶ 8, and "a copy of the complaint or other documents describing the facts of the case," Id.
Department of Justice, the plaintiff sought relief from this Court by filing this lawsuit.
plaintiff. Order, June 26, 2006.
Opposition to Plaintiff's Motion for Judgment ("Pl.’s Reply").
Bureau provided the plaintiff with over 10,000 pages of records responsive to its request.
not been produced at all. Pl.'s Mem. at 1.
likely to contain responsive materials . . . were searched."
Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (quoting Nation Magazine v. U.S.
(D.C. Cir. 1991) (citation omitted).
(D.D.C. 2008) (citing Iturralde, 315 F.3d at 315; Cleary, Gottlieb, Steen & Hamilton v.
Dep't of Health and Human Servs., 844 F. Supp. 770, 777 n. 4 (D.D.C. 1993)).
or their thoroughness." Id. at 2. The Bureau has failed to respond to this argument.
the sufficiency of the affidavit.
personal knowledge by the affiant, see Shaw v. FBI, 749 F.2d 58, 63 n.2 (D.C. Cir.
or control" over "potentially responsive records that subsequently have been destroyed."
duty under FOIA to retain the records." Wilbur v. CIA, 355 F.3d 675, 677-78 (D.C. Cir.
designed to locate documents responsive to the plaintiff's request.
FOIA "reflects a general philosophy of full agency disclosure," Dep't of Defense v.
certain information may harm legitimate governmental or private interests," Summers v.
affiant is competent to testify on the matters stated." Fed. R. Civ. P. 56(e)(1).
Military Audit Project, 656 F.2d at 738. That has not been accomplished here.
pursuant to the FOIA exemptions relied upon by the Bureau.
An Order consistent with the Court’s ruling accompanies this Memorandum Opinion.

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


Oracle's Motion to exclude the expert testimony of Professor Marco Iansiti should be denied. Professor Iansiti's expert testimony will be offered concerning the capabilities of enterprise resource planning ("ERP") software for human resources management ("HRM") and financial management systems ("FMS") and their ability to satisfy the functional and technological requirements of large commercial enterprises. Defendant seeks to have Professor Iansiti's testimony excluded under Daubert and its progeny based upon allegations that: 1) his advanced degrees are in physics rather than computer science or information technology; 2) his academic research has not "studied enterprise resource planning software in general--let alone the specific field of HRM and FMS software;"1 and 3) because his methodology does not reflect any academic or professional discipline. Defendant misstates the legal standard to be applied by the Court in assessing technical expert qualifications; misunderstands the depth and breadth of Professor Iansiti's experience, academic, and otherwise; and misconstrues the methodology that he used to undertake his review.
Rule 702 allows a witness to be "qualified as an expert by knowledge, skill and experience, training or education." Fed. R. Evid. 702. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). As demonstrated below, Professor Iansiti's knowledge, research, and experience in software products--including enterprise software such as the products sold by Oracle and PeopleSoft--make him particularly well situated to assist the Court. The structured methodology used by Professor Iansiti to reach his expert conclusions is consistent with those that he and his colleagues have applied to scholarly research projects used to evaluate the relationships between technology and product development.
Fed. R. Evid. 702; see Reiffin v. Microsoft Corp., 270 F. Supp. 2d 1132, 1145 (N.D. Cal. 2003) (Walker, J.).
Rule 702 affords a court wide latitude to admit expert testimony that is both relevant and reliable. See Kumho Tire Co., 526 U.S. at 147 (expanding Daubert's flexible application to technical expert testimony); Daubert, 509 U.S. at 588; Andrews v. Metro North Commuter R.R. Co., 882 F.2d 705, 708 (2d Cir. 1989) ("For an expert's testimony to be admissible . . . it must be directed to matters within the witness' scientific, technical, or specialized knowledge and not to lay matters which a jury is capable of understanding and deciding without the expert's help."). "If it satisfies these two requirements, then it is a matter for the finder of fact to decide what weight to accord the expert's testimony." Kennedy v. Collagen Corp., 161 F.3d 1226, 1230-31 (9th Cir. 1998) (reversing exclusion of scientific medical testimony when court improperly ignored expert's reliance on scientific journals and when expert's conclusions were based on reasoning and methodology "of the kind traditionally used by rheumatologists."). The standard is applied even more flexibly in a bench trial, where unlike a jury trial, there is "little risk that the expert testimony [will] be given undue weight." In re Bay Area Material Handling, Inc., 1995 WL 729300, at *6 (N.D. Cal. Dec. 4, 1995) (Walker, J.); see Volk v. United States, 57 F. Supp. 2d 888, 896 n.5 (N.D. Cal. 1999) ("[I]t bears noting that the Daubert gatekeeping obligation is less pressing in connection with a bench trial.").
Rule 702 provides a flexible standard for admitting technical or non-scientific expert testimony. See Daubert, 509 U.S. at 588 (Federal Rules of Evidence have a "liberal thrust;" including "general approach of relaxing the traditional barriers to 'opinion' testimony."); Jinro Am., Inc. v. Secure Investments, Inc., 266 F.3d 993, 1004 (9th Cir. 2000); 4 Weinstein's Federal Evidence § 702.01 (Supp. 2002) ("Expert testimony is liberally admissible . . . ."). In Kumho Tire, the Supreme Court expanded Daubert's flexible principles to "testimony based on 'technical' and 'other specialized' knowledge." 526 U.S. at 141. The same standard applies to both the expert's qualifications and methodology. See Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000) (liberal admissibility of expert testimony under Daubert extends to expert qualifications); Thomas v. Newton Int'l Enters., 42 F.3d 1266, 1269 (9th Cir. 1994) (Rule 702 "contemplates a broad conception of expert qualifications."). The Supreme Court observed in Kumho Tire that Daubert's listed criteria are only suggestions and may not be applicable to all expert fields. See Kumho Tire Co., 526 U.S. at 1999 ("In other cases, relevant reliability concerns may focus upon personal knowledge or experience.").
"The focus, of course, must be solely on principles and methodology, not on conclusions that they generate." Daubert, 509 U.S. at 594-95; Elsayed Mukhtar v. California State Univ., 299 F.3d 1053, 1063 (9th Cir. 2002) ("gatekeeper's" role is to exclude "junk science"). The Court must thus make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592-93. Still, "[v]igorous cross examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means" for the opposing party to attack admissible evidence. Daubert 509 U.S. at 596.
Here, Professor Iansiti will be proffered as a technical expert to aid the Court's understanding of the complex technology products at issue in this case. Expert testimony is admissible if it provides the trier of fact a view of complex evidence above the understanding of a lay person. See 4 Weinstein's Federal Evidence § 702.03 (Supp. 2004); see also Davis v. Mason County, 927 F.2d 1473, 1484-85 (9th Cir. 1991) (expert testimony regarding industry standards assisted jury in determining whether Defendant's conduct was negligent).
Expert opinion is especially helpful to the finder of fact when complex technology products are at issue. See Networld, LLC v. Central Corp., 242 F.3d 1347, 1355 (Fed. Cir. 2001) ("Evidence concerning the technological aspects of a patented invention may be of assistance to the court when dealing with complex technologies or those outside of the court's expertise."); Pickholtz v. Rainbow Techs., Inc., 260 F. Supp. 2d 980, 984 (N.D. Cal. 2003) (relying on expert opinion regarding whether product at issue required connection to computer as a peripheral device when undergoing product development).
Oracle contends that neither Professor Iansiti's academic background nor his research, and other expertise are relevant to analyzing the HRM and FMS software products. Each contention lacks merit.
Professor Iansiti's body of scholarly research and his specific research into software product development, operations and management of enterprises and technology integration make him highly qualified to testify as an expert in this case.
Defendant's submission to the court presents only a portion Professor Iansiti's academic and professional qualifications.3 To correct any misapprehensions about Professor Iansiti's qualifications and methodologies occasioned by Defendant's selective approach a complete copy of his CV and his report is provided. See Ex. D (complete copy served upon Defendant on April 26, 2004).
Indeed, Professor Iansiti has had direct experience developing software functions and features to satisfy business requirements. While the vice president of products and strategy at Model N, Inc., he applied his scholarly expertise to create pricing and contract management business applications software to be used by firms in conjunction with the FMS ERP software.13 With responsibility for "product management, product marketing, and strategy," he had to understand the enterprise software needs of his corporate customers. Professor Iansiti has extended his practical knowledge about the impact of technology (software and hardware) selection and implementation on the operations of hundreds of companies through numerous consultations, advisory engagements, and memberships on the boards of directors of technology companies. For example, he served as an advisor to IDe, Inc., an enterprise procurement software applications company whose products interact with the enterprise HRM and FMS products at issue in this case.14 Additionally, Professor Iansiti testified that he served as an advisor to Merloni, a multi-billion-dollar European appliance manufacturer concerning its selection of a ERP system.15 Neither Professor Iansiti's research and experience nor the software selection issues in this case are as narrow as portrayed by Defendant.
