Stephen D. Milbrath, Allen, Byer, Doppelt, Milbrath, and Gilchrist, Orlando, Florida, argued for plaintiff-appellant.
David J. Gaskey, Howard & Howard Attorneys, P.C., Bloomfield Hills, Michigan, argued for plaintiff-appellees. With him on the brief was William H. Honaker.
Before NEWMAN, MICHEL, and CLEVENGER, Circuit Judges.
Woodland Trust appeals the judgment1 of the United States District Court for the Middle District of Florida, holding United States Patent 4,763,440 (the '440 patent) invalid based on prior knowledge and use by others. Because uncorroborated oral testimony, particularly that of interested persons recalling long-past events, does not, of itself, provide the clear and convincing evidence required to invalidate a patent on this ground, the judgment is reversed.
(e) sprinkling said covering with water through said elevated sprinklers as the ambient temperature drops to about 32F., whereby the water from said elevated sprinklers freezes in the openings of said covering and holds heat released during operation of said ground-level sprinklers under said covering.
The patent application was filed on July 1, 1983; the patent issued on August 16, 1988. In response to Woodland's suit for patent infringement, filed in 1993, Flowertree Nursery pled several defenses, including patent invalidity under 35 U.S.C. § 102(a), § 102(b), and § 103. Under § 102(a), Flowertree stated that the method was previously known and used by each of Joseph Burke and William Hawkins (an owner of Flowertree) in the 1960s and 1970s at their nurseries in Florida, and was then discontinued by these users in 1976 and 1978. The district court found that Hawkins' system at Flowertree was reconstructed in 1988.
Four witnesses testified in support of the defense of prior knowledge and use: Mark Hawkins, Joseph Burke, Charles Hudson, and John Kaufmann. Mark Hawkins is the son of William Hawkins; he testified that his father's system, on which he worked as a child, was destroyed by a tornado in 1978, and was not reconstructed until 1988. Joseph Burke is a nursery owner who has known William Hawkins since the 1960s; he testified that he used the same system as shown in the patent, but tore it down in 1976 and did not rebuild it. Charles Hudson is a nursery owner who had worked for Joseph Burke, and John Kaufmann is a life-long friend of William Hawkins; they testified that they observed the patented system at the Burke or Hawkins nursery, before its use was discontinued. Woodland provided conflicting testimony; a witness named Marcus Crosby explained that he described the patented system to William Hawkins, his employer at Flowertree in 1988, after learning about it during his prior employment with Gregory James.
The district court credited the statements of all of the Flowertree witnesses, holding that "to discredit those witnesses in this case the court would be obliged to conclude that all four were deliberate perjurers." On the basis of this testimony the district court found that the apparatus claims of the '440 patent were anticipated under 35 U.S.C. § 102(a) by the Hawkins and Burke systems "which constitute prior art that was known publicly for many years before the filing date of the application for patent," and that the method claims of the '440 patent were anticipated under § 102(a) by the Burke method which was "openly and publicly used in the ordinary course of business" such that "the methods claimed in the patent were 'known' and 'used' by others more than one year before the filing date of the original application for the patent." The district court held the patent invalid, and did not discuss other defenses raised by Flowertree.
Section 102(a) establishes that a person can not patent what was already known to others. If the invention was known to or used by others in this country before the date of the patentee's invention, the later inventor has not contributed to the store of knowledge, and has no entitlement to a patent. Accordingly, in order to invalidate a patent based on prior knowledge or use, that knowledge or use must have been available to the public. See Carella v. Starlight Archery, 804 F.2d 135, 139, 231 U.S.P.Q. 644, 646 (Fed. Cir. 1986) (the § 102(a) language "known or used by others in this country" means knowledge or use which is accessible to the public); 35 U.S.C. § 102(a) reviser's note (1952) (noting that " 'known' has been held to mean 'publicly known' " and that "no change in the language is made at this time"); P.J. Federico, Commentary on the New Patent Act (1954) reprinted in 75 J. PAT. TRADEMARK OFF. SOC'Y Y 161, 178 (1993) ("interpretation [of § 102(a) ] by the courts excludes various kinds of private knowledge not known to the public"; these "narrowing interpretations are not changed"). See also Coffin v. Ogden, 85 U.S. (18 Wall.) 120, 124-25, 21 L. Ed. 821 (1873) (accessible hence anticipating prior use); Gayler v. Wilder, 51 U.S. (10 How.) 477, 497-98, 13 L. Ed. 504 (1850) (nonaccessible hence nonanticipating prior use).
Therefore, notwithstanding abandonment of the prior use--which may preclude a challenge under § 102(g)--prior knowledge or use by others may invalidate a patent under § 102(a) if the prior knowledge or use was accessible to the public. See generally Edward C. Walterscheid, The Ever Evolving Meaning of Prior Art (pts. 1 & 8), 64 J. PAT. OFF. SOC'Y 457, 462-64 (1982), 66 J. PAT. OFF. SOC'Y 573, 574-78 (1984) (discussing the policies implemented by the several subparts of § 102).
However, when an asserted prior use is not that of the applicant, § 102(b) is not a bar when that prior use or knowledge is not available to the public. See W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1550, 220 U.S.P.Q. 303, 310 (Fed. Cir. 1983) (third party secret commercial activity, more than one year before the patent application of another, is not a § 102(b) bar); KAYTON, supra, § 4.41 ("Where the commercially advantageous, secret use is by a third party and even though that use is for a period more than one year before the applicant's filing date, it cannot constitute a statutory time bar under § 102(b)."); cf. Baxter Int'l, Inc. v. COBE Laboratories, Inc., 88 F.3d 1054, 1058-59, 39 U.S.P.Q.2d 1437, 1440 (Fed. Cir. 1996) (third party prior use accessible to the public is a § 102(b) bar).
Woodland argues that the uncorroborated oral testimony of persons related to or associated with the defendant can not provide the clear and convincing evidence that precedent requires to establish prior knowledge and use, particularly in view of the many years of asserted commercial use, the passage of time after the asserted use, and the acknowledged abandonment of the system by both asserted prior users. Flowertree responds that the district court's finding of prior use turned entirely on credibility, and that the credibility assessment of the trier of fact is entitled to great respect and should not be overturned on appeal.
Price, 988 F.2d at 1195 n. 3, 26 U.S.P.Q.2d at 1037 n. 3. Such an analysis can be described as application of a "rule of reason" to the corroboration requirement. See Mahurkar v. C.R. Bard, Inc., 79 F.3d 1572, 1577, 38 U.S.P.Q.2d 1288, 1291 (Fed. Cir. 1996) (citing Barbed Wire Patent Case, 143 U.S. 275, 12 S. Ct. 443, 36 L. Ed. 154 (1892) and explaining that the corroboration requirement "arose out of a concern that inventors testifying in patent infringement cases would be tempted to remember facts favorable to their case by the lure of protecting their patent or defeating another's patent").
In view of the unsatisfactory character of testimony, arising from the forgetfulness of witnesses, their liability to mistakes, their proneness to recollect things as the party calling them would have them recollect them, aside from the temptation to actual perjury, courts have not only imposed upon defendants the burden of proving such devices, but have required that the proof shall be clear, satisfactory, and beyond a reasonable doubt.
Witnesses whose memories are prodded by the eagerness of interested parties to elicit testimony favorable to themselves are not usually to be depended upon for accurate information.
As to the exact standard of the burden of persuasion on prior use, Justice Brown in the Barbed Wire Patent Case did at one point refer to proof "beyond a reasonable doubt," the extremely stringent standard of criminal law. But in later cases, the Court seemed to construe the burden as one of "clear and convincing evidence," a test used in a number of areas of patent law.
1 DONALD S. CHISUM, PATENTS § 3.05 at 3-86 (Rel. May 1988).
The oral evidence on this point falls far short of being enough to overcome the presumption of novelty from the granting of the patent. The temptation to remember in such cases and the ease with which honest witnesses can convince themselves after many years of having had a conception at the basis of a valuable patent, are well known in this branch of law, and have properly led to a rule that evidence to prove prior discovery must be clear and satisfactory. Barbed Wire Patent Case, 143 U.S. 275, 284 ; Loom Co. v. Higgins, 105 U.S. 580, 591, 26 L. Ed. 1177 .
Eibel, 261 U.S. at 60, 43 S. Ct. 322. In that case the standard of "clear and satisfactory" evidence was held not met by the oral evidence of interested persons.
The context suggests that in these and like phrases the courts were not defining a standard in terms of scientific accuracy or literal precision, but were offering counsel and suggestion to guide the course of judgment. Through all the verbal variances, however, there runs this common core of thought and truth, that one otherwise an infringer who assails the validity of a patent fair upon its face bears a heavy burden of persuasion, and fails unless his evidence has more than a dubious preponderance.
293 U.S. at 8, 55 S. Ct. 928. This guidance, applied to this case, reinforces the heavy burden when establishing prior public knowledge and use based on long-past events. The Supreme Court's view of human nature as well as human recollection, whether deemed cynical or realistic, retains its cogency. This view is reinforced, in modern times, by the ubiquitous paper trail of virtually all commercial activity. It is rare indeed that some physical record (e.g., a written document such as notes, letters, invoices, notebooks, or a sketch or drawing or photograph showing the device, a model, or some other contemporaneous record) does not exist.
