Michael P. Kennedy, Assistant United States Attorney (Paul M. Warner, United States Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff-Appellant.
Stephen R. McCaughey, Salt Lake City, Utah, for Defendant-Appellee Jose de Jesus Santana-Garcia.
G. Fred Metos, Salt Lake City, Utah, for Defendant-Appellee Gonzalo Alonso Ruiz-Tovar.
Before BALDOCK, McWILLIAMS, and ANDERSON, Circuit Judges.
At approximately 7:02 a.m. on August 13, 1999, Utah State Trooper Korey Wright observed a silver Ford Crown Victoria with Oregon license plates coast through a stop sign at the milepost 222 northbound exit of I-15 in Juab County, Utah. Trooper Wright activated his lights. The vehicle pulled into a Texaco Tri-Mart near the exit and stopped. Trooper Wright informed the driver of the vehicle, Defendant Ruiz-Tovar, the reason for the stop and requested his license. Defendant Ruiz-Tovar indicated he did not speak English. The vehicle's passenger, Defendant Santana-Garcia, spoke limited English and informed Trooper Wright that Defendant Ruiz-Tovar did not have a driver's license. Defendant Ruiz-Tovar produced a Mexican voter card for identification. Meanwhile, Defendant Santana-Garcia handed Trooper Wright an Oregon driver's license. During this exchange, Trooper Wright observed the presence of two air fresheners near the front passenger's side of the vehicle.
At approximately 7:05 a.m., Trooper Wright returned to his patrol car to request the assistance of Spanish-speaking Trooper Nathan Lindsey. He also requested a computer check on Defendant Santana-Garcia's driver's license and the vehicle's license plate. Dispatch reported that Defendant Santana-Garcia's driver's license was valid and that an Omar Garcia-Garcia was the registered owner of the vehicle. The vehicle was not listed as stolen and Defendants had no outstanding warrants against them.
While awaiting Trooper Lindsey's arrival, Trooper Wright returned to Defendants' vehicle around 7:07 a.m. Trooper Wright asked Defendants, who were standing outside the vehicle, about the vehicle's owner. Defendant Santana-Garcia explained that he had borrowed the vehicle from a "friend." Next, Trooper Wright inquired about Defendants' travel plans. At one point during the conversation, Defendant Santana-Garcia appeared to indicate they were traveling from Mexico to Colorado. This response prompted Trooper Wright to ask Defendants if they were "legal." Both Defendants stated they were not legal.(2) Trooper Wright next requested the vehicle's registration. Defendant Santana-Garcia handed Trooper Wright the registration, which listed Omar Garcia-Garcia as the vehicle's owner. Trooper Wright next asked for proof of insurance. Defendant Santana-Garcia indicated he knew nothing about the vehicle's insurance.
At approximately 7:16 a.m., Trooper Lindsey arrived on the scene. After briefly questioning Defendants about their travel plans,(3) Trooper Lindsey asked them if they had drugs in the vehicle. Both Defendants stated no. Trooper Lindsey then asked if he and Trooper Wright could look in the vehicle. The Defendants' agreed. On the passenger's side of the vehicle near an air freshener, Trooper Wright observed a partially open glove box. Behind the glove box, Trooper Wright located a duct-taped package which he believed contained drugs. The troopers placed both Defendants under arrest and read them their Miranda rights. Continuing the search, Trooper Wright located a second duct-taped package behind the dashboard's radio, also near an air freshener. The two packages tested positive for cocaine and methamphetamine respectively.
Following a suppression hearing at which Troopers Wright and Lindsey testified, the district court granted Defendants' motion to suppress in a thorough written order. The court first concluded Defendants had no standing to challenge the search of the vehicle because they did not establish they had lawful possession of the vehicle at the time of the search.(4) The district court, however, recognized that Defendants had standing to object to their detention. If Defendants' detention was illegal, as a general rule any evidence obtained as a result of their detention must be excluded as fruit of the poisonous tree. See United States v. Villa-Chaparro, 115 F.3d 797, 800 n.1 (10th Cir. 1997).
In determining the legality of Defendants' detention, the court relied solely on factors which Trooper Wright testified he considered to establish reasonable suspicion. These factors were (1) the vehicle's northbound travel on I-15 beyond the Colorado exit; (2) the vehicle's "lived-in" appearance; (3) the absence of visible luggage inside the vehicle's passenger compartment; (4) the presence of two air fresheners inside the vehicle; (5) the vehicle's third-party registration; and (6) Defendants' "closed" demeanor. Analyzing each of these factors, the district court concluded that Trooper Wright could not have formed the requisite reasonable suspicion of criminal activity to justify Defendants' continuing detention beyond the purpose for the initial stop. The court further concluded that Defendants' illegal detention tainted their subsequent consent to search the vehicle.
On appeal, the Government asserts that the district court erroneously failed to consider other factors which were known to Trooper Wright, but which he apparently did not rely on to detain Defendants. These factors include (1) Defendants' failure to provide proof of insurance; (2) Defendants' admission of their illegal immigration status; (3) Defendant Santana-Garcia's inability to provide the location of their destination in Colorado; and (4) Defendant Ruiz-Tovar's lack of a driver's license. According to the Government, all the factors within Trooper Wright's awareness considered in their entirety were adequate to justify Defendant's continuing detention.(5) Defendants counter with the proposition that in evaluating the reasonableness of a detention, the law does not permit a court to analyze factors which a law enforcement officer is aware of but does not expressly consider as a basis for detention.
We conclude that the district court erred in applying a subjective test to the legality of Defendants' detention. Because Trooper Wright had probable cause to arrest Defendants for violations of state traffic and federal immigration law, we conclude their detention beyond the initial purpose of the stop was reasonable, and lawful. Accordingly, we need not decide whether the totality of the circumstances justified Defendants' continuing detention on the basis of reasonable suspicion.
Trooper Wright learned at the outset of the encounter that the driver of the vehicle, Defendant Ruiz-Tovar, did not possess a valid driver's license. Under Utah law, operating a vehicle without a valid driver's license is a Class C misdemeanor. Utah Code Ann. § 53-2-202. Utah law authorizes arrest for the commission of a Class C misdemeanor. Id. § 77-7-2. See United States v. Lugo, 170 F.3d 996, 1003 (10th Cir. 1999). Thus, probable cause to arrest Defendant Ruiz-Tovar arose seconds into the stop.
Rather, because Defendant Ruiz-Tovar did not appear to speak English, and Defendant Santana-Garcia appeared to speak only limited English, Trooper Wright radioed for the assistance of Spanish-speaking Trooper Lindsey. While awaiting Trooper Lindsey's arrival, Trooper Wright, after verifying Defendant Santana Garcia's identity and running the vehicle's license plate, inquired about the vehicle's owner and about Defendants' travel plans. This questioning occurred within about five minutes of the initial stop and was plainly permissible. "Questions about travel plans are routine and may be asked as a matter of course without exceeding the proper scope of a traffic stop." United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000). Moreover, because neither Defendant was listed as the registered owner of the vehicle and had no proof of authority to operate the vehicle, Trooper Wright was authorized to inquire about the vehicle's ownership. See United States v. Galindo-Gonzales, 142 F.3d 1217, 1223 (10th Cir. 1998) ("[A] defining characteristic of our traffic stop jurisprudence is that the defendant's lack of . . . indicia of proof to lawfully operate and possess the vehicle in question gives rise to objectively reasonable suspicion that the vehicle may be stolen.") (internal quotations, brackets, and ellipses omitted).
During the exchange, Defendants at one point indicated they were coming from Mexico. This prompted Trooper Wright to ask Defendants whether they were "legal." Defendant Santana-Garcia appeared to understand the trooper's inquiry, shook his head, and answered "no." Defendant Ruiz-Tovar also appeared to understand and responded in a like manner. At this point, Trooper Wright, regardless of his subjective belief that he had no authority to arrest Defendants, had probable cause to arrest both Defendants for suspected violation of federal immigration law.