The Court will hear substantial lay testimony from customers regarding product selection and requirements. Professor Iansiti's testimony will assist the Court in understanding the software features and functional capability necessary to support the requirements of large complex businesses and why the features and functional capability of certain vendor's HRM and FMS would be inadequate to support Enterprise customer requirements.
Defendant's challenge to Professor Iansiti's methodology is also without merit. Professor Iansiti used a structured methodology, drawn from his field of expertise, to analyze the complex technology products and enterprise operations in this case. He identified certain high function business requirements of large enterprise customers for HRM and FMS software products and compared the software offerings of a large number of software vendors to determine which among them offered software that could functionally satisfy those requirements.
In his scholarly research, Professor Iansiti and his colleagues have used a methodology that he describes as a comparison of independent case studies to understand the challenges that firms encounter in managing their operations in a complicated network of organizations.16 Professor Iansiti's methodologies for evaluating software vendors' capabilities to satisfy the functional requirements of large complex enterprises in this case conforms to his regularly-used methods of academic research and evaluation. Kumho Tire Co., 526 U.S. at 152 ("The objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."); Elsayed Muktar, 299 F.3d at 1063-64 (requiring trial court to ensure that same intellectual rigor is used by expert outside and inside the court room to avoid "junk science"); Tyus v. Urban Search Manag., 102 F.3d 256 (7th Cir. 1996).
In undertaking the research used for his expert report, Professor Iansiti applied a type of structured case-study methodology. As described in his report, after reviewing a variety of sources, including a review of RFP's which he found "useful to ascertain the most important functional and other requirements of enterprises," Professor Iansiti identified a set of criteria that are important to Enterprise customers.17 He established threshold requirements that each vendor must satisfy to be identified for further evaluation: "(a) provide software to the U.S. market; (b) possess business credibility such as financial viability; (c) indicate an explicit and focused effort selling to Enterprise customers (not necessarily to the exclusion of other customers); and (d) supply the basic FMS and HRM functionality," which are described and justified in the first twenty of pages of his report.18 Professor Iansiti's selected focus on core FMS and HRM functionality is consistent with both an assessment of operations that are key to every business and to those areas of significant product overlap that are involved in this case.19 Recognizing that such key functionality would be important--but not sufficient--meeting the business requirements of large enterprises, Professor Iansiti selected an evaluation methodology designed to be inclusive rather than narrowly restrictive.
Defendant also cites a medical malpractice case where the court, following Daubert's focus on excluding "junk science," scrutinized the proffered medical expert's methodology to ensure that the expert's inquiry was grounded in an accepted scientific analysis. See Claar v. Burlington Northern Railroad, 29 F.3d 499, 502-03 (9th Cir. 1994) (excluding medical experts' testimony when the experts failed to respond to court order requiring experts to describe their methodology; experts did not attempt to screen out other medical factors; and expert report cited irrelevant medical literature). However, Claar, like Dabuert itself, involved medical experts, where arguably the most pressing policy concern was that juries would be misled by experts offering novel, untested theories, or even "junk science." See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595-97 (1993) (toxic tort case; new standard will prevent "befuddled juries"); Elsayed Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053, 1063-64 (9th Cir. 2002) (Daubert guards against "junk science" and "is particularly important considering the aura of authority experts often exude, which can lead juries to give more weight to their testimony"); Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1321 n.17 (9th Cir. 1995) (scientific evidence must "not mislead the jury").
There is a fundamental disagreement between the parties about how the merger of Oracle and PeopleSoft would affect the market for high function HRM and FMS software. Oracle's rebuttal to the Plaintiffs' case has contended that the ERP software industry is undergoing a "paradigm-shift" that renders obsolete the industry model that has evolved over the past two or more decades and, thereby, eliminates any antitrust concerns that might flow from the merger of Oracle and PeopleSoft. Defendant posits a model of competition, centered on the integration of the "stack" of software applications, and argues that such integration will protect consumers from anticompetitive effects if the merger is allowed.
At a deeper level, Professor Iansiti's direct experience with software integration products should provide substantial benefit to the Court's understanding.28 Professor Iansiti was an advisor to NetDynamics, the company which developed one of the first pieces of Java applications server software and later sold it to Sun Microsystems.29 The Java applications server software platform is part of the applications integration software platform that Oracle and its experts claim are involved in the "paradigm shift" and should (in combination with other software products) help mitigate any competitive concerns about this merger. Professor Iansiti has conducted fifteen- years of academic and professional research into the challenges facing firms as they try to integrate. He is highly qualified to assist the Court in evaluating Defendant's claim that software "stack" integration will render inconsequential a merger of two of the three software vendors who: 1) have the richest core HRM and FMS offerings; 2) have the deepest set of complementary HRM and FMS software modules; and 3) offer the widest variety of other ERP software pillars (supply chain management ("SCM"), customer relationship management ("CRM"), and business analytics, product life-cycle management ("PLM"). Professor Iansiti can explain, for example, why the integration will extend rather than diminish the coercive power Oracle will obtain by acquiring PeopleSoft.
Professor Iansiti is qualified to provide this Court with expert testimony about the facts that are well beyond "everyday experience." The Court's understanding of the issues in dispute is best served by the Court hearing his testimony and, thereafter, weighing its benefits to issues to be adjudicated.
1. Defendant Oracle Corporation's Memorandum of Points and Authorities In Support of Defendant Oracle Corporation's Motion To Exclude Testimony of Marco Iansiti at 4 [Def.'s Mem.].
2. Even in those instances where an expert's opinions are susceptible to challenge, "[d]isputes as to the strength of [an expert's] credentials . . . methodology, or lack of textual authority for his opinion go to the weight, not the admissibility, of his testimony." McCullock v. H.B. Fuller, Co. 61 F. 3d 1038, 1044 (2d Cir. 1995), citing Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993).
3. Inexplicably, Defendant attached only excerpts of Professor Iansiti's CV to the Daubert brief, excluding pages 3, 6, and 7, and thereby excluding considerable information about his qualifications. Additionally, Oracle has not attached a complete copy of Professor Iansiti's Expert Report, despite repeated citations to it. Oracle excluded portions of Professor Iansiti's report pertaining to his methodology in this case. His descriptions directly contradict Oracle's contentions that the proposed testimony reflected in his report lacks "academic or professional discipline." See Ex. A & B to Decl. of Carolyn Galbreath; Def.'s Mem. at 6.
4. Deposition Transcript of Professor Marco Iansiti (Iansiti Dep. Tr.), May 28, 2004 at p.8. "I am expert in the management of operations, in the management of technology for enterprises, large and small. I'm also expert in product development and innovation and I've also had expertise inI've taught and researched on the strategy behind those  some operations and technology management challenges if you like."
5. The Harvard case method is world-renowned and has been duplicated by business schools around the globe. Professor Iansiti has contributed a substantial body of Harvard case studies and teaching notes involving software companies, such as J.P. Morgan (Bank Zero), Microsoft Office Business, MultiMedia Publications and Microsoft Explorer, Desktop.com, Motive Communications and Yahoo's mail system software, NetDynamics, Inktomi.
6. Harvard University, Division of Engineering and Applied Sciences, Graduate Study: IT and Management, available at http://www.das.harvard.ed/ (last visited 6/7/04).
7. Id; Harvard Business School Press, Preface at xi (1998).
8. Iansiti Dep. Tr. at pgs 32-33, referencing, Marco Iansiti & Alan MacCormack, Developing Products on Internet Time, Harvard Business Review (75th Anniversary Issue) (1997); MacCormack, Verganti & Iansiti, Developing Products On Internet Time: The Anatomy of a Flexible Development Process, 1 Mgmt. Sci. 47 (Jan. 2001).
9. Marco Iansiti & Roy Levien, Strategy as Ecology, 3 Harv. Bus. Rev. 84 (Mar. 2004); Marco Iansiti, F. Warren McFarlan & George Westerman, Leveraging the Incumbent's Advantage, 4 Sloan Mgmt. Rev. 44 (Summer 2003): 58-64; M.McGrath & Marco Iansiti, Envisioning IT-Enabled Innovation, PTRM's Insight (Fall/Winter 1998).
10. Co-authored with Roy Levien, forthcoming from Harvard Business School Press, July 2004.
12. Marco Iansiti & Alan MacCormack, Developing Products on Internet Time, Harv. Bus. Rev. (75th Anniversary Issue) (1997); MacCormack, Verganti & Iansiti, Developing Products On Internet Time: The Anatomy of a Flexible Development Process, 1 Mgmt. Sci. 47 (Jan. 2001).