In this case, despite the asserted many years of commercial and public use, we take note of the absence of any physical record to support the oral evidence. Cf. Eibel, 261 U.S. at 60, 43 S. Ct. 322 ("not a single written record, letter, or specification of prior date"). The asserted prior knowledge and use by Hawkins and Burke was said to have begun approximately thirty years ago and to have continued for about a decade. Hawkins testified that his prior use was terminated in 1978, and the district court found that Hawkins' system was not reconstructed until 1988. The relationship of the witnesses and the fact that the asserted prior uses ended twenty years before the trial, and were abandoned until the defendant reportedly learned of the patentee's practices, underscore the failure of this oral evidence to provide clear and convincing evidence of prior knowledge and use. The district court did not rely on the two undated photographs, and indeed their lack of detail and clarity can not have provided documentary support.
With the guidance of precedent, whose cautions stressed the frailty of memory of things long past and the temptation to remember facts favorable to the cause of one's relative or friend, we conclude that this oral evidence, standing alone, did not provide the clear and convincing evidence necessary to invalidate a patent on the ground of prior knowledge and use under § 102(a).
The judgment of invalidity on this ground is reversed. The case is remanded for further proceedings.


"a corporation . . . keeping accounts upon any basis other than that of actual receipts and disbursements, unless such other basis does not clearly reflect its income, may, subject to regulations of the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, make its return upon the basis upon which its accounts are kept, in which case the tax shall be computed upon its income as returned."
Held, that where the taxpayer's books, reflecting its income, were kept upon an "accrual" basis -- i.e., by charging against income earned during the taxable period (1916) the expenses incurred in and attributable to the process of earning income during that period -- and made its return upon that basis and not the basis of actual receipts and disbursements, it was permitted under the statute, as correctly construed by a Treasury regulation, to include in its deductions the amount of a "reserve" entered on its books for taxes imposed by the United States on the profits of munitions made and sold by the taxpayer during that year, although the tax had not "accrued" in the sense of having been assessed and become due, and that it was not permissible, as the taxpayer attempted, to defer deduction of the tax until the income return for the following year, during which the tax became due and was paid. Pp. 269 U. S. 438, 269 U. S. 441.
2. Findings considered and held to show that the books of a taxpayer were kept on the basis of accruals and reserves to meet liabilities incurred. P. 269 U. S. 442.
3. In a suit to recover a tax erroneously exacted, the burden is on the plaintiff to prove the facts establishing invalidity of the tax. P. 269 U. S. 443.
60 Ct.Cls. 100, id., 440, reversed.
Appeals from judgments of the Court of Claims in two suits brought by the Trustees in dissolution of the Burton-Richards Company, a corporation, and by the Yale & Towne Manufacturing Company to recover income taxes alleged to have been erroneously exacted under the Revenue Act of 1916.
The appellees in both cases brought suit in the Court of Claims to recover payments of corporate income taxes alleged to have been erroneously exacted. From judgments in their favor, the government brings the cases to this Court on appeal. Judicial Code, § 242, before amendment of 1925.
additional questions as are involved in No. 337 will then be taken up.
The appellee, Yale & Towne Manufacturing Company, a Connecticut corporation, was, in 1916, engaged in the manufacture of munitions. The tax imposed by the United States on the profits on munitions manufactured by it and sold during that year became due and was paid in 1917. In making its return for income tax for the year 1917, the appellee deducted from its gross income the amount of the munitions tax thus paid. Later, the Commissioner of Internal Revenue held that the munitions tax paid in 1917 should have been deducted from the appellee's gross income in its return for 1916. There was in consequence an adjustment of the income taxes payable in those years, resulting in a net increase of the tax payable for the year 1917 of $116,044.40, which was assessed and paid under protest and is the amount for which suit was brought.
accounts are kept, in which case the tax shall be computed upon its income as so returned. . . ."
In the year 1916, the appellee set up on its books of account all the obligations or expenses incurred during the year, whether they fell due and whether they were paid during that year. It entered in an account "Reserves for Taxes" items of various kinds of taxes liability for which was incurred by reason of its operations for that year, whether paid or payable during the year. Included in the reserves for taxes for 1916 were items aggregating $247,763.19 for taxes on profits from the sale of munitions during the year. The return for the munitions tax was made by the appellee in 1917, and the tax, after revision and an additional assessment, was paid in 1917, the year when it was due.
It is urged by the government that the appellee, not having kept its books or made its tax return on the basis of receipts and disbursements, has elected to avail itself of the privilege afforded by § 13(d) of making its return on what was referred to in the briefs and argument as "the accrual basis;" that, having so elected, it is required consistently to deduct from gross income all items appearing on its books as expenses accruing or incurred during the taxable year, including its reserve for munitions taxes, whether payable or not.
profits for the year. But it contends that the munitions tax was deductible only in 1917, because, under the Revenue Act of 1916, only taxes actually paid during the year were deductible in determining net income for the year, and that, in any case, the provisions of that Act and the regulations made by the Commissioner authorizing the taxpayer to make his returns on an "accrual" basis if his books are so kept could have no application to tax deductions, since a tax does not accrue until it is due and payable.
While § 12(a), taken by itself, would appear to require the income tax return to be made on the basis of actual receipts and disbursements, it is to be read with § 13(d), which we have quoted and which obviously limits, in some respects, the operation of § 12(a) by providing in substance that a corporation keeping its books on a basis other than receipts and disbursements may make its return on that basis provided it is one which reflects income.
as nearly as possible the actual liabilities for which the accruals are made, and provided that, in cases wherein deductions are made on the accrual basis as hereinbefore indicated, income from fixed and determinable sources accruing to the corporations must be returned, for the purpose of the tax, on the same basis."
It also provided in substance that, when the taxpayer, following a consistent accounting practice, sets up reserves to meet liabilities, the "amount of which or date of maturity" is not definitely determinable, such reserve may be deducted from gross income. The decision also laid down a procedure for readjusting such reserves when the amount actually required for that purpose was definitely ascertained, and provided that, if returns upon this basis of "accrual or reserves" did not reflect true net income, the taxpayer would not be permitted to make its return on any other basis than that of "actual receipts and disbursements."
We think that the statute was correctly interpreted by the Commissioner, and that his decision referred to was consistent with its purpose and intent.
The Revenue Acts of 1909 and 1913 authorized a method of computing the income of corporations which did not differ materially from that provided by § 12(a) of the Act of 1916. They required in terms that net income should be ascertained by deducting from gross income received, interest, expenses, and taxes actually paid and losses actually sustained, but contained no provision corresponding to § 13(d) of the Act of 1916 by which a return might be made on the basis of the taxpayer's books of account. Corporation Excise Tax Act Aug. 5, 1909, c. 6, § 38, 36 Stat. 11, 112; Corporation Income Tax Act Oct. 3, 1913, c. 16, § II, subd. G, 38 Stat. 114, 172.
requirements of the 1909 and 1913 Acts for computing income on the basis of receipts and disbursements, and that, under both Acts, the administrative practice was established, by appropriate Treasury Regulations, permitting the use of inventories and authorizing deduction of expenses constituting a liability of the taxpayer, whether paid or not, in ascertaining net income, but that those regulations did not permit the deduction of taxes except in the year when paid. From this it is argued that Congress, by reenacting in § 12(a) of the Act of 1916 the corresponding provisions of the earlier Acts, adopted the settled administrative practice, and that accordingly, under that Act as well as under the earlier Acts and Treasury Regulations, taxes could be deducted only in the year when paid.
This argument would have force had Congress stopped with the enactment of § 12(a). By thus adopting, without material change, the corresponding provisions of earlier Acts, Congress might have been deemed to have recognized and adopted the established practice of the Department interpreting and applying them. National Lead Co. v. United States, 252 U. S. 140. But, in the Act of 1916, Congress added § 13(d), which did not have its counterpart in earlier legislation. This section went further than any previous regulations by authorizing the tax return to be made on the basis on which the taxpayer's books were kept, provided only that the basis was one reflecting income and the return complied with regulations made by the Commissioner.
the right of the Commissioner to require the return to be made on the basis of receipts and disbursements.
A consideration of the difficulties involved in the preparation of an income account on a strict basis of receipts and disbursements for a business of any complexity, which had been experienced in the application of the Acts of 1909 and 1913 and which made it necessary to authorize by departmental regulation, a method of preparing returns not in terms provided for by those statutes, indicates with no uncertainty the purpose of §§ 12(a) and 13(d) of the Act of 1916. It was to enable taxpayers to keep their books and make their returns according to scientific accounting principles, by charging against income earned during the taxable period the expenses incurred in and properly attributable to the process of earning income during that period, and indeed, to require the tax return to be made on that basis if the taxpayer failed or was unable to make the return on a strict receipts and disbursements basis.