We noted just recently that state law enforcement officers within the Tenth Circuit "have the general authority to investigate and make arrests for violations of federal immigration laws," and that federal law as currently written does nothing "to displace . . . state or local authority to arrest individuals violating federal immigration laws." United States v. Vasquez-Alvarez, 176 F.3d 1294, 1296, 1299 n.4, 1300 (10th Cir. 1999). Rather, we observed that federal law "evinces a clear invitation from Congress for state and local agencies to participate in the process of enforcing federal immigration laws." Id. at 1300.
Fifteen years earlier in United States v. Salinas-Calderon, 728 F.2d 1298, 1301-02 & n.3 (10th Cir. 1984), we likewise noted state law enforcement officers' "general investigatory authority to inquire into possible immigration violations." In Salinas-Calderon, we specifically held that a Kansas state trooper had probable cause to make a warrantless arrest of an undocumented alien, "and the fact that [the trooper] did not know with certainty that there was a violation of the immigration laws is not controlling." Id. at 1302; see also id. (an arresting officer need not "hold a subjective belief that he has a basis for making the arrest").
Because probable cause to arrest Defendants for violations of state and federal law existed at the time of their consent to search the vehicle, Defendants' claim that they were illegally detained at the time of their consent necessarily fails. Accordingly the district court's order granting Defendants' motion to suppress on the basis of an illegal detention is reversed. This cause is remanded to the district court for further proceedings not inconsistent with this opinion.
1. The standard for reviewing a district court's grant of a motion to suppress is well established. We accept the court's findings of historical fact absent clear error. United States v. Olguin-Rivera, 168 F.3d 1203, 1204 (10th Cir. 1999). The court's ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewable de novo. United States v. Browning, 252 F.3d 1153, 1157 (10th Cir. 2001).
Neither Trooper Wright nor the defendants appeared to fully understand the conversation as a result of the language barrier. During the conversation, Trooper Wright asked "where are you coming from? Are you coming from California?" Santana-Garcia responded with a question , "From?" Trooper Wright said "yeah from," to which Santana-Garcia stated "Mexico." Trooper Wright then questioned defendants about whether they had been in Mexico and whether they were "legal." Defendants both responded that they had been in Mexico and were not legal.
Aplt's App. Vol. I, at 103 (internal record citations omitted) (emphasis added). The videotape of the encounter, admitted into evidence at the suppression hearing without objection, plainly shows this exchange.
3. Defendants explained to Trooper Lindsey that they began their trip in Oregon, spent the night in Ogden, Utah, and were traveling to Colorado, but had missed their exit and turned around on the interstate shortly before the stop.
In the present case, the dialogue regarding defendants' possession of the vehicle was brief and recorded entirely on video. It consisted of Trooper Wright's question, "whose car?" to which Santana-Garcia simply replied, "my friend's." This court is of the opinion that Santana-Garcia's brief reply is not the equivalent of stating that he "gained possession from the owner or someone with the authority to grant possession." United States v. Arango, 912 F.2d 441, 445 (10th Cir. 1990). As for defendant Ruiz-Tovar, he did not claim any interest in the vehicle, and claimed only to be a passenger getting a ride from Idaho to Colorado. A passenger who has neither a possessory nor a property interest in a vehicle does not have standing to challenge a search or seizure of that vehicle. United States v. Eylicio-Montoya, 70 F.3d 1158, 1162 (10th Cir. 1995). Accordingly, the court concludes that both defendants have failed to establish an expectation of privacy in the vehicle sufficient to allow them to contest its search.
Aplt's App. Vol. I, at 107 (internal record citations omitted). Defendants do not contest on appeal the district court's holding that they lacked standing to challenge the search of the vehicle.
5. The Government did not vigorously present these additional factors to the district court until a motion to reconsider the court's grant of Defendants' motion to suppressmuch too late for effective advocacy.
6. If Trooper Wright had made a custodial arrest of Defendant Ruiz-Tovar at that point, the trooper could have lawfully searched the passenger compartment of the vehicle as a contemporaneous incident of that arrest. See Knowles v. Iowa, 525 U.S. 113, 118 (1998) (citing New York v. Belton, 453 U.S. 454, 460 (1981)).
7. Unnecessary to our decision in Vasquez-Alvarez, but nonetheless noteworthy, was Defendant's acknowledgment that applicable state law specifically authorized local law enforcement officials to make arrests for violations of federal law. 176 F.3d at 1296-97 (citing 11 Okla. Op. Att'y Gen. 345 (1997)).


Before Judges Yannotti, Carroll, and Leone.
a week, a form of periodic service.          The Law Division reversed.
Municipal    Court   Practice   §   29:3-3   (2017)    (citing   State    v.
ineligible for periodic service of the mandatory 180-day sentence.
Accordingly, we affirm the Law Division.
shot of scotch whiskey. The alcohol affected his ability to drive.
and hit another parked car, and again kept driving to his house.
for DWI, and a prior conviction for controlled substances.
leaving the scene, and for careless driving.
sentence on Mondays and Tuesdays only.
The State appealed the "illegal sentence" on the DWI offense.
N.J.S.A. 39:4-50(a)(3) is without merit,"
Defendant   raises    an   issue     of    statutory    interpretation.
legal issues,'" we apply "'a de novo standard of review applies.'"
must hew to that standard of review.
of a day to the nearest hour actually served."
offenses made effective January 20, 2004 by "Michael's Law," L.
N.J.S.A. 2B:12-22 was adopted in L. 1993, c.
292, § 1, and became effective on February 15, 1994.
facility . . . .
be released on a work release program.
basis in the legislative history, and produces absurd results.
2003); Sponsors' Statement appended to S. 2378 (Mar. 10, 2003).
substitute and statement. Senate Comm. Substit. for S. 2378 (Nov.
24, 2003); Senate L. & Pub. Safety & Veterans' Affairs Comm.
Statement to Senate Comm. Substit. for S. 2378 (Nov. 24, 2003).
third and subsequent [DWI] offenses."    Governor's Statement at 1.
streets.    It will guarantee they spend time in jail.'"   Ibid.
reoffend."    Sponsors' Statement at 53.
serve both "90 days imprisonment in a county jail or workhouse"
and "a 90-day drug or alcohol inpatient rehabilitation program."
workhouse."    Assemb. L. & Pub. Safety Comm. Statement to Assemb.
A. 3342 1 (Nov. 24, 2003) [Senate Committee Statement].
90 days would have to be served in jail without exception."
Committee Substitute at 3; Senate Committee Amended Bill at 3.
Assembly Committee Statement at 1.
themselves off the streets.'"       Governor's Statement at 1.
keeping such defendants confined for the 180 days.
interpretation of Michael's Law in State v. Luthe, 383 N.J. Super.
383 N.J. Super. at 513.
authority for imposition of a periodic sentence"); see State v.
"SLAP" refers to a sheriff's "labor assistance program."
days on a restaurant's schedule.
sentencing options" for third or subsequent DWI offenders.                      Id.
some of the same characteristics" as jail).                   We ruled N.J.S.A.
N.J.S.A. 39:4-51 authorized work release.
of a first or second violation of Section 39:4-50[.]'"                Ibid.
N.J.S.A. 39:4-51).     We added that "
does not allow work release as an alternate form of sentencing."
home arrest, day reporting and weekend reporting."          Id. at 516.
construction of the statute."      Ibid.
(App. Div. 2007).    We made clear "Luthe is binding."          Id. at 391.
facility' with 'no allowance for noncustodial alternatives.'"
383 N.J. Super. at 514).
and rejected his request to serve "his sentence on weekends"
denied to first and second DWI offenders.
provisions of Michael's Law . . . and the ruling in State v.
388 N.J. Super. at 432.
of third and subsequent DWI offenses."