13. Iansiti Dep. Tr. at 34-35.
14. Id. Professor Iansiti described IDe as offering product life cycle management software along with companies such as Oracle and SAP. Id. at pgs. 38-39. Additionally, he described serving in an advisory capacity to Supplier Market, a procurement solutions platofrm that was purchased by Ariba in 2000. Id. at 39-41.
17. Iansiti Report, at ¶33. Defendant's contention that Professor Iansiti used a "biased sample of the industry" is a red herring. Def.'s Mot. at 8. Professor Iansiti looked to numerous, independent sources to ascertain the software needs of large enterprises. If Defendant believes that those needs are not accurate or broadly required, it may seek to prove such facts at trial to reduce the weight accorded to Professor Iansiti's testimony by the Court.
19. Id. at ¶¶ 17-82.
20. Id. at ¶¶ 131-40.
21. Id. at ¶ 28. "[I] streamlined my analysis to focus on the following three important factors that drive vendor selection in a typical Enterprise:(a) vendor credibility, experience and capabilities; (b) basic software functional requirements for human resource management and/or financial management systems; and c) high function software requirements of an Enterprises's complex and diverse organization." As to the final category, Professor Iansiti notes that: "In general, Enterprises: (a) have a diverse and changing set of organizational units, operating in many Jurisdictions and a variety of geographic locations: (b) require that the operation of each organizational unit is in keeping with its local environment, Jurisdiction and geographical location rather than its organizational boundary; and c) desire to share common financial and human resource information and integrate a variety of common business practices throughout its organizational units, legal entities and geographical locations." Id. at ¶ 16.
22. Id. at ¶¶ 150-60.
23. See as an example, Iansiti Dep. Tr. at 91-96.
24. Iansiti Report at ¶¶161-247.
25. Defendant also cites two cases that are irrelevant to their motion. Although Defendant states on page 6 of its memorandum that Professor Iansiti's report reads like a trial brief, it does not  and could not  claim that Professor Iansiti reaches legal conclusions. Therefore, Defendant's citations to Griffin v. City of Clanton, and Lipsett v. Univ. of Puerto Rico, are irrelevant. See Griffin, 932 F. Supp. 1357 (M.D. Ala. 1996) (excluding affidavit attached to memorandum in opposition to summary judgment that stated legal conclusion); Lipsett, 740 F. Supp. 921, 925 (D.P.R. 1990) (pre-Daubert case excluding testimony that did not aid the jury and was merely repetitive of attorney's argument).
26. Iansiti, M. And Khanna, T, 4 Industrial and Corporate Change 333-61 (1995); see also, M. Iansiti & MacCormack, Technological Evolution, Architecture and the Obsolescence of Firm Capabilities, Harvard Business School, 2002.
27. Iansiti Dep. Tr. at 55; Marco Iansiti, F. Warren McFarlan & George Westerman, Leveraging the Incumbent's Advantage, 44 Sloan Mgmt. Rev. 44, 58-64 (Summer 2003).
28. Iansiti Dep. Tr. at 35-37.
29. Sun Microsystems, Inc., Sun Microsystems, Inc. to Acquire Netdynamics, Inc., July 1, 1998, available at http://www.sun.com/smi/Press/sunflash/9807/sunflash.980701.1.html (last visited 6/8/04). The Sun Microsystems press release stated, "With the acquisition of NetDynamics, Sun will gain a critical component for the enterprise solutions that companies working on next generation network applications are demanding," said Edward J. Zander, Chief Operating Officer of Sun Microsystems, Inc.


DANIEL ELIJAHKANE ARKINSON, JAMIE NICOLE MILSTEN, and MELISSA DAWN SHURTLIFF, Defendants.
Before the Court is Defendant Daniel Arkinson's Motion to Dismiss Count III of the Indictment. (ECF No. 22.) The government opposes the motion to dismiss but agrees that Defendant is entitled to some relief in the form of striking a phrase in Count III. The government will then seek a jury verdict on the remainder of the allegations charged in Count III.
Defendant Arkinson and two co-defendants are each charged with three crimes. Count I charges a “Conspiracy to Commit Robbery Affecting Commerce, ” in violation of 18 U.S.C. § 1951(a). Count II charges “Robbery Affecting Commerce, ” in violation of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2 (Aiding and Abetting). Count III charges “Possession of a Firearm in Furtherance of a Crime of Violence, ” in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and (ii), and 18 U.S.C. § 2 (Aiding and Abetting).
Defendant Arkinson seeks to dismiss the firearm count (Count III) because he claims that it relies upon Count I (Conspiracy) and Conspiracy to commit a Hobbs Act robbery is not a crime of violence under the force clause of 18 U.S.C. § 924(c)(3)(A). Arkinson cites Johnson and Dimaya to argue that the residual clause of section 924(c)(3)(B) is unconstitutional.
That between on or about April 1, 2017, and on or about May 31, 2017, at Helena and within Lewis and Clark County, in the State and District of Montana, the defendants, DANIEL ELIJAHKANE ARKINSON, JAMIE NICOLE MILSTEN, and MELISSA DAWN SHURTLIFF, knowingly possessed a firearm in furtherance of a crime of violence that may be prosecuted in a court of the United States, namely, the crimes alleged in Counts I and II, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and (ii), and 2.
The Grand Jury finds the firearm was brandished.
In response to the motion to dismiss, the government elects to proceed with its proof of Count III by proving that the predicate crime of violence that was committed was that alleged in Count II (the Hobbs Act robbery). Undisputedly, a Hobbs Act robbery is a crime of violence for the purposes of a section 924(c)(1) gun offense. See United States v. Howard, 650 Fed.Appx. 466, 468 (9th Cir. 2016), amended Jun. 24, 2016 (unpublished) (holding Hobbs Act robbery is a crime of violence under the constitutional elements/force clause of 924(c)(3)(A)). The government does not object to striking the phrase “namely, the crimes alleged in Counts I and II, ” and substituting the phrase “namely, the crime alleged in Count II, ” to remove the conspiracy predicate from Count III. The government points out that its allegation in Count III that the three co-defendants knowingly possessed the firearm in furtherance of a Hobbs Act robbery (Count II) is a sufficient allegation by itself to support a jury finding as to Count III.
Arkinson is not satisfied with striking the Count I language from Count III. Instead, Arkinson seeks complete dismissal of Count III on the theory that dismissing one of two predicate crimes would be a substantive alteration of the Indictment. However, the government never needed two predicate crimes of violence because the statutory offense only requires that one predicate crime of violence be committed. 18 U.S.C. § 924(c)(1)(A). The fact that the Grand Jury found that Count III could be proved in two different ways does not negate the fact that one means of proof remains. This is not a fatal variance. See United States v. Miller, 471 U.S. 130, 145 (1985) (holding that removal of one of two means of committing a criminal offense from consideration by the trial jury did not create a fatal variance violating the defendant's right to be tried only on offenses for which a grand jury has returned an indictment).
Arkinson's other argument in favor of complete dismissal of Count III is that the elements/force definition of crime of violence in section 924(c)(3)(A) cannot be satisfied by using aiding and abetting or Pinkerton theories of liability. This argument is not persuasive. It is settled in this circuit that the underlying crime (Hobbs Act robbery) must have occurred and the elements of that offense are incorporated into the elements of the aiding and abetting offense and the Pinkerton liability offense. See United States v. Tubbs, 2017 WL 43158733 (E.D. Cal. 2017) (“Regardless of whether movant was a principal or an aider and abettor of the armed bank robbery charged, movant has failed to show here that armed bank robbery is not a ‘crime of violence' for purposes of [the elements/force clause of] 924(c)(1)(A).”). See also United States v. Fonseca-Caro, 114 F.3d 906, 907 (9th Cir. 1997) (Pinkerton theory of liability).
Accordingly, IT IS HEREBY ORDERED that Defendant Arkinson's Motion to Dismiss Count III (ECF No. 22) is DENIED.


Clement argued that Rimini Street’s interpretation of full prices renders each the phrase full utterly superfluous and the primary sentence of Part 505 with none which means. “The better course [is] to say that ‘full’ means full, rather than nothing at all,” Clement argued.
On the morning of January 14th, the U.S. Supreme Court heard oral arguments in Rimini Street v. Oracle USA, a case that asks the nation’s highest courtroom to determine whether or not the restoration of full prices in a copyright infringement go well with as ruled by 17 U.S.C. § 505 is restricted to taxable prices beneath 28 U.S.C. § 1920 and 28 U.S.C. § 1821 or whether or not non-taxable prices may also be recovered. A lot of the day’s dialogue centered on the which means of full prices and the way that time period had advanced underneath numerous revisions of U.S. copyright regulation, going again to the Copyright Act of 1831.