The appellee's true income for the year 1916 could not have been determined without deducting from its gross income for the year the total cost and expenses attributable to the production of that income during the year. The reserve for munitions taxes set up on its books for 1916 must have been deducted from receivables for munitions sold in that year before the net results of the operations for the year could be ascertained. The taxpayer, being unable to make its return on a strict receipts and disbursements basis and not having attempted to do so, could not have complied with § 13(d) and Treasury Decision 2433 by deducting either accruals of interest or expenses alone without the other, or without deducting other reserves made on its books to meet liabilities, such as the munitions tax, incurred in the process of creating income.
sold in 1916 did not accrue until 1917. In a technical legal sense, it may be argued that a tax does not accrue until it has been assessed and becomes due; but it is also true that, in advance of the assessment of a tax, all the events may occur which fix the amount of the tax and determine the liability of the taxpayer to pay it. In this respect, for purposes of accounting and of ascertaining true income for a given accounting period, the munitions tax here in question did not stand on any different footing than other accrued expenses appearing on appellee's books. In the economic and bookkeeping sense with which the statute and Treasury decision were concerned, the taxes had accrued. It should be noted that § 13(d) makes no use of the words "accrue" or "accrual," but merely provides for a return upon the basis upon which the taxpayer's accounts are kept, if it reflects income -- which is precisely the return insisted upon by the government. We do not think that the Treasury Decision contemplated a return on any other basis when it used the terms "accrued" and "accrual" and provided for the deduction by the taxpayer of items "accrued on their books."
whether the deductions to be made from the testator's gross estate were ascertainable for the purpose of determining the estate tax. The question which we now have to determine was not raised, considered, or decided in that case.
We conclude that the reserves for taxes which appeared on appellee's books in 1916 were deductible under § 13(d) of the Act of 1916 and Treasury Decision 2433 in its income tax return on the accrual basis for that year.
munitions tax was returned and ultimately assessed and paid in the sum of $112,419.54.


text:
Present: KNOWLTON, C. J., LATHROP, BARKER, HAMMOND, & BRALEY, JJ.
A corporation organized under Pub. Sts. c. 115, "to provide a home for working girls at moderate cost," having no capital stock, and none of the income or profits of its business being divided among its members, can be found to be a charitable institution within the meaning of R. L. c. 12, § 5, cl. 3, and its property therefore to be exempt from taxation under that clause.
BARKER, J. The petitioner is a corporation organized under Pub. St. c. 115, "to provide a home for working girls at moderate cost." The petition is for the abatement of a tax assessed on the land and building of the corporation. It was tried without a jury, and the presiding judge upon facts either agreed to by the parties or found by him at the hearing found and ruled that the petitioner was entitled to an abatement, and reported the case for our decision. The tax was assessed as of May 1, 1903, and the question in the court below was whether the petitioner had shown that its property was exempt under the provisions of R. L. c. 12, § 5, cl. 3, concerning the property of literary, benevolent, charitable and scientific institutions. The decision of the trial judge was that upon the facts stated in the report the petitioner's property was exempt. The present question is whether it appears as matter of law that that decision was wrong. See New England Theosophical Co. v. Assessors of Boston, 172 Mass. 60 .
This court has often considered the meaning of the words "benevolent" and "benevolence." See Saltonstall v. Sanders, 11 Allen 446 , 465-471; Roteh v. Emerson, 105 Mass. 431 ; Chamberlain v. Stearns, 111 Mass. 267 ; Suter v. Milliard, 132 Mass. 412 ; Massachusetts Society for the Prevention of Cruelty to Animals v. Boston, 142 Mass. 24 ; Young Men's Protestant Temperance & Benevolent Society v. Fall River, 160 Mass. 409 ; New England Theosophical Co. v. Assessors of Boston, ubi supra. It never has decided whether every benevolent institution, to be entitled to the exemption, must also be charitable. Young Men's Protestant Temperance & Benevolent Society v. Fall River and New England Theosophical Co. v. Assessors of Boston, ubi supra.
It is not necessary in the present case to decide that question if upon the facts stated in the report the purpose and work of the petitioner in furnishing a home for working girls at moderate cost fairly could be found by the court below to have been charitable.
In the present conditions of life there is a large class of young women who have no homes of their own, and who must work hard and suffer privation. Though not paupers, they are so poor as to make it a work of charity to provide for them a home. The individuals of the class change from day to day. They are sufficiently numerous and so a part of the public, and are so connected with it and with the public welfare as to give to the work of providing a home for any individuals comprised in the class that quality of indefiniteness in the persons helped, which with the charitable purpose aimed at makes a public charity in the legal sense. The work is entirely analogous to that of the "supportation, aid and help of young tradesmen [and] handicraftsmen," recognized in the statute of charitable uses as one species of a public charity. St. 43 Eliz. c. 4.
or is used or appropriated for other than literary, educational, benevolent, charitable, scientific or religious purposes.
The occupation of the property is that of the corporation itself, and not of those to whom it affords a home, just as the occupation of a college dormitory or refectory is that of the institution of learning rather than that of its students, and is for the exact purpose for which the petitioner was incorporated, rather than for the private purposes of the inmates of the home.
Upon the facts stated it cannot be said that the judge erred in law in finding and ruling that the petitioner was entitled to an abatement and to judgment in the sum stated in the report. See Minns v. Billings, 183 Mass. 126 .
Judgment is to be entered for the petitioner in accordance with the report.
F. A. North, (J. P. Russell with him,) for the petitioner.
P. Nichols, for the respondent.

matches:
§ 5
§ 5
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.


A. Notice of the hearing must be published in a newspaper of general circulation within the territorial limits of the jurisdiction at least 15 days, but not more than 45 days prior to the hearings. (O.C.G.A. §§ 36-66-4(a); 1-3-1(d)(3)).
B. The notice must state the time, place and purpose of the hearing. The notice should specify that the local government will conduct public zoning hearings: the first one on the policies and procedures for calling and conducting zoning hearings, the second one on the standards which govern the exercise of zoning power, and the third one on the adoption of the official zoning ordinance and the official zoning map. A sample advertisement is attached which provides notice for all three hearings.
2. If there is no newspaper of general circulation in the County, then the notice presumably should appear in the newspaper in which legal advertisements appear.
A. Policies and procedures which will govern the calling and conducting of zoning hearings. (O.C.G.A. § 36-66-5).
2. The local government is free to adopt whatever policies and procedures it desires except that the statute requires that the procedures provide equal time for proponents and opponents to make presentations, with a minimum of ten minutes per side. The requirement must be included in the policies and procedures. (O.C.G.A. § 36-66-5(a)).
B. Standards governing the exercise of the zoning power. (O.C.G.A. § 36-66-5(b)). The local government is free to adopt whatever standards it desires.
1. The standards must be in writing and copies available to the public.
2. Suggested standards are set out in Guhl v. Holcombe Bridge Road Corp., 238 Ga. 322, 232 S.E.2d 830 (1977); or in O.C.G.A. § 36-67-1 et. seq.
C. The proposed zoning ordinance and official zoning map or maps.
1. The official zoning ordinance and the official zoning map must be physically present at each hearing.
2. The map should have the title that is referenced in the text of the zoning ordinance, such as "Official Zoning Map of XYZ County or City."
A. The original of the map should be maintained in a location specified in the text of the ordinance, usually the zoning administrator's office or the clerk's office.
B. Written copies of the policies and procedures and the standards governing zoning decisions must be copied and made available to the public at each zoning hearing. (O.C.G.A. § 36-66-5).
The best practice in adopting a zoning ordinance is to have three separate public hearings. The first public hearing at the time advertised should be called to consider the proposed policies and procedures for conducting hearings. After closing that hearing, a second public hearing should be called to adopt the standards that govern the exercise of zoning power. After closing that hearing, a third hearing should be called to consider the adoption of the official zoning ordinance and the official zoning map. The three public hearings may be called in succession at the same local government meeting. The newspaper obviously should specify the time the hearing will start. (See attached sample notice.) The policies and procedures and the standards may be incorporated into the body of the zoning ordinance and all three may be adopted at the same time.
The Board of Commissioners for the County of Clayton, Georgia, will hold public hearings on the adoption of the official zoning ordinance and map, the policies and procedures governing the calling and conducting of zoning public hearings, and on the zoning standards which governing the exercise of zoning power of Clayton County. The public hearing on the policies and procedures governing the calling and conducting of zoning public hearings will be called at 7:00 p.m. on the ____day of July, 2007 at the following location______. The public is invited to comment. Immediately after receiving public comments on the policies and procedures, the Board of Commissioners will hold a second public hearing at the same location on the standards governing the exercise of zoning power. The public is invited to comment. Immediately after receiving public comments on the standards, the Board of Commissioners will hold a third public hearing at the same location on the adoption of the official zoning ordinance and the zoning map. The public is invited to comment. Copies of the proposed policies and procedures governing the calling and conducting zoning hearings, the standards governing the exercise of zoning power, and the official zoning ordinance and map are available for public inspection in the office of _________ located at ________________.


text:
1. On January 16, 2011, Jean-Claude Duvalier, president of Haiti from 1971 to 1986, returned to the Republic of Haiti after 25 years in exile in France. The government of Jean-Claude Duvalier was characterized by systematic, gross violations of human rights. The Inter-American Commission on Human Rights (hereinafter the “Inter-American Commission”, the “Commission”, or the “IACHR”) documented the situation in its Report on the Situation of Human Rights in Haiti, published in 1979 and prepared on the basis of an in loco observation visit conducted in Haiti from August 16 through 25, 1978.