388 N.J. Super. at 438.
alternative programs . . . must cease."             Id. at 516.
388 N.J. Super. at 439-40.
to weekend sentences in Kotsev and Luthe are dicta."       State v.
Rodriguez, __ N.J. Super. __, __ n.12 (App. Div. Apr. 12, 2018).
periodic service.      N.J. Super. at    n.12.
DWI Offenders – State v. Luthe and 'Michael's Law'" at 1-2 (Oct.
the streets, even if they won't keep themselves off the streets.'"
388 N.J. Super. at 433-34.
388 N.J. Super. at 440.     However, N.J.S.A.
N.J.S.A. 2B:12-22, and Luthe properly relied on them.
139 N.J. 582, 591 (1995).
days a week was effectively a request for work release.
service can be limited to "particular days."
admitted into work release or SLAP programs."               Ibid.
no   guarantee    of    a   day-for-day     reduction.
"be released on a work release program."
language to bar work release as the Legislature intended.
383 N.J. Super. at 515-16.
had been served, and were ineligible for weekend service.
of the 2004 amendments" to "increase the penalties for violators").
with the overall legislative scheme."
the gun laws.     Id. at 239.
designed to strengthen the DWI laws and increase traffic safety.
the    use    of    hand-held    wireless      phones   in     moving   vehicles."
to public policy, the spirit of the law should control.'"                     Ibid.
Legislature's draftsmanship was "'subject to criticism'").
construction must be construed strictly against the State."
release, not allow periodic service.
189 N.J. 539, 550, 553 n.4 (2007).
to warrant discussion.   R. 2:11-3(e)(2).


§ 410.020 Intent and Purpose.
§ 410.030 Rules For Interpreting Language.
§ 410.040 Definitions of Terms.
§ 410.060 Requirements in Each District.
§ 410.070 Zoning District Map.
§ 410.090 Vacation of Public Ways.
§ 410.100 Boundaries of Districts.
§ 410.140 Legal Lots of Record.
§ 410.150 Application of District Regulations.
§ 410.160 "AG" Agricultural District.
§ 410.170 "SF-1" Single-Family Residential District.
§ 410.180 "SF-2" Single-Family Residential District.
§ 410.190 "SF-3" Single and Two-Family Residential District.
§ 410.200 "MR" Multi-Family Dwelling District.
§ 410.210 "MHP" Manufactured Home Park District.
§ 410.220 "HS" Health Services District.
§ 410.230 "GC" General Commercial District.
§ 410.240 "DC" Downtown Commercial District.
§ 410.250 "HC" Highway Commercial District.
§ 410.260 "LI" Light Industrial District.
§ 410.270 "HI" Heavy Industrial District.
§ 410.280 "P-D" Planned Development District.
§ 410.300 Use Standards Chart.
§ 410.320 Height Exceptions and Limitations.
§ 410.340 Parking of Commercial Vehicles in Residential Areas.
§ 410.350 Parking or Storage of Vehicles.
§ 410.360 Accessory Uses and Structures.
§ 410.370 Fences and Walls.
§ 410.390 Required Corner Visibility.
§ 410.400 Satellite Dish Antennas.
§ 410.420 General Parking Standards.
§ 410.430 Required Off-Street Parking Spaces.
§ 410.440 Entries, Exits, Drives and Maneuvering Areas.
§ 410.450 Off-Street Loading Requirements.
§ 410.470 Application For Conditional Use Permit.
§ 410.480 Planning Commission Review.
§ 410.490 Action By The Board of Aldermen.
§ 410.500 Criteria For Reviewing All Applications.
§ 410.510 Standards For Issuance of Conditional Use Permits.
§ 410.520 Additional Conditions For Conditional Uses.
§ 410.530 Conditions, Safeguards and Restrictions.
§ 410.570 Application, Review and Approval of A Site Plan.
§ 410.580 Site Plan Required.
§ 410.585 Compliance With Subdivision Regulations.
§ 410.590 Maintenance of Constructed Improvements.
§ 410.610 Downtown Overlay District.
§ 410.620 Transitional Multi-Use Overlay District.
§ 410.630 "M-13" Highway Corridor Overlay District.
§ 410.640 Manufactured Home — Residential Design Overlay District.
§ 410.670 Standards and Conditions For Residential Planned Unit Developments.
§ 410.690 Classification of Signs.
§ 410.730 Intent and Purpose.
§ 410.760 Transition Buffer General Provisions.
§ 410.770 Transition Buffer Specifications.
§ 410.780 Transition Buffer Requirements.
§ 410.800 Community Policing Through Environmental Design (Cpted).
§ 410.810 Scope of Provisions.
§ 410.820 Permits, Orders and Certifications.
§ 410.830 Procedures For Obtaining Building Permits and Inspections.
§ 410.840 Fees, Charges and Expenses.
§ 410.850 Violations and Penalties.
§ 410.870 Matters To Be Considered For Zoning District Amendments.
§ 410.880 Amendments To Text.
§ 410.900 Board of Aldermen.
§ 410.940 Powers of The Board.
§ 410.960 Appeal of Decision of Board.
§ 410.970 Effect of Conflicting Provisions.
§ 410.980 Restraining and Correcting of Violations.
§ 410.990 Interpretation and Purpose of Chapter.
Section 410.020 Intent and Purpose.
Section 410.030 Rules For Interpreting Language.
Section 410.040 Definitions of Terms.
Section 410.060 Requirements in Each District.
Section 410.070 Zoning District Map.
Section 410.090 Vacation of Public Ways.
Section 410.100 Boundaries of Districts.
Section 410.140 Legal Lots of Record.
Section 410.150 Application of District Regulations.
Section 410.160 "AG" Agricultural District.
Section 410.170 "SF-1" Single-Family Residential District.
Section 410.180 "SF-2" Single-Family Residential District.
Section 410.190 "SF-3" Single and Two-Family Residential District.
Section 410.200 "MR" Multi-Family Dwelling District.
Section 410.210 "MHP" Manufactured Home Park District.
Section 410.220 "HS" Health Services District.
Section 410.230 "GC" General Commercial District.
Section 410.240 "DC" Downtown Commercial District.
Section 410.250 "HC" Highway Commercial District.
Section 410.260 "LI" Light Industrial District.
Section 410.270 "HI" Heavy Industrial District.
Section 410.280 "P-D" Planned Development District.
Section 410.300 Use Standards Chart.
Section 410.320 Height Exceptions and Limitations.
Section 410.340 Parking of Commercial Vehicles in Residential Areas.
Section 410.350 Parking or Storage of Vehicles.
Section 410.360 Accessory Uses and Structures.
Section 410.370 Fences and Walls.
Section 410.390 Required Corner Visibility.
Section 410.400 Satellite Dish Antennas.
Section 410.420 General Parking Standards.
Section 410.430 Required Off-Street Parking Spaces.
Section 410.440 Entries, Exits, Drives and Maneuvering Areas.
Section 410.450 Off-Street Loading Requirements.
Section 410.470 Application For Conditional Use Permit.
Section 410.480 Planning Commission Review.
Section 410.490 Action By The Board of Aldermen.
Section 410.500 Criteria For Reviewing All Applications.
Section 410.510 Standards For Issuance of Conditional Use Permits.
Section 410.520 Additional Conditions For Conditional Uses.
Section 410.530 Conditions, Safeguards and Restrictions.
Section 410.570 Application, Review and Approval of A Site Plan.
Section 410.580 Site Plan Required.
Section 410.585 Compliance With Subdivision Regulations.
Section 410.590 Maintenance of Constructed Improvements.
Section 410.610 Downtown Overlay District.
Section 410.620 Transitional Multi-Use Overlay District.
Section 410.630 "M-13" Highway Corridor Overlay District.
Section 410.640 Manufactured Home — Residential Design Overlay District.
Section 410.670 Standards and Conditions For Residential Planned Unit Developments.