Arguing for petitioner Rimini Street was Mark Perry, Companion at Gibson Dunn. Perry argued that, though each himself and counsel for Oracle USA have been in settlement on the which means of full in full prices, “the dispute is on ‘costs’ because just as the full moon doesn’t tell us anything about Mars and Venus, ‘full costs,’ we submit, doesn’t tell the court anything about fees and expenses,” he stated. Perry cited to the Supreme Court’s 2006 determination in Arlington Central Faculty District Board of Schooling v. Murphy to notice that SCOTUS has beforehand delineated between “costs,” that are outlined beneath Part 1920, and the extra open-ended time period “expenses,” which might embrace journey bills or salaries.
Justice Sonia Sotomayor questioned Perry on two factors: first, that the which means of full prices in the Copyright Act had a historical past predating the definition of prices in Congressional statute; and whether or not any of the statutes containing the time period full prices recognized by opposing counsel gave the impact to “full” which Perry was arguing. Whereas Perry famous that full prices beneath the Copyright Act was discretionary, such discretion existed beneath Federal Rule of Civil Process 54(d).
As to the historic which means of full prices, Perry contended that, of the 858 copyright instances determined by U.S. district courts between 1831 and 1976 in which prices have been awarded, prices that weren’t on a statutory schedule underneath both state or federal regulation weren’t awarded in a single case.
Justice Elena Kagan requested why Congress ought to have enacted Part 505 in any respect if full prices have been already recognized underneath Part 1920. Perry responded by noting that, of the 208 federal value statutes, 207 make no reference to Part 1920 and lots of of these statutes are in a way redundant of Part 1920. The truth that the second sentence of Part 505 offered for the award of affordable attorneys’ charges additional supported Rimini Street’s argument, Perry argued, because it confirmed that Congress didn’t acknowledge attorneys’ charges as half of the complete prices. Whereas Justice Samuel Alito famous that such charges have been then acknowledged as half of the complete prices by the statute, Perry contended that the statute made clear that different charges, similar to professional witness charges, must be individually offered for to be counted as a price.
“If we read full costs to not invoke those limits [set by Section 1821] but just to permit awards of what’s specified in 1920, would that take care of your problem?” Justice Sotomayor requested. Perry countered that Part 1821 would stay binding beneath a full prices provision, noting that Part 1821 offers for a $40 per day attendance payment for witnesses, the complete value of which have to be awarded by a courtroom. Chief Justice John Roberts requested why petitioners didn’t determine a single case the place this was a problem and Perry responded that value payments are authorised as a matter of course and often aren’t litigated as a result of the fee of opposition is usually higher than the price of the invoice itself. The current case includes a lot bigger prices—Rimini Street believed Oracle was entitled to about $three.5 million in prices whereas Oracle was looking for $17.6 million and had been awarded $12.eight billion in prices.
Arguing for the USA in help of Rimini Street was Allon Kedem, an Assistant in the Workplace of the Solicitor Common on the U.S. Division of Justice. Citing to the Supreme Court’s 1987 determination in Crawford Becoming v. J. T. Gibbons, Kedem argued that the Court’s holding confirmed that precedence of enactment didn’t matter and that Part 1920 presumptively applies in all civil instances regardless of when numerous value provisions have been adopted.
Kedem additionally famous that the Course of Act, enacted by Congress in 1789 simply days after establishing the federal judiciary, which ordered federal courts to take a look at state payment payments to find out the prices that could possibly be shifted between litigants. State statutes imposing both a limitation on prices or a multiplier on prices to be recovered would have made the phrase full in full prices needed in the 1831 Copyright Act, Kedem argued.
Going again to Crawford Becoming, Kedem argued that one profit of that case is that it provides Congress clear directions on the way to embrace prices that aren’t already listed in Part 1920. Kedem contended that the 1976 Copyright Act shifted the supply of full prices from discretionary to obligatory and that it wasn’t till the Ninth Circuit determined 20th Century Fox Movie v. Leisure Distributing in 2005 that something past the gadgets listed in Part 1920 have been counted as half of full prices.
Paul Clement, Companion at Kirkland & Ellis, argued for Respondent Oracle USA. Clement argued that Rimini Street’s interpretation of full prices renders each the phrase full utterly superfluous and the primary sentence of Part 505 with none which means. “The better course [is] to say that ‘full’ means full, rather than nothing at all,” Clement argued.
Whereas Clement agreed that there wasn’t rather a lot of case regulation to offer steerage on this difficulty, he pointed to Ferrett v. Atwill, an 1846 case determined by the Circuit Court for the Southern District of New York. Determined by Justice Samuel Nelson, the courtroom used a federal circuit rule to deal with gadgets of value not beneath New York state regulation and it awarded taxable lawyer and counsel charges for argument. In response to Clement, this undermined petitioner’s argument that full prices would have been nicely understood after 1831 as excluding lawyer and counsel charges.
Giving the phrase “costs” its abnormal which means, as modified by “full,” Clement argued that Congress meant a broader studying of the time period and never one restricted by these taxable prices outlined in Part 1920. In line with Clement, Ferrett confirmed that “full cost” underneath the 1831 Copyright Act had a broader which means than petitioner’s counsel was arguing, and this broader which means was carried ahead by the use of the identical time period in the 1909 and 1976 Copyright Acts.
Relating to the argument that Oracle’s studying of ‘full costs’ renders the second sentence of Part 505 as superfluous, Clement argued that in the course of the interval between 1909 and 1976, full value restoration was obligatory however attorneys’ charges have been discretionary. Within the 1976 regulation, the wording “except as otherwise provided by this title” discovered in the second sentence of Part 505 cross-referenced statutes reminiscent of 17 U.S.C. § 412 to point that sure cures won’t be obtainable however that full prices have been nonetheless recoverable.
discovered in 47 U.S.C. § 605 coated investigatory prices. Whereas there wasn’t a lot in the historical past of the 1976 Copyright Act that targeted on the subject of charges, the 1984 historical past indicated that committee’s perception that full prices coated a broad class of charges. Justice Stephen Breyer famous that his dissent in Murphy adopted an identical concept however that this didn’t characterize the view of the bulk. Clement countered that Murphy was a spending energy case and whereas legislative historical past doesn’t overcome a transparent assertion rule, that historical past may be informative for figuring out a statute’s which means particularly when that historical past avoids rendering statutory language as superfluous.
Justice Sotomayor stated that her drawback with Oracle’s interpretation of full prices was that it was open-ended to the purpose of denying judges a means for exercising affordable discretion. “[U]nder your definition of full costs, I’m assuming the babysitter for the witness who has to come to court is covered,” Justice Sotomayor stated. “I’m assuming experts, which could include experts like a body language reader.” Clements argued that this situation existed outdoors of Oracle’s development of full prices in different statutes which give for restoration of “all expenses” in litigation. Additional, judges had the discretionary capacity to award a proportion of full prices, corresponding to in the current case, the place the district courtroom decide awarded 75 % of non-taxable prices to Oracle.
The Supreme Court returned to Perry for a rebuttal argument in which he pointed to a 1961 report from the Register of Copyrights on revisions to U.S. copyright regulation, which indicated that prices in copyright instances have been low as a result of they don’t embrace skilled witness charges or rediscovery prices; this report was half of the legislative historical past for the 1976 Copyright Act. Different statutes enacted with the 1976 act expressly approved skilled witness charges, indicating that Congress would have talked about such charges in the event that they have been to be included in full prices. As to Clement’s level on Ferrett, Perry countered that Rimini Street’s level wasn’t that attorneys’ charges have been by no means awarded, however that non-scheduled charges have been by no means included in full prices.


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EDITO GULFO AND EMMANUELA GULFO, PETITIONERS, VS. JOSE P. ANCHETA, RESPONDENT.
We resolve the petition for review on certiorari, tiled by Edito Gulfo and Emmanuela Gulfo, under Rule 45 of the Rules of Court, to assail the decision of the Court of Appeals (CA) in CA-G.R. CV No. 68784 dated June 27, 2006. The CA reversed and set aside the resolution dated June 20, 2000 of the Regional Trial Court (RTC); Branch 253, Las Piñas City, and remanded the case to the RTC for trial on the merits.
The petitioners are the neighbors of Jose Ancheta (respondent). The parties occupy a duplex residential unit on Zodiac Street, Veraville Homes, Almanza Uno, Las Piñas City. The petitioners live in unit 9-B, while the respondent occupies unit 9-A of the duplex.
Sometime in 1998, respondent’s septic tank overflowed; human wastes and other offensive materials spread throughout his entire property. As a result, respondent and his family lived through a very unsanitary environment, suffering foul odor and filthy premises for several months.
In the early months of 1999, the respondent engaged the services of Z.E. Malabanan Excavation & Plumbing Services to fix the overflow. It was then discovered that the underground drainage pipe, which connected respondent’s septic tank to the subdivision’s drainage system, had been closed by cement that blocked the free flow of the wastes from the septic tank to the drainage system.