3. After Jean-Claude Duvalier’s return to Haiti, the Inter-American Commission reminded the Haitian State of its duty to investigate, prosecute, punish and redress the human rights violations. Then, on March 28, 2011, the Commission held a public hearing on impunity for human rights violations during the Duvalier dictatorship. At that hearing the representatives of the State reported on Haiti’s willingness to prosecute the human rights violations perpetrated under the regime of Jean-Claude Duvalier, on the judicial investigations being conducted since Duvalier’s return to the country, and on the difficulties that the Haitian system of justice is encountering in conducting those investigations. Accordingly, they requested technical support from the international community and, in particular, from the IACHR.
4. The Inter-American Commission welcomes the Haitian authorities’ commitment to investigate and punish those responsible for the gross human rights violations committed during the regime of Jean-Claude Duvalier. In response to the public request for technical assistance made by the State and civil society organizations, the IACHR is issuing this statement in order to collaborate with the Haitian justice system in the investigation and punishment of the serious human rights violations committed during the regime of Jean-Claude Duvalier.
5. The Commission will briefly set out Haiti’s international human rights obligations and will conclude that the torture, extrajudicial executions and forced disappearances committed during the regime of Jean-Claude Duvalier are crimes against humanity that, as such, are subject neither to a statute of limitations nor to amnesty laws.
6. On September 27, 1977, Haiti deposited its instrument of accession to the American Convention on Human Rights (hereinafter the “American Convention”), which entered into force on July 18, 1978. Pursuant to Article 276(2) of the Haitian Constitution, this international treaty has become part of Haitian domestic law and abrogates any and all laws contrary to it. Furthermore, on March 20, 1998, Haiti accepted the binding jurisdiction of the Inter-American Court of Human Rights (hereinafter the “Inter-American Court”).
9. As the IACHR and the Inter-American Court have held, a State has an international obligation to investigate and punish serious human rights violations, even those that occurred prior to the date on which the American Convention entered into force for that State. Accordingly, the Haitian State’s duty to investigate and punish extends to those serious violations that occurred prior to July 18, 1978, the date on which the American Convention entered into force, and that have gone unpunished. The IACHR also recalls that OAS member States have an international obligation to guarantee the human rights recognized in the American Declaration of the Rights and Duties of Man, adopted in 1948.
10. Crimes against humanity were defined for the first time in the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgement of the Tribunal, adopted by the International Law Commission of the United Nations in 1950. The United Nations General Assembly approved these principles before the regime of Jean-Claude Duvalier ever began in Haiti. This confirms the fact that the prohibition of crimes against humanity had already acquired jus cogens status at the time the aforementioned gross violations of human rights were committed in Haiti.
11. The Inter-American Court acknowledged that the Nuremberg Charter played an important role in establishing the elements that characterize a crime as a “crime against humanity.” Accordingly, for the inter-American system, crimes against humanity are any inhuman act, committed in a context of generalized or systematic attacks against civilians. Even one such act, when committed in the context described, would suffice for a crime against humanity to exist. Crimes against humanity are gross violations of human rights that affect humanity as a whole. The damage caused by these crimes endures within the national society and the international community, both of which demand that those responsible be investigated and punished.
14. Thus, it is clear that the torture, extrajudicial executions and forced disappearances committed during the regime of Jean-Claude Duvalier constitute crimes against humanity that must not go unpunished, are not subject to any statutory limitations and, as will be shown below, cannot be the subject-matter of amnesty. The State must remove all obstacles standing in the way of compliance with the obligation to investigate and punish those responsible, such as statutory limitation, the non-retroactivity of criminal law and the principle of non bis in idem, and must use every means at its disposal to conduct the investigation expeditiously.
15. The combined case law of the inter-American human rights system holds that amnesty laws for serious human rights violations are incompatible with the American Convention.
16. The first time the Inter-American Commission addressed the question of amnesty laws was in its 1985-1986 Annual Report. In 1992, the Commission issued a series of decisions on individual cases in which it held, for the first time, that amnesty laws are incompatible with the American Convention. Since then, both the Inter-American Commission and the Inter-American Court have had occasion to elaborate upon their case law on this subject.
17. States that adopt laws whose effect is to deny judicial protection and exercise of the right to a simple and prompt recourse are violating articles 8 and 25 of the American Convention, in combination with articles 1(1) and 2 thereof. Such laws lead to the defenselessness of victims, precludes the identification of the individuals who are responsible for human rights violations and perpetuate impunity. Hence, because amnesty laws are manifestly incompatible with the American Convention, they lack legal effect and must not obstruct the investigation of serious human rights violations and the identification and punishment of those responsible.
19. All regional human rights systems have held that amnesties for serious human rights violations are incompatible with international law. Similarly, the supreme courts of a number of members of the Organization of American States have incorporated this jurisprudence into their own case law, thereby observing in good faith their international obligations.
20. As the Inter-American Commission had requested in its final observations in the Case of Gelman, the Inter-American Court held that the fact that an amnesty law has been upheld in a popular referendum does not make it legitimate under international law. In its judgment, the Court ruled that “the protection of human rights constitutes an insurmountable limitation to majority rule, that is to say, to the sphere of things that are “susceptible to being decided” by a majority in the context of democratic initiatives” (the Executive Secretariat’s translation).
21. Finally, when the Legislative Branch adopts laws that are contrary to the American Convention, the Judicial Branch is bound to honor the obligation to respect rights, as stated in Article 1(1) of the said Convention; consequently, it must refrain from enforcing any laws contrary to that Convention.
22. The Commission will now briefly turn its attention to the case law of the Inter-American Court on the subject of forced disappearance, extrajudicial execution and torture. The purpose of this summary is to provide the Haitian justice system with a guide to use in the investigation and punishment of the serious human rights violations committed during the regime of Jean-Claude Duvalier.
23. The inter-American system was one of the first to build a body of comprehensive case law on the continuing and autonomous nature of the crime of forced disappearance of persons.
24. In one of its earliest judgments, the Inter-American Court wrote that “[t]he forced disappearance of human beings is a multiple and continuous violation of many rights under the Convention that the States Parties are obligated to respect and guarantee.” These are the rights to life, to personal liberty, and to humane treatment. The Court has also written that forced disappearance also involves a violation of the right to juridical personality. The elements constituting forced disappearance are: a) deprivation of liberty; b) direct involvement of governmental agents or their acquiescence; and c) refusal to acknowledge the detention and to disclose the fate and whereabouts of the person concerned.
25. The established case law holds that the acts that constitute a forced disappearance have a permanent nature and that their consequences imply multiple offenses to the rights recognized by the American Convention, so long as the whereabouts of the victim or his/her remains is unknown. Correspondingly, the obligation to investigate and punish forced disappearance of persons has attained the status of jus cogens.
26. A State’s international responsibility is compounded when “the forced disappearance forms part of a systematic pattern or practice applied or tolerated by the State”, thus making it “a crime against humanity involving a gross rejection of the essential principles on which the inter-American system is based.” In order not to replicate the conditions of impunity, the State must adopt all measures necessary to investigate and punish those responsible.
27. The obligation to undertake an investigation any time there are reasonable causes to suspect that a person has been submitted to forced disappearance “exists regardless of the filing of a complaint, since in cases of forced disappearance international law and the general duty to guarantee, impose the obligation to investigate the case ex officio, without delay, and in a serious, impartial, and effective manner.” The obligation to investigate persists until the person deprived of liberty or his or her remains have been found. In the case of presumption of death due to forced disappearance, the burden of proof falls upon the State, as it is the State that had the alleged control over the detained person and their fate.
28. According to the jurisprudence constante of the inter-American system, “[t]he right to life is a fundamental human right, and the exercise of this right is essential for the exercise of all other human rights. If it is not respected, all rights lack meaning.” The right to life is one of the rights that form part of the non-derogable core established in Article 27(2) of the American Convention; these are rights that cannot be suspended in case of war, public danger or other threats to the independence or security of the States Parties.
29. The legitimate use of force by State law enforcement officials must be limited by the principles of exceptionality, necessity, proportionality and humanity. Furthermore, domestic law must establish clear guidelines regulating the use of force, and the State must train its law enforcement officials on the protection of human rights and the limits to which the use of weapons must be subject. Finally, procedures must be in place to determine whether the lethal force used by agents of the State was legal.
30. In cases involving a pattern of extrajudicial executions tolerated and promoted by the State, the Inter-American Court has deemed that the State is responsible for having created a climate incompatible with the effective protection of the right to life. In this sense, “the States must take all necessary measures not only to prevent and punish deprivation of life as a consequence of criminal acts, but also to prevent arbitrary executions by its own security forces.” Murders committed within the context of a generalized or systematic attack against the civil population constitute crimes against humanity.