Section 410.690 Classification of Signs.
Section 410.730 Intent and Purpose.
Section 410.760 Transition Buffer General Provisions.
Section 410.770 Transition Buffer Specifications.
Section 410.780 Transition Buffer Requirements.
Section 410.800 Community Policing Through Environmental Design (Cpted).
Section 410.810 Scope of Provisions.
Section 410.820 Permits, Orders and Certifications.
Section 410.830 Procedures For Obtaining Building Permits and Inspections.
Section 410.840 Fees, Charges and Expenses.
Section 410.850 Violations and Penalties.
Section 410.870 Matters To Be Considered For Zoning District Amendments.
Section 410.880 Amendments To Text.
Section 410.900 Board of Aldermen.
Section 410.940 Powers of The Board.
Section 410.960 Appeal of Decision of Board.
Section 410.970 Effect of Conflicting Provisions.
Section 410.980 Restraining and Correcting of Violations.
Section 410.990 Interpretation and Purpose of Chapter.


text:
Welcome to our privacy statement! Below we would like to inform you about the processing of your data by Telugu Basha.
Important: We would like to provide you an innovative and effective learning experience. That’s why we’re constantly working on optimizing the Telugu Basha services. Of course we also consider new technical developments for this. Therefore, we need to update this privacy statement from time to time, so you can always get the latest information here.
1. Who is responsible for the data processing at Telugu Basha?
The management of Telugu Basha as mentioned in the imprint is responsible for the data processing at the Telugu Basha services according to the European General Data Protection Regulation (GDPR; in German DSGVO).
So when we talk about “we”, “us” or “Telugu Basha Services” in this privacy statement, it always means the management of the Telugu Basha services.
For questions and any other concerns about privacy at Telugu Basha, you can contact us directly by email support@telugubasha.net or by post (see imprint for the mailing address), with the additional note: “Privacy".
2. What data does Telugu Basha collect?
These access data are stored in so-called server log files. This storage is separate from the other information you provide when you use the Telugu Basha services (for example, when you register). The information stored in the server log files does not allow any direct conclusion to your person and will be anonymized after some time. Only in a few exceptional cases, we refrain from it (for example, to understand attacks on our systems or abusive applications). The legal basis of this data processing is Art. 6 para. 1 lit. b DSGVO.
Ensuring the overall security, operability and stability of our services, including the prevention of attacks.
Non-promotional communication with you regarding technical, security, and contract related matters (such as fraud alerts, account suspension, or contract changes).
Insofar as the purpose is to carry out an agreed upon contract with you or to provide you with a service requested by you, the legal basis is Art. 6 para. 1 lit. b DSGVO. Otherwise, the legal basis is Art. 6 para. 1 lit. f DSGVO, where our legitimate interests lie in the above-mentioned purposes.
The use of our Telugu Basha services requires a registration on our website. When you register with us, we will record and save the basic data you entered, such as (user) name, e-mail address and, in encrypted form, your password as mandatory fields during registration. (We may receive further information from you on the website, for example, in your personal profile). The legal basis for the aforementioned data processing is Art. 6 para. 1 sentence 1 lit. b DSGVO.
In this context, we process data solely for the purpose of communicating with you. The legal basis for data processing is Art. 6 para. 1 lit. b DSGVO.
When you register for our Telugu Basha services and/or signup for our newsletter, we might send you promotional emails. You may object to the promotional use of your data at any time by sending an e-mail to support@telugubasha.net. You can also find an unsubscribe link in each of our advertising emails. The legal basis for this data processing is Article 6 (1) (f) GDPR, based on our legitimate interest in promoting our products and services.
We use the common technologies in our advertising emails to measure the interactions with the referral emails (e.g. opening the email, clicked links). We use this data in pseudonymous form for general statistical evaluations as well as for the optimization and further development of our content and customer communication. This is done with the help of small graphics that are embedded in the newsletter (so-called pixels). The data is collected exclusively pseudonymized and also not linked with your other personal information. Legal basis for this is our aforementioned legitimate interest acc. Art. 6 para. 1 lit. f DSGVO. We want to share relevant content for our customers via our advertising mails and better understand what readers are actually interested in. If you do not wish the analysis of the usage behavior, you can unsubscribe from the promotional emails at any time or disable graphics in your email client by default. The data for the interaction with our advertising e-mails is stored pseudonymically to improve the deliverability and correction of technical defects and then completely anonymized.
We use own cookies especially for login authentication and for load distribution.
We want to enable you with a more comfortable and individual use of our website. These services are based on our aforementioned legitimate interests. The legal basis is Art. 6 para. 1 sentence 1 lit. f DSGVO.
We use several tools to analyze the general usage behavior in the Telugu Basha services. Most of the tools we use are provided by service providers and use standard Internet technologies (cookies and similar technologies) to bundle up the through the usage of the Telugu Basha services accumulated access data to pseudonymised usage profiles (e.g. the usage profiles can not be used at all for any type of identification or if so only with great effort) and to evaluate that data for us. As a result, we do not receive personal information about our users, but rather only statistical, anonymous data and reports on how the Telugu Basha services are generally used by our users.
For example, we can find out, which content of the Telugu Basha services is particularly popular, at what times our content is used to a great extent, in what order the content is typically accessed, to what extent our users find us through specific search engines and advertisements, which operating systems our users use and from which countries, regions and cities the Telugu Basha services are accessed.
When using the Telugu Basha services with mobile devices, we can also find out what type and quality our users’ Internet connection typically has (whether they are accessing via Wi-Fi or cellular and how fast data can be transferred). Some of the service providers we use sometimes also share their own demographic information with us in their reports. For example, our analytics service provider Google may, due to its own data or insights, know or estimate to a certain degree whether a user is a man or a woman and which age group they belong to. Of course, we also receive this information only in anonymous form, so you as a person are still not recognizable behind this data.
If we find that certain content is used more often in certain countries with mobile devices, we can respond to that by increasing our content for on-the-go mobile use (for example, by better distributing course content among different lessons and so that no large data needs to be transmitted).
If, for example we find that our users are particularly likely to find us through certain types of advertisements, we can take this into account in our advertising planning and thus improve the effectiveness of our marketing.
The legal basis for the usage analysis is Art. 6 para. 1 lit. f DSGVO. Our legitimate interest in data processing stems from the fact that we are adapting the Telugu Basha services to the interests, needs and habits of our users and to conduct more effective online advertising.
The following is an overview of the tools we use for the Usage Analysis. In some cases, you will find there also own information from the provider of these tools, which we provide you on their behalf.
This website uses Google Analytics, a web analytics service provided by Google Inc. (1600 Amphitheater Parkway, Mountain View, CA 94043, USA).
The opt-out is always device-specific or browser-specific. This means that the opt-out applies only to the currently used device or browser. Therefore, if you use different devices and/or browsers, you must opt-out on each device or browser.
You can set your browser to block cookies from Google.
provided deactivation plug-in in your Firefox, Internet Explorer, or Chrome browsers (this does not work on mobile devices).
Google has committed to comply with the US Department of Commerce Privacy Shield Agreement between the EU and the US on the collection, use and storage of personal information from EU Member States. Further information can be found here .
5.1. When will data be shared?
We, according to Art. 6 para. 1 lit. c DSGVO are required by law to disclose them or this is legally permitted according to Art. 6 para. 1 lit. b DSGVO as it is required for the execution of contractual relationships with you or for the execution of pre-contractual measures, which are carried out on your request.
In addition, data may be disclosed in connection with government inquiries, court orders and legal proceedings if this is required for prosecution or enforcement.
As a matter of principle, we store personal data only as long as necessary to fulfill the contractual or legal obligations to which we have collected the data. Thereafter, we delete the data immediately, unless we need to keep the data until the expiration of the statutory limitation period for evidence for civil claims or for statutory storage requirements.