The respondent narrated that the petitioners had just recently renovated their duplex unit and, in the process, had made some diggings in the same portion where the drainage pipe had been cemented. The respondent added that the closing of the drainage pipe with cement could not have been the result of an accident, but was the malicious act by the petitioners. On May 19, 1999, the respondent filed a complaint for damages against the petitioners with the RTC, alleging that the petitioners maliciously closed a portion of the respondent’s drainage pipe and this led to the overflowing of the respondent’s septic tank.
On June 24, 1999, the petitioners moved to dismiss the complaint on the ground of lack of jurisdiction. The petitioners argued that since the parties reside in the same subdivision and are also members of the same homeowners’ association (Veraville Homeowners Association, Inc.), the case falls within the jurisdiction of the Home Insurance and Guaranty Corporation (HIGC).
The petitioners noted that the HIGC is a government-owned and -controlled corporation created under Republic Act No. 580 which vested the administrative supervision over homeowners’ associations to the Securities and Exchange Commission (SEC). This law was later repealed by Executive Order No. 535 which transferred the regulatory and adjudicative functions of the SEC over homeowners’ associations to the HIGC.
Considering that defendants have complied with the Order of this Court dated May 2, 2000 and have substantiated their allegations that Veraville Homeowners I Association, Almanza Uno, Las Piñas City is duly registered with the Home Insurance Guranty [sic] Corporation, this Court is of the considered view that it has no jurisdiction over the instant case, as this Court cannot arrogate unto itself the authority to resolve a controversy, the jurisdiction over which is initially lodged with an administrative body equipped with special competence for the purpose.
WHEREFORE, for lack of jurisdiction[,] the instant case is ordered DISMISSED. (italics supplied).
Aggrieved, the respondent appealed the RTC ruling to the CA. The respondent maintained the argument that no intra-corporate dispute existed.
On June 27, 2006, the CA reversed the judgment of the RTC and remanded the case to the lower court for trial on the merits. The CA ruled that the factual allegations in the complaint support the claim for damages. The CA noted that although the case involves a dispute between members of the homeowners’ association, it is not an intra-corporate matter as it does not concern the right of the corporation to exist as an entity.
The petitioners moved for reconsideration, but the CA denied the motion in its resolution of November 7, 2006; hence, the present petition.
We resolve in this petition the lone issue of whether the CA erred in ruling that the RTC has jurisdiction over this dispute.
We deny this petition for lack of merit.
Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.
Since the issue of damages arising from the Civil Code, not intra-corporate controversy, is involved, the RTC is the appropriate court with the power to try the case, not the homeowners’ association, pursuant to Section 19(8) of Batas Pambansa Bilang 129, as amended by Republic Act No. 7691.
We take this opportunity to reiterate what constitutes intra-corporate disputes. Jurisprudence consistently states that an intra-corporate dispute is one that arises from intra-corporate relations; relationships between or among stockholders; or the relationships between the stockholders and the corporation. In order to limit the broad definition of intra-corporate dispute, this Court has applied the relationship test and the controversy test.
These two tests, when applied, have been the guiding principle in determining whether the dispute is an intra-corporate controversy or a civil case.
Under this test, no doubt exists that the parties were members of the same association, but this conclusion must still be supplemented by the controversy test before it may be considered as an intra-corporate dispute. Relationship alone does not ipso facto make the dispute intra-corporate; the mere existence of an intra-corporate relationship does not always give rise to an intra-corporate controversy. The incidents of that relationship must be considered to ascertain whether the controversy itself is intra-corporate. This is where the controversy test becomes material.
Under the controversy test, the dispute must be rooted in the existence of an intra-corporate relationship, and must refer to the enforcement of the parties' correlative rights and obligations under the Corporation Code, as well as the internal and intra-corporate regulatory rules of the corporation, in order to be an intra-corporate dispute. These are essentially determined through the allegations in the complaint which determine the nature of the action.
In light of these, the case before us involves a simple civil action — the petitioners' liability for civil indemnity or damages—that could only be determined through a full-blown hearing tor the purpose before the RTC.
WHEREFORE, we hereby DENY the petition, and AFFIRM the Decision dated June 27, 2006 and the Resolution dated November 7, 2006 of the Court of Appeals in CA-G.R. CV No. 68784. The records of the case are hereby REMANDED to the Regional Trial Court of Las Piñas City, Branch 253, for trial on the merits. In light of the age of this case, we hereby DIRECT the Regional Trial Court to prioritize the hearing and disposition of this case.
Carpio, (Chairperson), Villarama, Jr.,* Perez, and Reyes, JJ., concur.
* Designated as Acting Member of the Second Division in lieu of Associate Justice Maria Lourdes P. A. Sereno per Special Order No. 1274 dated July 30, 2012.
 Penned by Associate Justice Mariflor P, Punzalan Castillo, and concurred in by Associate Justices Mario L. Guariña III and Noel G. Tijam; id, at 89-96.
 AN ACT TO CREATE THE HOME FINANCING COMMISSION, TO STIMULATE HOME BUILDING AND LAND OWNERSHIP AND TO PROMOTE THE DEVELOPMENT OF LAND FOR THAT PURPOSE, PROVIDE LIBERAL FINANCING THROUGH AN INSURED MORTGAGE SYSTEM, AND DEVELOP THRIFT THROUGH THE ACCUMULATION OF SAVINGS IN INSURED INSTITUTIONS.
 AMENDING THE CHARTER OF THE HOME FINANCING COMMISSION, RENAMING IT AS HOME FINANCING CORPORATION, ENLARGING ITS POWERS, AND FOR OTHER PURPOSES.
 Del Rosario v. Gerry Roxas Foundation, Inc., G.R. No. 170575, June 8, 2011, 651 SCRA 414, 416-417, citing Spouses Huguete v. Spouses Embudo, 453 Phil. 170, 176-177 (2003); and Co Tiamco v. Diaz, 75 Phil. 672, 683-684 (1946).
 Annex “B”; rollo, pp. 45-47.
 AN ACT EXPANDING THE JURISDICTION OF THE METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS, AND MUNICIPAL CIRCUIT TRIAL COURTS, AMENDING FOR THE PURPOSE BATAS PAMBANSA BLG. 129, OTHERWISE KNOWN AS THE "JUDICIARY REORGANIZATION ACT OF 1980."
 Strategic Alliance Development Corporation v. Star Infrastructure Development Corporation, G.R. No. 187872, November 17, 2010, 635 SCRA 380, citing Sps. Abejo v. Judge De la Cruz, 233 Phil. 668, 681 (1987).
 Speed Distributing Corp. v. Court of Appeals, 469 Phil. 739, 758-759 (2004).
 211 Phil. 222, 230-231 (1983).
 DMRC Enterprises v. Este Del Sol Mountain Reserve, Inc., 217 Phil. 280, 299 (1984).
 Reyes v. Regional Trial Court of Makati, Br. 142, G.R. No. 165744, August 11, 2008, 561 SCRA 593, 611.

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Eric Reuss is a Type 2 abortionist (part-time abortionist.) Reuss testified he performs approximately 20 abortions per year, including medical and surgical abortions.
State of AZ, license verification -- Eric M. Reuss, MD (search by name) Declaration of Eric Reuss, MD - Planned Parenthood Arizona v. Mark Brnovich -- Plaintiff Eric Reuss testifies he performs approx. 20 abortions per year, including medical & surgical abortions. See pages 121-125. Planned Parenthood Arizona v. Brnovich - Complaint, 6-4-2015 -- Plaintiff Eric Reuss, MD, performs a total of approximately 20 medical and surgical abortions per year. See page 5. "Latest abortion bill is meant to bully" - Opinion piece by abortion provider Eric Reuss, MD - The Arizona Republic, 3-15-2015 Eric Reuss, MD - photo bio -- Scottsdale Obstetrics & Gynecology (ob/gyn office; Reuss also occasionally performs medical and surgical abortions) "Pro-choice" Scottsdale OB/GYN isn't really for choice Pro-choice interests challenge SB 1318 -- Arizona Independent, 5-27-2016 -- Eric Reuss, MD, is a plaintiff in lawsuit against Arizona legislation Arizona Women's Health Providers File Federal Lawsuit Challenging New Abortion Restrictions Law -- Tucson Weekly, 6-4-2015 ACLU.org -- Planned Parenthood Arizona, Inc. v. Brnovich - (Arizona Medication Abortion Restrictions) -- Case updates and legal documents Type 2 Abortionist: These are people who do occasional abortions in their offices but do not necessarily want to be known as an abortion provider. In fact, if asked, they might even deny doing abortions.
Abortion op-ed: "Latest abortion bill is meant to bully"
2010-10-15 Resnick and Brown v. Scottsdale Healthcare Corp, Eric Reuss, and others.