32. The principles that can be used to determine whether the investigation of a presumed extrajudicial execution was properly done, are those contained in the United Nations Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (Protocol of Minnesota). Based on that manual, the Inter-American Court has singled out the principles that such inquiries must observe. The State authorities that conduct the investigation must: a) identify the victim; b) collect and preserve evidence related to the death in order to assist with any investigation; c) identify possible witnesses and obtain testimonies in relation to the death under investigation; d) determine the cause, manner, place and time of death, as well as any pattern or practice which may have brought about such death, and e) distinguish between natural death, accidental death, suicide and homicide.
35. An act constitutes torture when the mistreatment is: a) an intentional act; b) causes severe physical or mental suffering, and c) is committed with a given purpose or aim. The obligation to guarantee the right recognized in the American Convention not to be subjected to torture or cruel, inhuman or degrading treatment or punishment entails the State’s obligation to investigate possible acts or torture of other cruel, inhuman or degrading treatment.
36. Even when the use of torture or cruel, inhuman or degrading treatment has not been reported to the competent authorities, whenever there is well-grounded reason to believe that an act of torture has been committed the State has the obligation to commence, on its own motion, an effective, impartial, independent and detailed investigation to determine the nature and origin of any injuries noted, identify the responsible parties and begin their prosecution. The State must consider that out of fear the victim may have refrained from reporting what happened. The judicial authorities have the duty to guarantee the rights of the person detained, which entails obtaining and ensuring the authenticity of any evidence that can prove acts of torture.
37. Finally, in order to determine whether an investigation into alleged acts of torture is effective, the State may use the United Nations Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, contained in the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol).
38. As a State Party to the American Convention, the Republic of Haiti has an international obligation to investigate and, where necessary, punish those responsible for the gross human rights violations committed during the regime of Jean-Claude Duvalier. The Constitution of Haiti provides that the American Convention is part of Haitian domestic law and abrogates any and all laws that are contrary to the American Convention.
39. According to the documentation available, the government of Jean-Claude Duvalier was characterized by systematic violations of human rights such as extrajudicial executions, forced disappearances and torture. Under international law, such acts constitute crimes against humanity. The prohibition of such crimes, the fact that they are not subject to any statutory limitations, the obligation to investigate and punish them, and the absolute prohibition of torture, are now part of the jus cogens. In other words, these are imperative norms that States cannot fail to comply with. Accordingly, amnesty for such crimes is prohibited and the State must remove all obstacles that stand in the way of its compliance with its international obligation.
40. Haiti now has a unique opportunity. The investigation and punishment of these crimes could become a fundamental step in strengthening the rule of law and restoring confidence in the Haitian justice system, and an example of good faith compliance with international commitments. The Inter-American Commission is aware of the significant challenges faced by the Haitian judiciary considering the unprecedented magnitude of these crimes, the fact that they happened three decades ago, and the overall weakness of the judicial system, particularly in the difficult context of a reconstruction process.
41. Taking these difficulties into account, the Commission once again compliments the Haitian State for the judicial investigations it has either opened or reopened following the return of Jean-Claude Duvalier to Haiti, and for its public acknowledgment to the effect that these investigations are a priority for the State. The IACHR urges the Republic of Haiti to use every means available to continue to investigate the serious violations of human rights that were committed in the period from 1971 to 1986, to prosecute and punish those responsible and to make reparations to the victims.
42. The Inter-American Commission is aware of the dilemma that the Haitian State is facing and recognizes that the international community’s support and commitment are essential if Haiti is to be able to successfully prosecute and punish those responsible for these crimes. Accordingly, the IACHR urges the international community to offer full assistance to Haiti at this historical juncture for the Haitian justice system.
Washington DC, May 17, 2011.
 IACHR, Report on the Situation of Human Rights in Haiti, December 13, 1979 (OEA/Ser.L/V/II.46).
 IACHR, Press release No. 3/11, January 19, 2011.
 Article 276(2) of the Constitution of the Republic of Haiti provides that: “Once international treaties or agreements are approved and ratified in the manner stipulated by the Constitution, they become part of the legislation of the country and abrogate any laws in conflict with them” (the Executive Secretariat’s translation).
 I/A Court H.R.. Case of Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 26, 2006. Series C No. 154, para. 124.
 I/A Court H.R.. Case of Velásquez Rodríguez. Merits, para. 184; and Case of Godínez Cruz v. Honduras. Merits. Judgment of January 20, 1989. Series C No. 5, para. 194.
 Case of Yvon Neptune v. Haiti. Merits, Reparations and Costs. Judgment of May 6, 2008. Series C No. 180, para. 40.
 Case of Yvon Neptune v. Haiti. Merits, Reparations and Costs. Judgment of May 6, 2008. Series C No. 180, para. 41.
 I/A Court H.R.. Case of the Moiwana Community v. Suriname. Preliminary Objections, Merits, Reparations and Costs. Judgment of June 15, 2005. Series C No. 124, para. 146.
 For more information on the nature of crimes against humanity, see International Center for Transititional Justice, “Technical opinion on the nature of crimes against humanity and the applicability of prohibition of amnesties,” New York, September 2008. Available [in Spanish] at: http://www.ictjcolombia.org/docs/ICTJ-Brasil_Parecer-tecnico-amnisitias_19SEP08_final.pdf.
 I/A Court H.R.. Case of Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 26, 2006. Series C No. 154, para. 96.
 I/A Court H.R.. Case of Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits, Reparations and Costs. Judgment of 26 de sepetiembre de 2006. Series C No. 154, para. 105 y 152.
 I/A Court H.R.. Case of Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 26, 2006. Series C No. 154, para. 153.
 I/A Court H.R.. Case of Barrios Altos v. Peru. Merits. Judgment of March 14, 2001. Series C No. 75, para. 41.
 I/A Court H.R.. Case of La Cantuta v. Peru. Merits, Reparations and Costs. Judgment of November 29, 2006. Series C No. 162, para. 157.
 See I/A Court H.R.. Case of La Cantuta v. Peru. Merits, Reparations and Costs. Judgment of November 29, 2006. Series C No. 162, para. 225.
 I/A Court H.R.. Case of La Cantuta v. Peru. Merits, Reparations and Costs. Judgment of November 29, 2006. Series C No. 162, para. 226.
 Both amnesties and the so-called “self-amnesties” for serious human rights violations are incompatible with the American Convention (Case of Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 24, 2010. Series C No. 219, para. 175).
 See IACHR, Annual Report 1985-1986, Chapter V, OEA/Ser.L/V/II.68, Doc. 8 rev. 1, page 205.
 IACHR, Report 26/92, Case 10,287, Las Hojas Massacre, El Salvador, September 24,1992; IACHR, Report 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311, Argentina, October 2, 1992; and IACHR, Report 29/92, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373 and 10.375, Uruguay, October 2, 1992.
 I/A Court H.R.. Case of Barrios Altos v. Peru. Merits. Judgment of March 14, 2001. Series C No. 75, paragraphs 43 and 44.
 I/A Court H.R.. Case of Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 26, 2006. Series C No. 154, paragraphs 108 and 111.
 I/A Court H.R.. Case of Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 26, 2006. Series C No. 154, para. 110.
 Case of Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 24, 2010. Series C No. 219, paragraphs 161-164 (available in Portuguese and Spanish only); and I/A Court H.R.. Case of Gelman v. Uruguay. Merits and Reparations. Judgment of February 24, 2011 Series C No. 221, paragraphs 195-224 (available in Spanish ontly).
 I/A Court H.R.. Case of Gelman v. Uruguay. Merits y Reparations. Judgment of February 24, 2011 Series C No. 221, para. 239.
 I/A Court H.R.. Case of Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 26, 2006. Series C No. 154, para. 123.
 I/A Court H.R.. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 155.
 I/A Court H.R.. Case of Anzualdo Castro v. Peru. Preliminary Objection, Merits, Reparations and Costs. Judgment of September 22, 2009. Series C No. 202, para. 101.
 I/A Court H.R.. Case of Gómez Palomino v. Peru. Merits, Reparations and Costs. Judgment of November 22, 2005. Series C No. 136, para. 97; and I/A Court H.R.. Case of Radilla Pacheco v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 23, 2009. Series C No. 209, para. 139.
 I/A Court H.R.. Case of Radilla Pacheco v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 23, 2009. Series C No. 209, para. 145.
 I/A Court H.R.. Case of Goiburú et al. v. Paraguay. Merits, Reparations and Costs. Judgment of September 22, 2006. Series C No. 153, para. 84.
 I/A Court H.R.. Case of Goiburú et al. v. Paraguay. Merits, Reparations and Costs. Judgment of September 22, 2006. Series C No. 153, para. 88.
 I/A Court H.R.. Case of La Cantuta v. Peru. Merits, Reparations and Costs. Judgment of November 29, 2006. Series C No. 162, para. 115.
 I/A Court H.R.. Case of Radilla Pacheco v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 23, 2009. Series C No. 209, para. 143.
 I/A Court H.R.. Case of Radilla Pacheco v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 23, 2009. Series C No. 209, para. 47.
 I/A Court H.R.. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits. Judgment of November 19, 1999. Series C No. 63, para. 144.
 I/A Court H.R.. Case of the Pueblo Bello Massacre v. Colombia.. Merits, Reparations and Costs. Judgment of January 31, 2006. Series C No. 140, para. 119.
 I/A Court H.R.. Case of Zambrano Vélez et al. V. Ecuador. Merits, Reparations and Costs. Judgment of July 4, 2007. Series C No. 166, paragraphs. 82-90.