For evidence, we must retain contract information for three years from the end of the year in which the business relationship ends with you. Any claims become statute-barred after the legal limitation period at the earliest at this time. Even after that, we sometimes have to save your data for accounting reasons. We are obliged to do so due to legal documentation obligations that may arise from the Commercial Code or the Tax Code. The deadlines for storing documents are two to ten years.
You have the right to information about the processing of your personal data by us at any time. In this context, we will explain the data processing and provide you with an overview of the data stored about you. If data stored with us should be wrong or out of date, you have the right to have this data corrected. You may also request the deletion of your data. If the deletion is not possible due to other legal regulations, the data will be blocked, so that they are only available for this legal purpose. You may also restrict the processing of your personal data, if e.g. the accuracy of the data on your part is doubted. You are also entitled to data portability, that means that upon your request we will send you a digital copy of the personal information you provide. In addition, you have the right to object to the processing of data, as far as they are based on our legitimate interests. Art. 6 para. 1 lit. F. DSGVO. In advertising emails you will always find an unsubscribe link. To claim the rights described here, you can always refer to the above in paragraphs 1 and 2.4. mentioned contact information.
You may withdraw a possibly given consent to the processing of your personal data at any time with effect for the future and without stating reasons. The right of revocation may be asserted by contacting us via the contact details mentioned in points 1. and 2.4.

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Complainants are Shaw Industries Group. Inc., Dalton, Georgia, United States of America and Columbia Insurance Company, Omaha, Nebraska, United States of America, represented by Neal & McDevitt, LLC, United States of America.
Respondent is freewayfloorbrokers, Anaheim, California, United States of America.
The disputed domain name <shawcarpetforless.com> (“Domain Name”) is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 12, 2008. On December 15, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On December 16, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainants on December 18, 2008 providing the registrant and contact information disclosed by the Registrar and inviting Complainants to submit an amendment to the Complaint. Complainants filed an amendment to the Complaint on December 22, 2008. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on December 30, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was January 19, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on January 20, 2009.
The Center appointed John R. Keys, Jr. as the sole panelist in this matter on January 22, 2009. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
Complainants manufacture and sell carpeting and flooring products using the SHAW trademark and various formatives of that mark.
Complainants own a number of live trademark registrations on the United States Patent and Trademark Office (USPTO) Principal Register for SHAW and related formative marks in connection with carpeting and flooring products, including but not limited to: (1) Registration No. 1,444,248 for SHAW (and Design), based on first use as early as November 25, 1985 and registered June 23, 1987; (2) Registration No. 2,291,182 for SHAW, based on first use as of November 25, 1985 and registered November 9, 1999; (3) Registration No. 2,877,500 for SHAW, based on first use as of March 31, 2001 and registered August 24, 2004. These registrations are current and incontestable as a matter of United States law under Section 15 of the Lanham Act, 15 U.S.C. § 1065.
In addition, Complainants own and have used for a number of years in connection with carpeting and flooring products registrations for various formatives of the SHAW mark, including COUTURE BY SHAW (and Design), Registration No. 2,547,524 (March 12, 2002); SHAW CONTRACT, Registration No. 2,811,298 (February 3, 2004); SHAW CONTRACT GROUP, Registration No. 3,191,367 (January 2, 2007); SHAW HOSPITALITY, Registration No. 2,675,008 (January 14, 2003); SHAW LIVING, Registration No. 3,010,847 (November 1, 2005); SHAW RUGS, Registration No. 2,686,164 (February 11, 2003); and several others.
Complainants have also registered and used the domain names <shawcarpet.com>; <shawcarpets.com>; <shaw-carpets.com>; <shawcarpets.net>; and <shawcarpetvalue.com>, among others.
Respondent registered the Domain Name on August 14, 2008. The Domain Name resolves to a parked site which exhibits links to many carpet, rug and flooring-related sites, some using the Shaw name and a number of them directed to Shaw competitors.
Complainants contend that Shaw is one of the leading carpeting and flooring companies in the United States and is well-known internationally, that it has used the SHAW mark in connection with carpeting and flooring since at least as early as 1985, and that it has spent millions of dollars displaying, promoting, and advertising the SHAW marks.
Complainants contend that they own the SHAW mark and various formatives by reason of their registrations in the United States and Complainants' use of the marks over many years.
Complainants further contend that the Domain Name is confusingly similar to their SHAW marks. The addition of the words “carpet” and “for less” to the SHAW mark does nothing to differentiate the Domain Name from Complainants' marks. The addition of “.com” is an irrelevant distinction.
Complainants contend that Respondent has no right or legitimate interest in the Domain Name. There is no evidence that Respondent has been commonly known by the Domain Name or that Respondent has registered or applied to register any trademark containing the name Shaw or any formatives of that name.
Complainants contend that there is no evidence that Respondent has used or is preparing to use the Domain Name in connection with a bona fide offering of goods or services. Nor is Respondent making a legitimate noncommercial or fair use of the Domain Name. Respondent, Complainants contend, is instead using the Domain Name misleadingly to divert customers from their websites to its own for commercial gain. Respondent likely obtained the Domain Name based on its similarity to Complainants' marks in the hope that Internet users searching for Complainants' websites would come across Respondent's site. This, Complainants contend, does not provide a legitimate interest in the Domain Name under the Policy.
Complainants further contend that Respondent registered and is using the Domain Name in bad faith. Respondent has intentionally attempted to attract Internet users to Respondent's website, for commercial gain, by creating a likelihood of confusion with Complainants' marks as to the source, sponsorship, affiliation, or endorsement of Respondent's website or of a product or service on Respondent's website.
Respondent has incorporated a well-known trademark in its Domain Name, without authorization from Complainants and without having any affiliation with Complainants. The website hosts links to external websites, including websites of Complainants' competitors.
The website is “parked free” with the Registrar and contains advertising for the Registrar, which has been found to constitute evidence of bad faith.
Finally, Respondent “went to the trouble of devising another variation [of Complainants' marks] not contemplated by the Complainants,” which Complainants contend constitutes further evidence of bad faith.
Complainants request transfer of the Domain Name to Complainant Shaw Industries Group, Inc.
Because Respondent did not respond to the Complaint, the Panel considers whether Respondent has been given adequate notice of the proceeding. The evidence indicates the Center sent the Complaint in electronic form and in hard copy by courier to Respondent at the addresses provided in Respondent's registration information and available in the WhoIs. The Panel concludes that the Center discharged its responsibility under the Rules to notify Respondent of the Complaint and the administrative proceeding.
Where a respondent does not respond to the complaint, the panel must decide the dispute based upon the complaint. Rules, paragraphs 5(e) and 14(a). The panel is to decide the complaint on the basis of the statements and documents submitted, in accordance with the Policy, the Rules and any principles of law the panel deems applicable. Rules, paragraph 15(a). Under Rules, paragraph 14(b), Respondent's failure to answer entitles the Panel to “draw such inferences therefrom as it considers appropriate”.
(iii) Respondent's Domain Name was registered and is being used in bad faith.
Complainants clearly possess legal rights in the SHAW trademarks by reason of their longstanding use of the marks in commerce and by registrations of the marks in the United States on the Principal Register of the USPTO. See Costco Wholesale Membership, Inc., Costco Wholesale Corporation v. Jogn Dinway/Hosting Media, WIPO Case No. D2007-1426; Uniroyal Engineered Products, Inc. v. Nauga Network Services, WIPO Case No. D2000-0503.
The Panel finds that the Domain Name, <shawcarpetforless.com>, is confusingly similar to Complainants' SHAW trademarks. The Domain Name incorporates Complainants' SHAW trademark in its entirety with the correct spelling. Complainants' basic trademark and the distinctive, dominant component of the Domain Name are the same.