2006-07-28 -- Johnson v. Scottsdale Healthcare Corp, Eric Reuss, and others.
The ACLU and Planned Parenthood sue the state of Arizona over abortion restrictions. Eric Reuss, MD, is a plaintiff in the lawsuit.
Christina Reuss and Eric Reuss file motions in family court per their children.
Case numbers for 6 lawsuits.
2010-05-20 -- Kingsley v. Scottsdale OB & Gyn Specialists. Eric Reuss is NOT NAMED in the document.
2006-06-16 -- Rochelle Robson v. G. Burt Webb and Scottsdale OB & Gyn. Eric Reuss is NOT NAMED in the document.
2005-06-15 -- Williams v. Scottsdale Healthcare Corp. Eric Reuss is NOT NAMED in the document.
Photo bio for Eric Reuss, MD, MDH, at his ob/gyn office.
Abortionist testimony from plaintiff Eric Reuss, MD. Reuss performs approximately 20 abortions per year, and describes his techniques for medical and surgical abortions. See pages 120-125.
Contains testimony from plaintiff Eric Reuss, MD. Reuss performs approximately 20 abortions per year. See page 5.
List of Arizona lawsuits involving Eric Reuss.


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Justia › US Law › US Case Law › US Supreme Court › Volume 215 › United States v. Union Supply Co.
Where corporations are as much within the mischief aimed at by a penal statute and as capable of willful breaches of the law as individuals, the statute will not, if it can be reasonably interpreted as including corporations, be interpreted as excluding them.
impossible, the guilty defendant is not to escape the other which is possible.
Section 6 of the Act of May 9, 1902, c. 784, 32 Stat. 193, imposing certain duties on wholesale dealers in oleomargarine and imposing penalties of fine and imprisonment for violations applies to corporations, notwithstanding the penalty of imprisonment cannot be inflicted on a corporation.
"And any person who willfully violates any of the provisions of this section shall, for each such offense, be fined not less than fifty dollars and not exceeding five hundred dollars, and imprisoned not less than thirty days nor more than six months."
The corporation moved to quash the indictment, and the district court quashed it on the ground that the section is not applicable to corporations. Thereupon the United States brought this writ of error.
excluded. They are as much within the mischief aimed at as private persons, and as capable of a "willful" breach of the law. New York Central & Hudson River R. Co. v. United States, 212 U. S. 481. If the defendant escapes, it does so on the single ground that, as it cannot suffer both parts of the punishment, it need not suffer one.
It seems to us that a reasonable interpretation of the words used does not lead to such a result. If we compare § 5, the application of one of the penalties, rather than of both, is made to depend not on the character of the defendant, but on the discretion of the judge, yet there, corporations are mentioned in terms. See Hawke v. E. Hulton & Co., (1909) 2 K.B. 93, 98. And if we free our minds from the notion that criminal statutes must be construed by some artificial and conventional rule, the natural inference, when a statute prescribes two independent penalties, is that it means to inflict them so far as it can, and that, if one of them is impossible, it does not mean, on that account, to let the defendant escape. See Commonwealth v. Pulaski County Agricultural & Mechanical Association, 92 Ky.197, 201. In Hawke v. E. Hulton & Co., (1909) 2 K.B. 93, it was held that the words "any person" in one section of a penal act did not embrace a corporation, notwithstanding a statute like our Rev.Stat. § 1. But that was not so much on the ground that imprisonment was contemplated as a punishment as because the person convicted was to be "deemed a rogue and a vagabond." Moreover, it was thought that corporations could be reached under another section of the act.

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These Terms and Conditions (as amended, restated or otherwise modified from time to time, the “Terms”), together with the terms of an applicable Purchase Order executed by the parties (each, a “Purchase Order”; together with the Terms, collectively, the “Agreement”) governs Your provision of the Products (defined below) to Sturdivant Ventures, LLC d/b/a Landseye, a California limited liability company ("Landseye). This Agreement supersede all prior agreements, proposals and discussions among the parties with respect to the supply and purchase of the Products. To the extent there is a conflict between this Agreement and any Purchase Order or other document, this Agreement shall prevail.
As used herein, “You” or “Your” or “Licensed Producer” means the entity (and/or any individual, agent, entity or successor entity acting on Your behalf) selling or transferring Products to Landseye according to an applicable Purchase Order, and the “Parties” means You and Landseye.
THESE TERMS AND CONDITIONS SET FORTH LEGALLY BINDING TERMS REGARDING THE SALE AND TRANSFER OF THE PRODUCTS. BY DELIVERING PRODUCT UNDER A PURCHASE ORDER AND/OR TRANSFERRING PRODUCTS TO LANDSEYE, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE READ THIS DOCUMENT CAREFULLY.
Title Transfer subject to the satisfaction of the Standard Conditions for Product Purchase. Subject to the terms and conditions hereof, including but not limited to satisfaction of the Standard Conditions for Product Purchase contained in Exhibit A, Licensed Producer will sell to Landseye and Landseye will purchase from You all of the right, title, benefit and interest of Licensed Producer’s in and to the cannabis goods of the type and in the amount specified in the applicable Purchase Order (the “Product” or “Products”). The applicable Purchase Order shall contain: (a) a description of the Products to be sold upon satisfaction of the Standard Conditions for Product Purchase; (b) the quantity of the Products to be sold; (c) the unit and total purchase price payable to You for the Products (the “Purchase Price”); and (d) the delivery date of the Products (the “Delivery Date”).
Purchase Price shall be specified on an applicable Purchase Order; Cultivation Tax Retained. The parties acknowledge and agree that the Purchase Price shall be specified on an applicable Purchase Order. The parties acknowledge and agree that the taxes required to be retained by Landseye for purchase of the Products from Licensed Producer as set forth under California Cannabis Tax Law Cannabis Tax Law and related regulations including, but not limited to, 18 C.C.R. §3700 et seq. (“Cultivation Tax”). Unless otherwise specified on an applicable Purchase Order, the Purchase Price will be payable to You upon satisfactory completion of the Standard Conditions for Product Purchase (“Payment Date”). The Cultivation Tax shall be withheld on the Payment Date.
Licensed Producer represent and warrants to Landseye that it operates a licensed commercial cannabis business for the cultivation and/or manufacture of cannabis and cannabis goods operating under the laws of the State of California pursuant to the Medicinal and Adult-Use Cannabis Regulation and Safety Act and related regulations and amendments as may be promulgated from time to time by both the State and local jurisdiction in which Licensed Producer operates.
Licensed Producer has produced and handled the Products in a sanitary and workmanlike manner and in compliance with all applicable laws including, but not limited to, 3 C.C.R. §40100 et seq., 3 C.C.R. §8000 et seq., 16 C.C.R. §5000 et seq. and the California Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”), as applicable.
Licensed Producer is and shall at all times remain in material compliance with all applicable laws relating to this Agreement and the Products.
Licensed Producer shall obtain and maintain all permits necessary for the exercise of its rights and performance of Licensed Producer’s obligations under these Terms and Conditions, including but not limited to California Board of Equalization seller’s permits, if applicable.
At the time Licensed Producer transfers possession of the Products to Landseye, Licensed Producer is the owner of the Products with good title to the Products, free and clear of all liens, charges, encumbrances and any other rights of others.
At the time Licensed Producer transfers title of the Products to Landseye, Licensed Producer is the owner of the Products with good title to the Products, free and clear of all liens, charges, encumbrances and any other rights of others.
The Products shall be of good merchantable and usable quality, free of defects and suitable for which the Products are intended to be marketed and sold.
The sale of the Products to Landseye, and the use of the Products by Landseye, will not infringe, violate or diminish any third party intellectual property, or third party rights therein or thereto.
Licensed Producer further represents and warrants that it shall at all times collect the required taxes on the sale of the Products to Landseye and remit such taxes collected as required under applicable local, state, and federal laws.
Licensed Producer represents, warrants and covenants that it maintains, and will continue to maintain, true and accurate records of its Product sales to Landseye, Product sales to third parties, purchases from third parties and sales thereto, and taxes due on such sales and purchases to the State of California and local jurisdiction in which Licensed Producer operates as well as any such other records that must be kept pursuant to the recordkeeping requirements as may be established from time to time by the State of California, including but not limited to 16 C.C.R. §5025 et seq., 16 C.C.R. §5037 et seq., 3 C.C.R. §8108 et seq., 3 C.C.R. §8400 et seq., 17 C.C.R. §40264 et seq., 17 C.C.R. §40500 et seq., and local law, regulation or ordinance (collectively, “Records”).