 I/A Court H.R.. Case of Juan Humberto Sánchez v. Honduras. Preliminary Objection, Merits, Reparations and Costs. Judgment of June 7, 2003. Series C No. 99, para. 110.
 I/A Court H.R.. Case of Baldeón García v. Peru. Merits, Reparations and Costs. Judgment of April 6, 2006. Series C No. 147, para. 94.
 I/A Court H.R.. Case of Manuel Cepeda Vargas v. Colombia. Preliminary Objections, Merits, Reparations and Costs. Judgment of May 26, 2010. Series C No. 213, para. 119.
 I/A Court H.R.. Case of Baldeón García v. Peru. Merits, Reparations and Costs. Judgment of April 6, 2006. Series C No. 147, para. 96.
 I/A Court H.R.. Case of Juan Humberto Sánchez v. Honduras. Preliminary Objection, Merits, Reparations and Costs. Judgment of June 7, 2003. Series C No. 99, para. 111.
 I/A Court H.R.. Case of Bueno Alves v. Argentina. Merits, Reparations and Costs. Judgment of May 11, 2007. Series C No. 164, para. 76.
 I/A Court H.R.. Case of Maritza Urrutia v. Guatemala. Merits, Reparations and Costs. Judgment of November 27, 2003. Series C No. 103, para. 89.
 I/A Court H.R.. Case of Bueno Alves v. Argentina. Merits, Reparations and Costs. Judgment of May 11, 2007. Series C No. 164, para. 79.
 I/A Court H.R.. Case of Bayarri v. Argentina. Preliminary Objection, Merits, Reparations and Costs. Judgment of October 30, 2008. Series C No. 187, para. 88.
 I/A Court H.R.. Case of Gutiérrez Soler v. Colombia. Merits, Reparations and Costs. Judgment of September 12, 2005. Series C No. 132, para. 54.
 I/A Court H.R.. Case of Bayarri v. Argentina. Preliminary Objection, Merits, Reparations and Costs. Judgment of October 30, 2008. Series C No. 187, para. 92.

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


text:
On March 6, 2019, Facebook CEO Mark Zuckerberg announced via an interview and a Facebook blog post a planned shift to “building a privacy-focused messaging and social networking platform.” Characterizing this shift as a “privacy-focused vision,” Zuckerberg said that this change in focus meant that Facebook and Instagram would not only function as “the digital equivalent of a town square” but also “the digital equivalent of the living room.” This shift was billed in part as a response to user demand: according to the post, the “fastest growing areas of online communication” were private messaging, “ephemeral stories,” and small group communication.
The blog post acknowledged Facebook’s reputation for not building “privacy protective services.” In 2011, Facebook entered into a consent decree with the Federal Trade Commission (FTC) related to its privacy practices and has continued to face criticism for its privacy and data protection practices. Indeed, just a few days prior to the announcement, news reports circulated regarding the ability to look up individuals on Facebook based on their telephone numbers, despite Facebook’s statements to users when they provided their telephone numbers that the number would be used for two-factor authentication. Reports last year led to Facebook’s confirmation that the telephone numbers are also used for advertising.
Some legislators and regulators have expressed concerns about information sharing between Facebook’s services. Last month, the German antitrust regulator issued a decision restricting Facebook from sharing information between services in the absence of users’ voluntary consent. Facebook announced that it planned to appeal the decision.
Automobile Loan Servicing. The CFPB has recently conducted examinations of captive automotive finance companies for unfair and deceptive acts and practices (UDAAPs) involving rebates for extended automobile warranties. Typically, when a lessee purchases an extended warranty for a leased car and the car is a total loss, the lessee is entitled to a pro-rated rebate of the premium amount for the un-used portion of the warranty; the rebate is applied first to any deficiency balance on the lease, and the balance is returned to the lessee. The CFPB found that some automotive finance companies had engaged in UDAAPs by (1) failing to apply the rebate to the deficiency balance or artificially deflating the value of the rebate (for instance, by overstating the number of miles on the car) and then (2) attempting to collect on the inflated deficiency balance.
Bank Debiting Practices. The CFPB found that some banks had inaccurately represented that debits made through an online bill-pay service would occur on a given date, even though they might occur earlier than the stated date (for instance, if a payee only accepted a paper check). In some instances, this caused consumers to suffer overdraft fees because there was insufficient money to cover the debit on the earlier date.
Mortgage Servicing. The CFPB found that some mortgage servicers had unlawfully charged consumers fees that were not authorized by their mortgage loans, failed to cancel private mortgage insurance when the loan-to-value ratio dipped below 80%, failing to exercise “reasonable diligence” in processing loss mitigation applications, and failed to provide necessary documentation to the successors-in-interest to borrowers who obtained a home equity conversion mortgage (a type of HUD-insured reverse mortgage).
The CFPB also noted that it had brought five public enforcement actions against payday lenders and other financial institutions relating to a variety of unlawful practices, including debiting consumers’ bank accounts without authorization, furnishing inaccurate information to credit reporting agencies, failing to make required disclosures to consumers, and improperly threatening to initiate debt collection actions.
On February 12, the Conference of State Bank Supervisors (CSBS) released its Fintech Industry Advisory Panel Recommendations. CSBS is a national organization of financial regulators from around the United States, Guam, Puerto Rico, American Samoa, and the US Virgin Islands. The recommendations are designed to improve the use of regulatory technology and harmonize regulatory standards throughout the United States. The recommendations include a plan to develop a model state law for MSBs and to standardize licensing requirements. The panel also recommended a pilot program for building a uniform state licensing examination. Overall, the recommendations seek to create uniformity in state FinTech licensing and regulation. To aid in the harmonizing process, the panel recommends creating repositories of the different state laws and licensing requirements so that financial companies can access all necessary regulations at once. CSBS includes these recommendations as part of a broader effort to streamline state FinTech regulation called Vision 2020. Read the full list of recommendations here.
In a recent Corporate Counsel article, Jenner & Block Partner Jeffrey A. Atteberry examines the current federal privacy legislative proposals and the impact potential data privacy and cybersecurity legislation could have on businesses. Mr. Atteberry explains that several recent high-profile data breaches and questions about how social media platforms share consumers’ personal data are contributing to increasing demand for passage of federal data privacy legislation. He explains that the bills and proposals that have circulated in the last year are the best indicator of what lies ahead in terms of any potential federal privacy regime. To help corporate counsel anticipate changes that may arise, Mr. Atteberry breaks down the current congressional proposals and provides key takeaways for in-house counsel.
To read Law360’s profile, please click here.
In an article published by the Daily Journal, Jenner & Block Partner Jeffrey A. Atteberry discusses the recent public forum that was hosted by the California attorney general’s office regarding the California Consumer Privacy Act of 2018 (CCPA). The forum was held in order to seek public comment on the CCPA as the attorney general moves forward with the initial phase of the rulemaking process. Mr. Atteberry summarizes the concerns that businesses expressed at the forum, including a request to clarify the scope and meaning of the word “sell” as it relates to the sale of personal information, the need for guidance relating to the calculation of the revenue threshold in the CCPA, and the data security risks associated with the CCPA’s verification requirements, among others.
Last week, New York Governor Andrew Cuomo announced the Consumer Right to Know Act (“Act”) as part of his proposed executive budget. The Act would authorize the New York Department of Environmental Conservation, along with the New York Department of Health and the New York Department of State, to promulgate regulations requiring product manufacturers to disclose the presence of potentially hazardous substances on their product labeling. Among other things, the Act would require these agencies to assess the feasibility of on-package labeling; develop regulations establishing a labeling requirement for designated products; develop a list of more than 1,000 substances that must be labeled; and identify the types of consumer products that will be subject to these new labeling requirements. The Act would also extend the Department of Environmental Conservation’s disclosure requirements for household cleaning products to encompass all cleaning products sold in New York, and it would empower the Department of Health to require similar disclosures for personal care products like shampoo, deodorant, or baby powder. Needless to say, these disclosure requirements would be among the most stringent—if not the most stringent—in the United States.
Governor Cuomo’s announcement is available here. We will keep our readers updated on the progress of Governor Cuomo’s proposal.
2018 was another busy year for the Consumer Law Round-Up. Launched by the firm’s Consumer Law Practice, the blog updates readers on key developments within consumer law and provides insights that are relevant to companies and individuals that may be affected by the ever-increasing patchwork of federal and state consumer protection statutes. In 2018, the Consumer Law Round-Up featured posts by approximately 20 different authors on a wide array of topics.
Below is a list of the Top 10 most popular posts of 2018.
Several recent “first of kind” enforcement proceedings continue the flurry of enforcement activity by regulators. In two settled proceedings, the Securities and Exchange Commission (SEC) brought two cases for failure to register digital tokens as securities in connection with initial coin offerings (ICOs), without allegations of fraud. With such enforcement actions now commonplace, a “crypto winter” has clearly set in. In another development, a federal court recently issued the first opinion concluding that the SEC had failed to establish that a digital asset issued in connection with an ICO was a “security” under the federal securities laws, underscoring that digital assets will not be subject to a one-size-fits-all analysis.