The addition to Complainants' SHAW trademark of the words “carpet for less” does not obviate the likelihood of confusion. “Generally, a user of a mark may not avoid likely confusion by appropriating another's entire mark and adding descriptive or non-distinctive matter to it.” 3 J. Thomas McCarthy, McCarthy on Trademarks & Unfair Competition § 23: 50 (4th ed. 2005); Pfizer, Inc. v. United Pharmacy Ltd., WIPO Case No. D2001-0446. See Utensilerie Associate S.p.A. v. C & M, WIPO Case No. D2003-0159; General Electric Company v. CPIC NET and Hussain Syed, WIPO Case No. D2001-0087; Eastman Chemical Company. v. Manila Industries, Inc., NAF Claim No. FA 450806; Pioneer Hi-Bred International, Inc. v. Manila Industries, Inc., NAF Claim No. FA 444468. Prior UDRP panels have found the likelihood of confusing similarity has not been avoided by the addition of descriptive content even where entire words have been added to a famous trademark. See The Coca-Cola Company v. Gamlebyen Invest AS, WIPO Case No. D2000-1677 (COCA-COLA and “cocacoladrinks” held confusingly similar); America Online, Inc. v. Anson Chan, WIPO Case No. D2001-0004, citing Sporty's Farm LLC. v. Sportsman's Market. Inc., 202 F. 3d 489, 497-98 (2d. Cir. 2000); Yahoo! Inc. v. CPIC NET and Syed Hussain, WIPO Case No. D2001-0195; America Online, Inc., v. Yeteck Communication, Inc., WIPO Case No. D2001-0055. The words “carpet for less” are generic, descriptive and non-distinctive here and do not diminish likelihood of confusion with Complainants' trademarks.
Moreover, use of the word “carpet”, a product strongly associated with Complainants' trademarks, tends to increase rather than diminish the confusing similarity between the Domain Name and Complainants' marks. See Costco Wholesale Membership, Inc., Costco Wholesale Corporation v. Yong Li, WIPO Case No. D2004-0296 (descriptive term “tires” in <costcotires.com> increases confusion); Media West-GSI, Inc., Gannett Satellite Information Network, Inc., and Gannett Co., Inc. v. Cupcake City and null John Zuccarini a/k/a John Zuccarini, WIPO Case No. D2001-0235 (addition of “sports” and “weather” to name of newspaper caused confusion); Capital Broadcasting Company, Inc. v. Private, WIPO Case No. D2000-1609 (addition of “weather” heightened confusion with television call letter mark).
Complainants have established confusing similarity of the Domain Name and Complainants' trademarks, the first element of their case. Policy, paragraph 4(a)(i).
Complainants make a sufficient prima facie case that Respondent possesses no rights or legitimate interests in the Domain Name. Respondent has no apparent connection to Complainants, and Complainants have not authorized Respondent to use the SHAW trademarks. Sanrio Company Ltd and Sanrio v. Neric Lau, WIPO Case No. D2000-0172 (interests in the domain name not legitimate where there is no authorized association with trademark owner).
There is no evidence that Respondent has been commonly known by the Domain Name or that Respondent has registered or applied to register any trademark containing the name Shaw or any formatives of that name. Policy, paragraph 4(c)(ii).
Further, the evidence shows that Respondent is not using the Domain Name in connection with a bona fide offering of goods or services. Policy paragraph 4(c)(i). The evidence of record shows that Respondent is using the SHAW name and trademark intentionally to divert Internet traffic from Complainants to a website with which Complainants have no relationship and which, in fact, contains links to some of Complainants' competitors. Respondent thus is creating a false impression of association or sponsorship between Complainants and Respondent's website which is deceptive to the Internet user and presumptively harmful to Complainants' goodwill in the SHAW mark. This cannot be considered a bona fide offering of services by Respondent. See Shaw Industries Group, Inc., Columbia Insurance Company v. Administrator, Domain, WIPO Case No. D2007-0583; Telstra Corporation v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
The evidence suggests also that Respondent is not making either a noncommercial or a fair use of the Domain Name. Policy, paragraph 4(c)(iii). The website appears clearly to be commercial in nature in that it provides the user with links to a number of commercial sites, lists several sponsored results including links to Complainants' competitors), and carries registrar advertising.
Respondent has defaulted here. It has thus failed to come forward with any evidence to counter Complainants' prima facie case and has not, therefore, established that it has rights or legitimate interests in the Domain Name.
Complainants have established that Respondent has no rights or legitimate interests in the Domain Name, the second element of their case. Policy, paragraph 4(a)(ii).
Complainants must demonstrate that Respondent registered and is using the Domain Name in bad faith. Policy, paragraph 4(a)(iii).
Prior UDRP panels have held that in certain circumstances actual or constructive knowledge of complainant's rights in trademarks may be a factor indicating bad faith registration. Ticketmaster Corporation v. Spider Web Design, Inc., WIPO Case No. D2000-1551); The Channel Tunnel Group Ltd. v. John Powell, WIPO Case No. D2000-0038. Based upon Complainants' multiple registrations and use of the SHAW trademarks in connection with the manufacture and sale of carpet, the Panel finds that Respondent had actual and constructive knowledge of Complainants' trademarks when it registered the Domain Name. See 15 U.S.C. § 1072; Cellular One Group v. Paul Brien, WIPO Case No. D2000-0028 (Respondent had prior constructive or actual knowledge of complainant's trademark because the mark was registered); Waterman, S.A.S. v. Brian Art, WIPO Case No. D2005-0340 (finding bad faith registration and noting that complainant's mark was well-known); Marconi Data Systems, Inc. v. IRG Coins and Ink Source, Inc., WIPO Case No. D2000-0090 (registration of a mark puts respondent on constructive notice); Microsoft Corporation v. Party Night, Inc. d/b/a/ Peter Carrington, WIPO Case No. D2003-0501 (“It is not reasonable to expect the Respondent to register the disputed domain names if the Respondent had no knowledge of the Complainant's trademark and services in connection thereto”).
Registration of a domain name that is confusingly similar to a famous trademark by an entity that has no relationship to that mark may itself be evidence of bad faith registration and use. Sporty's Farm L.L.C. v. Sportsman's Market, Inc., supra; Pepperdine University v. BDC Partners, Inc., WIPO Case No. D2006-1003; Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163 (use of a name connected with such a well-known product by someone with no connection with the product suggests opportunistic bad faith).
The Panel finds that Respondent registered the Domain Name, which is confusingly similar to well-known trademarks belonging to Complainants, with actual and constructive knowledge of Complainants' rights in the marks and that, as discussed above, Respondent has no demonstrated relationship to or right or legitimate interest in any of Complainants' marks. The Panel thus concludes that Respondent registered the Domain Name in bad faith.
With regard to bad faith use of the Domain Name, the Policy provides that bad faith exists, inter alia, where the respondent “has intentionally attempted to attract, for commercial gain, Internet users to [its] website …by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [its] web site or location or of a product or service on their website or location”. Policy, paragraph 4(b)(iv). This appears clearly to be what Respondent is doing here. Respondent is knowingly using the SHAW mark, trading on its established goodwill, to attract and divert Internet users to Respondent's website by creating a false impression that the site is affiliated with or sponsored by Complainant Shaw. See Lifetime Products, Inc. v. IQ management Corporation, WIPO Case No. D2004-0719. The fact that the website contains links to numerous commercial sites and carries advertising, from which Respondent likely benefits from click-through revenues, supports the inference that the purpose of Respondent's diversion of traffic from Complainants to its own site is Respondent's commercial gain. See Ticketmaster Corporation v. Yong Li, WIPO Case No. D2003-0905; Costco Wholesale Membership, Inc., Costco Wholesale Corporation v. Henry Chan, WIPO Case No. D2004-0218; Costco Wholesale Membership, Inc., Costco Wholesale Corporation v. Yong Li, supra.