Licensed Producer acknowledges and agrees to keep the Records pertaining to Landseye’s Products including, but not limited to pricing for product sales and wholesale costs, confidential, but may be required by law, court order, or otherwise to reveal any or all of such information to third parties, including governmental authorities (“Third Party Request”). In such event as Licensed Producer is in receipt of such a Third Party Request, Licensed Producer acknowledges and agrees to notify Landseye within twenty-four hours (24) of receipt of such a request at the address in Section K.10 below.
Licensed Producer shall and at its own expense: (a) maintain facilities as required by the State of California to perform its duties under this Agreement; (b) obtain and maintain required certifications, credentials, licenses, and permits necessary to conduct business in accordance with this Agreement; and (c) take commercially reasonable steps to adhere to industry best practices as to the proper storing, maintaining, handling and transporting of the Products in a clean and healthy manner, in accordance with: (i) industry best practices, and (ii) in accordance with local and state rules and regulations. Licensed Producer warrants to Landseye that for a period of twelve months Licensed Producer shall not engage in any unfair, misleading, or deceptive practices respecting Landseye, Landseye’s Trademarks or the Products, including any product disparagement during the Term of this Agreement. Licensed Producer’s warranties are cumulative and in addition to any other warranty provided by law or equity.
Licensed Producer shall maintain and provide a valid seller’s permit number and resale certificate to Landseye. Licensed Producer shall remain fully responsible for charging and remitting all state and local taxes due on Licensed Producer’s sale of the Products as required by applicable state and local laws.
Licensed Producer agrees to at all times adhere to and comply with Landseye’s Standards of Production Practices set forth in Exhibit B.
Licensed Producer agrees to provide to all applicable storage instructions for the Products.
Licensed Producer agrees to give notice to Landseye no later than forty-eight (48) hours from receipt of any consumer or safety complaints that may arise from or are related to this Agreement and/or the Products, including but not limited to cause for a recall, and shall, in every reasonable manner, deal appropriately with such complaints after prompt and meaningful consultation with Landseye.
During the term of this Agreement and for a period of two (2) years thereafter, Licensed Producer shall, at its own expense, maintain and carry insurance in full force and effect that includes, but is not limited to, commercial general liability (including product liability) with limits no less than $1,000,000 for each occurrence and $2,000,000 in the aggregate with financially sound and reputable insurers. Upon Landseye’s request, Licensed Producer shall provide Landseye with a certificate of insurance and policy endorsements for all insurance coverage required by this Section C.17, and shall not do anything to invalidate such insurance. Licensed Producer agrees to provide Landseye with thirty (30) days' advance written notice in the event of a cancellation or material change in Licensed Producer’s insurance policy. Except where prohibited by law, Licensed Producer shall require its insurer to waive all rights of subrogation against Landseye’s insurers and Landseye.
Upon acceptance of a Purchase Order, Licensed Producer will, upon request, make available to Landseye and its authorized representatives all information known or data bases recorded or stored by means of any device, including in electronic form, title documents, reports, studies, permits, licenses and all other records in its possession or under its control relating to the Products (“Records”). Licensed Producer will give Landseye and its authorized representatives every reasonable opportunity to have access to and to inspect the Products, and will permit Landseye to take samples of the Products for purposes of confirming that the purity, potency and quality of the Products is satisfactory to Landseye as set forth in the procedures described in Exhibit A hereto. Licensed Producer will also permit the inspection of the Products prior to the Transfer by such governmental authorities as required by law or regulation.
Licensed Producer shall keep complete and accurate Records related to the applicable Products for a period of seven (7) years from each Delivery Date.
Shipment and Delivery Requirements. Unless otherwise agreed in writing, You will deliver the Products to Landseye at Landseye’s licensed facility (the “Facility”), or such location to be provided in writing prior to the Delivery Date. Time, quantity and delivery to the delivery location are of the essence under the Agreement. You shall procure materials for, pack, mark and ship Products strictly in the quantities, by the methods, to the delivery locations and by the delivery dates, specified in these Terms and Conditions or as otherwise agreed in writing. If Licensed Producer does not comply with any of its delivery obligations under this Section E.1, Landseye may, in Landseye's sole discretion and at Licensed Producer’s sole cost and expense, (a) approve a revised Delivery Date, (b) require expedited or premium shipment, or (c) cancel the Purchase Order. You may make partial shipments of Products to Landseye only with the prior written approval of Landseye.
Transfer of Title and Risk of Loss. Title to Products shipped under these Terms and Conditions passes to Landseye solely upon the satisfaction of the conditions precedent set forth in Exhibit A hereto (the “Conditions”). Upon satisfaction of the Conditions, title will transfer to Landseye even if Licensed Producer has not been paid for such Products, provided that Landseye will not be relieved of its obligation to pay for Products in accordance with the terms hereof. Notwithstanding any agreement between Landseye and You concerning transfer of title or responsibility for shipping costs, risk of loss to Products shipped under any Purchase Order passes to Landseye upon receipt and acceptance by Landseye at Landseye’s Facility, and You will bear all risk of loss or damage with respect to Products until Landseye's receipt and acceptance of such Products at its Facility in accordance with the terms hereof.
Inspection and Acceptance. Products are subject to Landseye's inspection and approval or rejection notwithstanding Landseye's prior receipt of, or payment for, the Products. Landseye shall have a reasonable period of time, not less than ten (10) business days following delivery of the Products to the delivery location ("Inspection Period"), to inspect all Products received (including third party laboratory testing) and to inform You, in writing, of Landseye's rejection of any nonconforming Products. Landseye shall have the sole discretion in determining whether the Products are satisfactory in all respects, including that the Products delivered to Landseye conforms to the previous samples provided to Landseye and that the Products meets the purity, potency or quality standards established by the Landseye. If Landseye rejects any nonconforming Products, Landseye may elect to require You, at Your sole cost, to replace the rejected Products, or to accept the destruction of the rejected Products in exchange for a full refund of the Purchase Price; in each case without limiting the exercise by Landseye of any other rights available to Landseye under these Terms and Conditions or pursuant to applicable law. Products that are not rejected within the Inspection Period will be deemed to have been accepted by Landseye; provided, however, that Landseye's acceptance of any Products will not be deemed to be a waiver or limitation of Your obligations pursuant to these Terms and Conditions (or any breach thereof), including those obligations with respect to Your warranties and duty to indemnify Landseye.
Licensed Producer acknowledges and agrees that the Products purchased hereunder may be re-sold or transferred by Landseye under the trademarks, trade names or logo of Landseye or its licensor(s). Licensed Producer acknowledges and agrees that use of such marks is strictly for the purpose of identifying the source of the goods, consistent with the reputation and high quality associated with the marks, and is in no way intended to constitute commercial promotion. Any reference herein to selling or sales is intended solely to facilitate access to high quality medical cannabis products for qualified patients.
All trade names, trademarks, service marks, logos, designs, identifications, artwork, and other symbols and devices relating to Landseye or its licensor(s) or its products or services (collectively, “Landseye Property”) shall remain the sole property of Landseye or its licensor(s). Licensed Producer is not licensed or otherwise authorized to use the Landseye Property in any way.
Subject to this Section G, this Agreement shall be effective as of the date of the first Purchase Order executed by the Parties and will remain in full force and effect for a period of one (1) year from the most recent Purchase Order executed by the Parties. These Terms and Conditions may be terminated by notice given by either Party if a breach of any representation, warranty, covenant, obligation or other provision of these Terms and Conditions has been committed by the other Party and such breach has not been waived.
Sections D (Examination of Products and Records), F (Trademarks and Intellectual Property Rights), H (Confidentiality), I (Indemnification), K (No Liability for Consequential or Indirect Damages) and L (General) shall survive any termination or expiration of this Agreement.
During the term of this Agreement and for a period of three (3) years following the most recent Delivery Date, each of Landseye and You agree to hold and maintain the Confidential Information of the other in the strictest confidence. Each of Landseye and You shall divulge such Confidential Information only to its employees, agents or subcontractors who clearly require access to it for the purposes of these Terms and Conditions and who have been notified by the disclosing party that the Confidential Information they have received is to be held in the strictest confidence. Each party shall be liable to the other for all reasonably foreseeable damages, including reasonable attorney fees, in the event that this confidentiality provision is violated and shall be liable for any such violation by its agents, assignees and employees. Upon termination of this Agreement, any tangible Confidential Information, along with any copies thereof, shall be returned to the disclosing party, or destroyed, at the sole option of the disclosing party, except as otherwise prohibited by law.
Subject to the terms and conditions of the Agreement, each party (as "Indemnifying Party") shall indemnify, defend and hold harmless the other party and its representatives, officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, "Indemnified Parties") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under these Terms and Conditions and the cost of pursuing any insurance providers, incurred by any Indemnified Party (collectively, "Losses"), relating to or resulting from any third-party Claim or any direct Claim against Indemnifying Party alleging: (a) breach or non-fulfillment of any of Indemnifying Party's representations, warranties, or covenants set forth in these Terms and Conditions; (b) any negligent or more culpable act or omission of Indemnifying Party or any of its representatives (including any recklessness or willful misconduct) in connection with Indemnifying Party's performance under these Terms and Conditions; (c) any bodily injury, death of any person or damage to real or tangible personal property caused by the willful or negligent acts or omissions of Indemnifying Party or any of its Representatives; or (d) any failure by Indemnifying Party or its Personnel to comply with any Applicable Laws.