As for the two settled charges, according to the SEC’s orders, Paragon Coin, Inc. and AirFox launched their ICOs in 2017. Paragon is an online company that was established to implement blockchain technology in the cannabis industry, as well as to work towards legalization of cannabis. Through its ICO, Paragon raised approximately $12 million in digital assets to develop and expand its business. As for AirFox, it sells mobile technology intended to allow customers to earn free or discounted data by watching advertisements on their phones. AirFox raised approximately $15 million in its ICO to help expand its business overseas. Neither Paragon nor AirFox registered their ICOs.
In charging the two companies with registration violations, the SEC’s legal analysis in both cases was very similar (in some places identical). As an initial matter, the orders pointed out that the ICOs occurred after the SEC issued the DAO Report, which said that digital assets may qualify as “securities” under the securities law, and thus may require registration. The clear message from the SEC is that the companies should have been on notice. Moreover, applying the Supreme Court’s Howey test, the SEC determined that the digital tokens at issue were securities because (1) the tokens were offered in general solicitations to US investors, (2) purchasers had a reasonable expectation of profits from their investment, (3) the investors’ profits would be driven by the managerial efforts of others (i.e., Paragon and AirFox), and (4) investors’ expectations were primed by Paragon and AirFox through marketing and promotional materials that touted the ICOs.
To settle the charges, Paragon and Airfox each agreed to pay a $250,000 civil money penalty, register their tokens as securities with the SEC, and reimburse investors who purchased tokens in the offerings.
These two cases are important for a variety of reasons. For one thing, unlike many previous crypto-enforcements, they did not involve any allegations of fraud or misrepresentation. Instead, they were pure failure-to-register cases. Moreover, for companies that have not yet launched an ICO, the SEC’s press release warned that “[t]hese cases tell those who are considering taking similar actions that [the SEC] continue[s] to be on the lookout for violations of the federal securities laws with respect to digital assets.” In other words, future ICO issuers should carefully consider whether their tokens are “securities” under the Howey factors and, if so, make sure they are complying with all the attendant securities laws, including registration requirements. Finally, although we expect the SEC to bring similar actions in the near future against issuers who have already raised capital through ICOs, the SEC’s press release explains that these cases contain a forward-looking compliance roadmap of sorts: “By providing investors who purchased securities in these ICOs with the opportunity to be reimbursed and having the issuers register their tokens with the SEC, these orders provide a model for companies that have issued tokens in ICOs and seek to comply with the federal securities laws.” Thus, issuers should consider taking proactive steps—including registering their tokens and reimbursing their investors—to minimize the likelihood or extent of an enforcement proceeding.
Although the SEC obtained favorable settlements against Paragon and AirFox, the SEC recently suffered a setback in its case against a company called Blockvest. According to the SEC, Blockvest materially misled investors by falsely claiming that its ICO had been registered with a “fictitious regulatory agency” similar to the SEC to “create legitimacy and an impression that [its] investment is safe.” After the SEC filed a federal complaint and a motion for preliminary injunction, the court considered whether the digital asset at issue was a security under the Howey test. The Southern District of California ultimately denied the SEC’s motion for a preliminary injunction because there were “disputed issues of fact” as to what the “investors relied on, in terms of promotional materials, information, economic inducements or oral representations . . . before they purchased” the tokens.
Although the Blockvest ruling shows that courts will not rubberstamp SEC arguments in the cryptocurrency context, the value of this opinion is limited because the court did not reject the SEC’s arguments on the merits; rather, it held that the case should proceed to full discovery in light of the material facts in dispute. And, just two months earlier, in September 2018 Judge Raymond Dearie of the Eastern District of New York denied a motion to dismiss the criminal prosecution of Maksim Zaslavskiy, who was charged with allegedly defrauding investors by falsely representing that two cryptocurrencies (REcoin and Diamond) were backed by real estate and diamonds, respectively. Judge Dearie ruled that the prosecution of Zaslavskiy could continue.
In all, at this time last year, the value of Bitcoin was seeing record highs of nearly $20,000 while enforcement activity remained relatively low and courts had not yet seriously begun to grapple with how to categorize digital assets. In the ensuing months, numerous regulators have gotten into the act, with SEC and others bringing enforcement actions to halt fraudulent schemes, and more recently, to push back on projects that failed to register with the SEC. Courts have also begun to put contours around the Howey analysis. With all those developments, the price of Bitcoin is hovering in the $4,000 range, leading commentators to claim a crypto winter. As we head into 2019, time will tell whether the increased clarity from enforcement authorities resulting from a year of enforcement activity will lead to a springtime thaw.
 U.S. Securities and Exchange Comm’n, In the Matter of Paragon Coin, Inc., Order Instituting Cease-and-Desits Proceedings Pursuant to Section 8A of the Securities Act of 1933, Making Findings, and Imposing Penalties and a Cease-and-Desist Order, Release No. 10574, Nov. 16, 2018, https://www.sec.gov/litigation/admin/2018/33-10574.pdf.
 U.S. Securities and Exchange Comm’n, In the Matter of CarrierEQ, Inc., d/b/a/ Airfox, Order Insituting Cease-and-Desist Proceedings Pursuant to Section 8A of the Securities Act of 1933, Making Findings, and Imposing Penalties and a Cease-and-Desist Order, Release No. 10575, Nov. 16, 2018, https://www.sec.gov/litigation/admin/2018/33-10575.pdf.
 U.S. Securities and Exchange Comm’n, Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: The DAO, Release No. 81207, July 25, 2017, https://www.sec.gov/litigation/investreport/34-81207.pdf.
 U.S. Securities and Exchange Comm’n, Press Release, “Two ICO Issuers Settle SEC Registration Charges, Agree to Register Tokens as Securities,” https://www.sec.gov/news/press-release/2018-264.
 Securities and Exchange Comm’n v. Blockvest, LLC and Reginald Buddy Ringgold, III a/k/a Rasool Abdul Rahim El, Case No.: 18CV2287-GPB(BLM), Order Denying Plaintiff’s Motion for Preliminary Injunction (S.D. Cal. Nov. 27, 2018).
 U.S. v. Zaslavskiy, Memorandum & Order, 1:17-cr-00647 (E.D.N.Y. Sept. 11, 2018).
Vexingly, Defendants do not address the NYAG’s independent authority to bring claims in federal district court under the CFPA, without regard to the constitutionality of the CFPB’s structure. . . . The Government has alleged adequately claims for deceptive and abusive acts or practices under the CFPA, and therefore federal question subject matter jurisdiction over the CFPA claims exists regardless of the constitutionality of the CFPB’s structure.
Amending its June 21 Order, the Court clarified that because “the appropriate remedy for Title X’s unconstitutional for-cause removal provision is invalidating Title X in its entirety, it follows that there is no statute for the NYAG to proceed under and no grant of authority to proceed.” Accordingly, the Court dismissed the NYAG’s federal law claims.
The Court also dismissed the NYAG’s state law claims. The NYAG argued that the Court should hear the remaining state law claims on the basis of federal question jurisdiction because the claims implicate the question of whether the purported assignments of VCF payouts violate the federal Anti-Assignment Act, but the Court rejected this argument, finding that the question does not “implicate broad consequences to the federal system or the nation as a whole” and can be competently addressed by state courts. Additionally, citing “judicial economy, convenience, fairness, and comity[,]” the Court rejected the NYAG’s argument that the Court should use its discretion to exercise supplemental jurisdiction over the remaining state law claims.
The debate over the constitutionality of the CFPB is certainly not over. In fact, given that the CFPB filed a Notice of Appeal on September 14, the issue of the CFPB’s constitutionality is now on appeal before several circuit courts. The NYAG could also appeal Judge Preska’s ruling, and/or it may attempt to pursue its CFPA and state law claims against the RD Entities in state court, likely depending at least in part on its assessment of the probability a state court would stay the case pending the CFPB’s appeal.
 The NYAG and the CFPB also allege that the founder and owner of the RD Entities, Roni Dersovitz, is liable for providing substantial assistance to the RD Entities in carrying out the violations. Consumer Fin. Prot. Bureau v. RD Legal Funding, LLC, No. 17-CV-890 (LAP), 2018 WL 3094916, at *4 (S.D.N.Y. June 21, 2018), appeal docketed, No. 18-2743 (2d Cir. Sept. 17, 2018).
 Order at 6-7, Consumer Fin. Prot. Bureau v. RD Legal Funding, LLC, No. 17-CV-890 (LAP) (S.D.N.Y. Sept. 12, 2018), Doc. No. 105, appeal docketed, No. 18-2743 (2d Cir. Sept. 17, 2018); see RD Legal Funding, LLC, 2018 WL 3094916, at *2.
 RD Legal Funding, LLC, 2018 WL 3094916, at *2.
 Id. at *36 (“Because Plaintiff Consumer Financial Protection Bureau is unconstitutionally structured and lacks authority to bring claims under the CFPA, the Clerk of Court shall terminate Plaintiff Consumer Financial Protection Bureau as a party to this action.”).
 Order at 1, RD Legal Funding, LLC, No. 17-CV-890 (LAP) (S.D.N.Y. Sept. 12, 2018), Doc. No. 105.