The fact that Respondent's website is “parked free” with the registrar does not negate the inference of bad faith here. Other UDRP panels have found evidence of bad faith with respect to such sites. Hardee's Food Systems Inc. v. Denise Jones, WIPO Case No. D2006-1571; Max Rohr, Inc. v. Puros Dawa HB S.A., WIPO Case No. D2005-0488. Even if the Panel were to treat such a site as a form of passive use, the Panel finds bad faith where, as here, Complainants' marks are widely known in connection with carpeting and flooring products; Respondent knew of Complainants' business and products marketed under the SHAW name; Respondent failed to respond to the Complaint; and it is not possible to conceive of any plausible actual or contemplated active use by Respondent that would not be illegitimate. Max Rohr, Inc. v. Puros Dawa HB S.A., supra; Telstra Corporation v. Nuclear Marshmallows, supra.
Complainants have established bad faith registration and use of the Domain Name, the third and final element of their case.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <shawcarpetforless.com> be transferred to Complainant Shaw Industries Group, Inc.


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Mandatory Class Action Waivers in Employment Agreements: Is a Final Answer Forthcoming?
Many employers use or have considered using arbitration agreements that both require all employment-related claims to be adjudicated in arbitration and preclude class and/or collective claims. These agreements can be invaluable tools to limit costly and time-consuming class and collective actions brought by, or on behalf of, large groups.
In recent years, the U.S. Supreme Court has interpreted the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), to enforce arbitration agreements despite objections mounted by the plaintiffs’ bar and some state courts.
While the Supreme Court has upheld class action waivers in the consumer context, it is unclear whether the FAA’s liberal approach to arbitration applies in the employment context. The National Labor Relations Board (“NLRB” or “Board”) contends that these provisions are unlawful because the potential formation of class or collective actions contesting employment issues is a “group activity” allegedly embraced by the National Labor Relations Act’s (“NLRA’s”) Section 7 right of employees to engage in “protected concerted” activities.
On October 2, 2017, the first day of its fall 2017 term, the Supreme Court will hear arguments in three related cases involving the legality of class action waivers in arbitration agreements for employment-related claims: Ernst & Young LLP v. Morris, Epic Systems Corp. v. Lewis, and NLRB v. Murphy Oil USA, Inc. In all three cases, the plaintiffs, who had previously signed arbitration agreements containing waivers, asserted collective action claims under the FLSA, as well as state law wage claims. The defendant employers moved to dismiss the collective actions and compel individual arbitration of the employees’ claims. At issue in all three cases is whether arbitration agreements prohibiting class and/or collective actions are enforceable or barred by the NLRA.
The Fifth Circuit, in NLRB v. Murphy Oil USA, Inc., 808 F.3d 1013 (5th Cir. 2015), rejected the NLRB’s position and held that adjudicating a claim collectively is not a substantive right protected by the NLRA, and that the Board’s interpretation of the NLRA impermissibly conflicts with the FAA. The Second and Eight Circuits have also held that class action waivers are enforceable.
The Seventh and Ninth Circuits, on the other hand, have adopted the Board’s position that such agreements are a violation of the NLRA, in Lewis v. Epic Systems Corp., 823 F.3d 1147 (7th Cir. 2016), and Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016), respectively.
In Lewis, the Seventh Circuit declined to enforce a clause that precluded employees from seeking any class, collective, or representative remedies in wage and hour disputes. The court found that the clause was unenforceable because it required employees to stipulate away their NLRA Section 7 rights. Moreover, the court found that the clause was unenforceable under the FAA. Because the court viewed the clause as unlawful under Section 7 of the NLRA, it was therefore an illegal provision and met the criteria of the FAA’s saving clause for non-enforcement.
A few months later, the Ninth Circuit in Morris also held that the NLRA precludes agreements requiring employees to waive concerted legal claims regarding wages, hours, and terms or conditions of employment.
What Will the Supreme Court Do?
As noted, the Supreme Court has demonstrated a preference for arbitration in recent years. The confirmation of Justice Neil Gorsuch may also favor the enforcement of class action waivers in arbitration agreements. Justice Gorsuch’s past arbitration rulings demonstrate that he favors the FAA’s liberal approach to enforcement of arbitration agreements and sees the FAA as establishing substantive federal law favoring arbitration that preempts conflicting state law doctrines. Moreover, past decisions show a reluctance to defer to administrative agency interpretations and skepticism of aggressive agency action. He has already expressed the view that the NLRB should have a more limited scope of authority. Accordingly, Justice Gorsuch may, in the case of a split, cast the deciding vote, and there is reason to believe that the Court will again find in favor of the legality of class action waivers.
While we cannot definitively predict the Supreme Court’s decision, we can be sure that the decision will greatly impact employers and employees alike, and that it will provide much-needed clarity on this key issue.
Once the Supreme Court issues its ruling, employers should (i) promptly review their existing mandatory arbitration and class waiver agreements and (ii) consider adopting them (if not already in use) if the Court rejects the NLRB’s arguments.

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One of the most effective ways to manage risk in an investment strategy is by diversifying a portfolio. As the old saying goes, “don’t put all your eggs in one basket.” While this is perhaps one of the most fundamental rules of investing, it is also one that is often ignored. Stock brokers and financial advisors have a fundamental obligation to diversity their customer’s holdings across different sectors and asset classes. The failure to diversify can often lead to significant losses.
While it is correct that courts and arbitration panels evaluate failure to diversify cases on a case-by-case basis, there are a number of court cases that provide examples of impermissible conduct. We have summarized cases from several jurisdictions below.
GIW Industries, Inc. v. Trevor, Stewart, Burton & Jacobsen, Inc., was an Eleventh Circuit Court of Appeals decision concerning the failure to diversify a bond portfolio. The case originated from a district court decision in Georgia. The Court found that a concentration of 70% in government bonds with a single maturity date created an unreasonable risk. see GIW Industries, Inc. v. Trevor, Stewart, Burton & Jacobsen, Inc., 895 F.2d 729 (11th Cir. 1990).
In Culbertson v. J.J.B Hillard and W.L. Lyons, a FINRA arbitration panel in Ohio awarded $129,000 in compensatory damages as well as $45,150 in attorneys’ fees. FINRA Case 11-03226. The case concerned the brokers, failure to diversify a client’s account. According to the FINRA award, the Claimant alleged that her assets were over-concentrated almost exclusively in low-growth cash and fixed income investments.
In re Estate of Janes, was a 1997 cases decided by the New York State Court of Appeals, which, despite the misnomer, is the highest court in New York State. In that case, the Court found that there was sufficient evidence at trial to find that an investment portfolio, which included a 71% concentration in Kodak stock constituted a failure to diversify. See In re Estate of Janes, 90 N.Y.2d 41 (N.Y. 1997). The trial court in arriving at this conclusion that the investment allocation was not diversified also considered the age and lifestyle of the investor, who was a 72 year old widow.
In a Securities and Exchange Commission administrative proceeding, Paine Webber, Inc. was ordered to, among other things, pay an administrative fine of $5 million for failing to diversify client assets. This case is significant because it involved illiquid private placements rather than traditional equities like stocks or mutual funds.
In Plasterers’ Local Union v. Pepper, was a Fourth Circuit Court of Appeals case concerning the failure to diversify certificate of deposits. The case concerned an appeal of a Maryland district court holding. The appeals court found that the Maryland district court appropriately found that a concentration in conservative investments of CDs of less than $100,000 and treasury bills was unreasonable. However, the case was ultimately remanded back to the district court to calculate what damages, if any, should be awarded. Plasterers’ Local Union v. Pepper, 663 F.3d 210 (4th Cir. 2011).
In Van Billiard v. Farrell Distrib. Corp., a federal district court in Vermont held that a plaintiff demonstrated a prima facie case, defeating a motion to dismiss, by alleging that the defendant invested over 90% of their assets in equities and only 10% in fixed income. Van Billiard v. Farrell Distrib. Corp., 2009 U.S. Dist. LEXIS 112381, 2009 WL 4729965 (D. Vt. Dec. 3, 2009).