EXCEPT FOR LIABILITY FOR INDEMNIFICATION, IN NO EVENT SHALL EITHER PARTY OR ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS AND CONDITIONS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
This Agreement, including for the avoidance of doubt any Agreement and any applicable Purchase Order(s), constitutes the complete and exclusive agreement between the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, oral and written, between the parties relating to the subject matter herein. Landseye may amend the Terms at any time by reasonable notice, including without limitation by posting revised terms on its website at www.landseye.com/caspltc, which amended terms and conditions shall be binding upon You Producer with respect to any subsequent transaction.
Nothing herein shall be construed to create a joint venture or partnership between the parties hereto or an employer/employee relationship. Licensed Producer expressly acknowledges that it is an independent contractor of Sturdivant and a member of the Landseye. Neither party shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any third party.
Licensed Producer may not assign, sublicense, or otherwise transfer this Agreement or its obligations or benefits or any part thereof hereunder without the prior written consent of Sturdivant, and any such assignment, sublicense or transfer in contravention of this provision shall be null and void. This Agreement shall inure to the benefit and be binding upon the parties hereto, and their respective successors and permitted assigns.
This Agreement shall be construed and interpreted and the rights of the parties determined in accordance with the local laws of the State of California, without regard to its conflict of law rules. Unless otherwise agreed upon in writing by the parties, any legal action or proceeding between Sturdivant and You for any purpose concerning this Agreement or the parties’ obligations hereunder shall be subject to the exclusive jurisdiction of and venue in any competent court within San Francisco, California and the parties hereby consent to the personal and exclusive jurisdiction and venue of such courts. To the fullest extent permitted by law, each party hereby waives any right to a trial by jury in connection with any action hereunder.
Neither party shall be responsible to the other party for failure to perform under this Agreement, when and to the extent such failure is caused by or results from acts beyond the affected party’s reasonable control, including but not limited to, fires, civil disobedience, riots, embargoes, explosions, rebellions, strikes or work stoppages (except those involving the employees or agents of the party seeking the protection of this clause), acts of God or acts of any governmental authority or any other similar occurrence (each a “Force Majeure Event”). A party affected by a Force Majeure Event shall give prompt notice of such event to the other party, and use commercially reasonable efforts to end the failure to perform and minimize the effects of such Force Majeure Event. The non-affected party may terminate this Agreement if such failure to perform continues for a period of thirty (30) days or more.
IN THE ABSENCE OF PRIOR WRITTEN CONSENT OF LANDSEYE, YOU SHALL NOT ADVERTISE, ANNOUNCE OR PUBLISH IN ANY MANNER THAT YOU HAVE CONTRACTED TO FURNISH THE PRODUCTS TO LANDSEYE HEREUNDER.
To the extent there is a conflict between these Terms and Conditions and any Purchase Order, the provisions of these Terms and Conditions shall take precedence.
All notices pursuant to the Agreement shall be in writing, addressed as set forth below (or to such other address that may be designated by the receiving party in accordance with this Section), and shall be deemed given when: (a) delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight carrier (receipt requested); (c) on the date sent by facsimile (with confirmation of transmission if sent during normal business hours of the recipient), and on the next business day if sent after normal business hours of the recipient; (d) on the third day after the date mailed, by certified or registered mail, return receipt requested; or (e) on the date sent by electronic mail (with confirmation of transmission if sent during normal business hours of the recipient), and on the next business day if sent after normal business hours of the recipient.
To You: To the contact listed in an applicable Purchase Order.
YOU ACKNOWLEDGE THAT BY SIGNING THE PURCHASE ORDER AND/OR SUPPLYING PRODUCTS TO LANDSEYE, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS DESCRIBED ABOVE AND IN THE PURCHASE ORDER. ADDITIONALLY, BY YOUR SIGNATURE ON ANY AND ALL PURCHASE ORDERS YOU CERTIFY THAT YOU HAVE READ THESE TERMS AND CONDITIONS, THAT YOU KNOW AND UNDERSTAND THE MEANING AND INTENT OF THIS DOCUMENT AND THAT YOU ARE ENTERING INTO THIS AGREEMENT KNOWINGLY AND VOLUNTARILY. YOU ACKNOWLEDGE THAT AS PART OF THE CONSIDERATION FOR ANY SALES AND PURCHASES THAT MAY TAKE PLACE BETWEEN LANDSEYE AND YOU, ALL PURCHASE ORDERS AND SHIPMENTS SHALL BE SUBJECT TO THE TERMS AND CONDITIONS STATED ABOVE.
Visual inspection for microbial impurities such as mold, excessive moisture, or rot, and aesthetic impurities such as excessive stems, seeds, or seed pods.
Visual inspection for unwanted particulates in cannabis product.
Weight verification of quantity of cannabis or cannabis product to the gram (distinguishing tare weight from net weight) using Landseye scales.
At the discretion of Landseye, Product that fails the preliminary quality inspection may be rejected. Failure shall be clearly and immediately communicated to the Licensed Producer.
The estimated time frame for receiving test results.
Landseye shall arrange for a licensed third party testing lab to take samples of the Product(s) provided by Licensed Producer for inspection and testing.
Product(s) held in pre-testing quarantine shall be tested by Landseye-contracted licensed testing lab facility. Product(s) that receive a passing certificate of analysis from the Landseye licensed third party testing lab shall be purchased and title transferred to Landseye as set forth under this Agreement. Payment for such a Product purchase shall be scheduled by Landseye and Licensed Producer shall be notified of such payment.
Landseye shall contact the Licensed Producer within one business day of receiving failing test results from the licensed third party testing lab. Product(s) with failed test results must be given back to the Licensed Producer without payment. As set forth under this Agreement, title shall not pass to Landseye for failed Products. Licensed Producer must schedule pick up of failing Product(s). Failure to arrange such pick up may result in the destruction of the Products at Licensed Producer’s expense.
If passing test results are received Landseye shall arrange for payment and title to the Products provided under a specific Purchase Order shall transfer to Landseye. Landseye shall retain the state taxes required by regulations at such time as payment is made to Licensed Producer.
(A) Forced Labor. Licensed Producer certifies that it does not use any forced labor – prison, indentured, bonded or otherwise.
(B) Labor. Licensed Producer certifies that no person shall be employed in any facility at an age younger than 21.
(C) Harassment or Abuse. Licensed Producer certifies every employee shall be treated with respect and dignity. No employee shall be subject to any physical, sexual, psychological or verbal harassment or abuse.
(D) Nondiscrimination. Licensed Producer certifies that no person shall be subject to any discrimination in employment, including hiring, salary, benefits, advancement, discipline, termination or retirement, on the basis of race, religion, gender, age, disability, sexual orientation, nationality, political opinion, social or ethnic origin, or any other characteristic that is protected by applicable law.
(E) Health and Safety. Licensed Producer certifies that workers will be provided a safe and healthy working environment to prevent accidents and injury to health arising out of, linked with, or occurring in the course of work or as a result of the operation of contractors’ facilities.
(F) Freedom of Association and Collective Bargaining. Licensed Producer certifies that, as applicable, employees’ rights to freedom of association and collective bargaining will be recognized and respected.
(G) Wages and Benefits. Licensed Producer certifies that it complies with all applicable wage and hour laws and regulations, and that employees will be paid at least the minimum wage required by local law, or the prevailing industry wage, whichever is greater.
(H) Hours of Work/Overtime. Licensed Producer certifies that it complies with applicable regulations concerning work hours mandated by state and local laws and uses overtime only when employees are compensated according to state and local law. Licensed Producer further certifies that it will not allow employees to exceed the maximum number of overtime hours provided by state and local laws.
(I) Benefits. Licensed Producer certifies that it complies with all applicable provisions for legally-mandated benefits, including but not limited to heath care; child care; sick leave; contributions for social security; life, health, worker’s compensation and other insurance mandated by state and local law.
(J) Environment. Licensed Producer certifies that complies with applicable environmental regulations.
(K) Documentation and Inspection. Licensed Producer agrees to: (i) certify to Landseye in writing, as requested by Landseye, that each of the above-listed standards is being met; (ii) maintain on file such documentation as may be needed to demonstrate compliance with the Standards of Production Practices; (iii) make these documents available in the English language to Landseye for inspection upon request; and (iv) provide employees with the opportunity to report noncompliance with the Standards of Production Practices, free from punishment or prejudice for so doing.