 Notice of Appeal, RD Legal Funding, LLC, No. 17-CV-890 (LAP) (S.D.N.Y. Sept. 14, 2018), Doc. No. 108. The RD Entities filed a Notice of Cross-Appeal on September 25. Notice of Cross-Appeal, RD Legal Funding, LLC, No. 17-CV-890 (LAP) (S.D.N.Y. Sept. 25, 2018), Doc. No. 111.
 See, e.g., Order, Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., No. 16-CV-356 (S.D. Miss. Mar. 27, 2018), Doc. No. 236, interlocutory appeal docketed, No. 18-60302 (5th Cir. Apr. 24, 2018); Consumer Fin. Prot. Bureau v. Seila Law, LLC, No. 17-CV-01081-JLS-JEM, 2017 WL 6536586 (C.D. Cal. Aug. 25, 2017), appeal docketed, No. 17-56324 (9th Cir. Sept. 1, 2017); Consumer Fin. Prot. Bureau v. Future Income Payments, LLC, 252 F.Supp.3d 961 (C.D. Cal. 2017), appeal docketed, No. 17-55721 (9th Cir. May 19, 2017); Consumer Fin. Prot. Bureau v. D & D Mktg., Inc., No. CV 15-9692 PSG (EX), 2016 WL 8849698 (C.D. Cal. Nov. 17, 2016), interlocutory appeal docketed, No. 17-55709 (9th Cir. May 18, 2017); CFPB v. CashCall, Inc., No. CV-15-7522-JFW-RAOx, 2016 WL 4820635 (C.D. Cal. Aug. 31, 2016), appeal docketed, No. 18-55479 (9th Cir. Apr. 12, 2018); cf. Order, State Nat. Bank of Big Spring v. Lew, No. 12-1032 (ESH) (D.D.C. Feb. 16, 2018), Doc. No. 78, aff’d sub nom. Order, State National Bank of Big Spring v. Mnuchin, No. 18-5062 (D.C. Cir. June 8, 2018), Doc. No. 1734973, cert. filed (Sept. 6, 2018).
We will update the blog with updates on the outcome of these cases, as well as more information on additional class action or consumer law cases the Court adds to its docket.
September saw a flurry of activity that will help further define the cryptocurrency regulatory landscape. The Financial Industry Regulatory Authority (“FINRA”) brought its first-ever crypto-fraud case and a court ruling by the U.S. District Court for the Eastern District of New York gave backing to the view that digital assets will be viewed as securities. And, in two enforcements actions, the U.S. Securities and Exchange Commission (“SEC”) branched out beyond actions against fraudulent crypto-schemes and went after crypto companies for failing to register with the SEC. The latter two cases signal that the SEC is committed to enforcing applicable securities law requirements beyond those accused of fraud, and therefore SEC enforcement activity remains an area for legitimate businesses to watch.
Last October, the U.S. Attorney’s Office in Brooklyn brought charges against Maksim Zaslavskiy alleging that Zaslavskiy made false representations in connection with two cryptocurrencies and their related initial coin offerings (“ICOs”) in violation of U.S. securities law. According to the indictment, Zaslavskiy induced investors to purchase tokens in an ICO for “REcoin” by falsely claiming that REcoin was backed by real estate investments. Similarly, the government alleged, Zaslavskiy falsely claimed that a second cryptocurrency, “Diamond,” was backed by actual diamonds when it was not.
Zaslavskiy moved to dismiss the indictment arguing that the REcoin and Diamond offerings did not involve securities under the Supreme Court’s Howey test. In a seminal ruling on the issue, the court rejected Zaslavskiy’s argument and found that a reasonable jury could conclude that the cryptocurrency transactions were “investment contracts.” Applying the federal securities laws “flexibly,” the court held that a reasonable jury could conclude that: (1) defrauded individuals invested money (2) in a common enterprise and (3) were led to expect that profits from the REcoin and Diamond enterprise would be derived solely from the managerial efforts of Zaslavaskiy. The decision was consistent with recent remarks by William Hinman, the SEC’s Director of the Division of Corporate Finance, with regard to determining whether digital assets are securities.
On September 11, 2018, FINRA filed an action against Timothy Tilton Ayre in its “first disciplinary action involving cryptocurrencies.” In its complaint, FINRA alleged that Ayre purchased the rights to a cryptocurrency called HempCoin and repackaged it into a security backed by the stock of Rocky Mountain Ayre, a worthless company Ayre owned. Ayre then marketed HempCoin as “the world’s first currency to represent equity ownership” in a publicly-traded company. FINRA alleges that Ayre defrauded investors by making false statements about Rocky Mountain’s business and failing to register HempCoin as a security.
This month also witnessed the expansion of the types of enforcement actions by the SEC, with two actions against crypto companies for failing to register. In one case—In re TokenLot—the SEC brought its first case charging that a company selling digital tokens was an unregistered broker-dealer. According to the SEC’s settlement order, TokenLot, which was a self-described “ICO Superstore,” was promoted as a way to purchase digital tokens during ICOs and also to engage in secondary trading. By soliciting investors and facilitating the sales of digital tokens, TokenLot and its two founders were required to register with the SEC as broker-dealers, but they failed to do so.
In the other case—In re Crypto Asset Management—the SEC brought an enforcement action claiming that a hedge fund manager that invested in digital assets failed to register as an investment company. According to the SEC’s order, the fund raised $3.6 million by marketing itself as the “first regulated crypto asset fund in the United States.” But it had failed to file a registration statement and therefore was operating as an unregistered investment company.
These cases further cement the view that regulators, and now courts, will continue to treat certain digital assets as securities, with all the attendant securities law requirements. As the SEC actions show, that will mean more than just enforcement actions against those using the new technology to defraud the unwitting. It will also mean that other players in the space—such as those acting as brokers and asset managers—will need to take steps to assure themselves that they are abiding by relevant securities law provisions, lest they invite an enforcement action.

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


text:
Petitioners, parents of District of Columbia (D.C.) school children, brought this action seeking damages and declaratory and injunctive relief for invasion of privacy that they claimed resulted from the dissemination of a congressional report on the D.C. school system that included identification of students in derogatory contexts. The named defendants included members of a House committee, Committee employees, a Committee investigator, and a consultant; the Public Printer and the Superintendent of Documents; and officials and employees connected with the school system. The Court of Appeals affirmed the District Court's dismissal of the complaint on the grounds that the first two categories of defendants were immune by reason of the Speech or Debate Clause, and that the D.C. officials and the legislative employees were protected by the official immunity doctrine recognized in Barr v. Matteo, 360 U.S. 564.
1. The congressional committee members, members of their staff, the consultant, and the investigator are absolutely immune under the Speech or Debate Clause insofar as they engaged in the legislative acts of compiling the report, referring it to the House, or voting for its publication. Pp. 311-313.
2. The Clause does not afford absolute immunity from private suit to persons who, with authorization from Congress, perform the function, which is not part of the legislative process, of publicly distributing materials that allegedly infringe upon the rights of individuals. The Court of Appeals, therefore, erred in holding that respondents who (except for the Committee members [93 S.Ct. 2022] and personnel) were charged with such public distribution were protected by the Clause. Pp. 313-318.
3. The Public Printer and the Superintendent of Documents are protected by the doctrine of official immunity enunciated in Barr v. Matteo, supra, for publishing and distributing the report only to the extent that they served legitimate legislative functions in doing so, and the Court of Appeals erred in holding that their immunity extended beyond that limit. Pp. 318-324.
WHITE, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, MARSHALL, and POWELL, JJ., joined. DOUGLAS, J., filed a concurring opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 325. BURGER, C.J., filed an opinion concurring in part and dissenting in part, post, p. 331. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which BURGER, C.J., joined, post, p. 332. REHNQUIST, J., filed an opinion concurring in part and dissenting in part, in which BURGER, C.J., and BLACKMUN, J., joined, and in Part I of which STEWART, J., joined, post, p. 338.
This case concerns the scope of congressional immunity under the Speech or Debate Clause of the United States Constitution, Art. I, § 6, cl. 1, as well as the reach of official immunity in the legislative context. See Barr v. Matteo, 360 U.S. 564 (1959); Tenney v. Brandhove, 341 U.S. 367 (1951).
The District Court, after a hearing on motions for a temporary restraining order and for an order against further distribution of the report, dismissed the action against the individual defendants on the ground that the conduct complained of was absolutely privileged.4 A divided panel of the United States Court of Appeals for the District of Columbia Circuit affirmed. Without determining whether the complaint stated a cause of action under the Constitution or any applicable law, the majority held that the Members of Congress, the Committee staff employees, and the Public Printer and Superintendent of Documents were immune from the liability asserted against them because of the Speech or Debate Clause and that the official immunity doctrine recognized in Barr v. Matteo, supra, barred any liability on the part of the District of Columbia officials as well as the legislative employees.5 We granted certiorari, 408 U.S. 922.
To "prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary," Gravel v. United States, 408 U.S. 606, 617 (1972), Art. I, § 6, cl. 1, of the Constitution provides that "for any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other Place."
The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process.

matches:
v.
v.
§ 6
v.
v.
v.
v.
§ 6