If you or someone you know suffered investment losses due to a non-diversified portfolio, you may be able to recover your losses. Contact the law firm of Fitapelli Kurta today for a free and confidential consultations.

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When visiting my website, only access data without personal reference is collected and stored by me. Each time a user accesses a page of my website and each time a file is accessed, access data about that activity is stored in a server log file. This access data is not personal, because I can not see which person has retrieved which pages or files.
You have the following rights with regard to personal data relating to you: Information acc. Art. 15 GDPR, correction acc. Art. 16 GDPR, cancellation acc. Art. 17 GDPR, limitation of processing acc. Art. 18 GDPR, data transfer acc. Art. 20 GDPR and revocation of consent acc. Art. 7 GDPR. In addition, you have the right to complain to the data protection supervisory authority acc. Art. 77 DSGVO. This is the Berliner Beauftragte für Datenschutz und Informationsfreiheit, Friedrichstr. 219, 10969 Berlin.

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Attorney Marie Sarantakis discusses five things lawyers can do to improve their social media presence. Tips include creating shareable content, posting early and often, asking for reviews, taking advantage of existing networks, and finding what works for you.
In a profession that requires people to argue all day, in an era when arguing easily turns to shouting, it’s time for some self-reflection. April’s Illinois Bar Journal asks judges throughout the state and at all levels whether we’re all doing enough to keep calm. It turns out things aren’t all that bad, even if we can always do better.
Join us on April 12 for a full-day seminar in Naperville that gives you the nuts and bolts you need to assist your clients with their traffic law needs. Attorneys with basic practice experience who attend this seminar will better understand: what to expect during the initial client meeting; how standardized field sobriety testing can affect a DUI trial; how breath testing devices work; the admissibility of blood tests in DUI cases; the qualification and training requirements for drug recognition experts; how to rescind statutory suspensions; how to obtain documents from the Secretary of State; how dispositions may affect a client’s driving privileges; and the crossroads of immigration law and traffic-related offenses.
The Illinois Supreme Court handed down opinions in six cases on Thursday, March 21. In People v. Webb, the court held that the unlawful use of weapons statute that provides that it is unlawful to possess or carry a stun gun in public is unconstitutional under the Second Amendment, and in People v. Drake, remanded a defendant’s appealed aggravated battery conviction to the circuit court for a retrial. In City of Chicago v. City of Kankakee, the court held that the Illinois Department of Revenue has the exclusive authority to audit disputed sales transactions and to distribute or redistribute resulting tax revenues due to any error. In 1550 MP Road LLC v. Teamsters Local Union No. 700, the court held that a union’s lease and purchase agreement that was in violation of the Property of Unincorporated Associations Act and the union’s bylaws was unenforceable. The court issued three opinions in Wingert v. Hradisky. In Van Dyke v. White, the court addressed whether the Illinois Secretary of State Securities Department has the authority to bring an administrative action against someone also subject to regulation by the Department of Insurance.
The ISBA president elect will appoint a member to one of the underrepresented seats of the Board of Governors at the May 2019 board meeting. The member appointed to this position will serve with full board member privileges for a three-year term beginning the first day of the 2019 Annual Meeting in Geneva, Wisconsin.
Pursuant to the association bylaws, eligible candidates for the underrepresented seat include members of the association with a status of, but not limited to, age, race, gender, ethnicity, sexual orientation, disability, geography, areas and types of practice, and years of practice.
In light of the fact that email spoofers have been targeting bar associations across the country, the ISBA is warning members to be vigilant in checking the email addresses of the people sending them messages.
Email spoofing is the creation of email messages with a forged sender address. For this reason, emails may appear to be from someone within the ISBA, but will not have their correct email address in the "From" field.
Q. I am the owner of a seven-lawyer insurance defense firm in downtown Chicago. Two of the lawyers are non-equity partners and four are associates. Currently I pay the associates a set salary and a performance bonus based upon annual billable hours over 1,800. Until last year, non-equity partners were paid in the same fashion, however non-equity partners received a few additional perks such as a firm credit card and a country club membership. Last year I changed the non-equity partner compensation system to focus on collected receipts rather than billable hours. Non-equity partners receive a salary and a performance bonus based upon working-attorney-collected-received above an established threshold and a delegation bonus.
1. McHenry County Bar Association (MCBA) in 2001 started training and supplying volunteers to mediate pro se cases in the small claims court. Since it was established “our program has been successful beyond our wildest dreams, has eliminated untold small claims trial hours, has provided training and experience to a number of aspiring mediators, and most importantly, has sent more than a thousand small claims litigants home feeling satisfied that they had been fairly treated by the court system,” says the program’s founding member and full-time mediator, H. Case Ellis of Crystal Lake.
Illinois Supreme Court Holds "Law School for Legislators"
The Illinois Supreme Court hosted "Law School for Legislators" on March 13, with all seven justices, leadership, and new members of the Illinois House of Representatives and Senate in attendance.
The event, held at the Illinois Supreme Court Building in Springfield, was intended to familiarize the legislative branch with court operations and to foster dialogue of communication, cooperation, and coordination between the legislative and judicial branches.
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IBP-ELIBRARY: Are there varying interpretations of the prosecutors and the judges on Section 21 of R.A. No. 9165?
Are there varying interpretations of the prosecutors and the judges on Section 21 of R.A. No. 9165?
The prosecution bears the burden of proof to show valid cause for non-compliance with the procedure laid down in Section 21 of R.A. No. 9165, as amended.
It has the positive duty to demonstrate observance thereto in such a way that, during the proceedings before the trial court, it must initiate in acknowledging and justifying any perceived deviations from the requirements of the law.
Its failure to follow the mandated procedure must be adequately explained and must be proven as a fact in accordance with the rules on evidence. The rules require that the apprehending officers do not simply mention a justifiable ground, but also clearly state this ground in their sworn affidavit, coupled with a statement on the steps they took to preserve the integrity of the seized item.
A stricter adherence to Section 21 is required where the quantity of illegal drugs seized is miniscule since it is highly susceptible to planting, tampering, or alteration.
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EMMANUEL OLIVA Y JORJIL, BERNARDO BARANGOT Y PILAIS AND MARK ANGELO MANALASTAS Y GAPASIN, ACCUSED-APPELLANTS.
This is an appeal from the Court of Appeals (CA) Decision dated May 31, 2017 dismissing Emmanuel Oliva y Jorjil, Bernardo Barangot y Pilais and Mark Angelo Manalastas y Gapasin's appeal, and affirming the Decision dated October 28, 2015 of the Regional Trial Court (RTC), Branch 65, Makati City, convicting appellants of Violation of Sections 5 and 11, Article II of Republic Act (R.A.) No. 9165.
The Chief of Station Anti-Illegal Drugs - Special Operations Task Group (SAID-SOTG), on January 23, 2015, received a report regarding the sale of dangerous drugs by a certain "Manu" in Barangay Cembo, Makati City and its nearby areas. As such, a buy-bust operation was planned and after coordination with the Philippine Drug Enforcement Agency (PDEA), a buybust team was formed wherein Police Officer 3 (PO3) Luisito Marcelo was designated as the poseur-buyer and given a P500.00 bill as marked money, and PO1 Darwin Catabay as back-up. Thereafter, the buy-bust team proceeded to the exact location of "Manu" after it was confirmed by the confidential informant.
When they arrived at the target area, the confidential informant pointed to appellant Oliva as "Manu," the seller of dangerous drugs; thus, PO3 Marcelo and the confidential informant approached the said appellant. PO3 Marcelo was introduced by the confidential informant to appellant Oliva as a buyer who wanted to buy P500.00 worth of shabu. PO3 Marcelo handed appellant Oliva the marked money after the latter demanded payment. Appellant Oliva then showed PO3 Marcelo four (4) transparent plastic sachets with white crystalline substance and asked the latter to choose one. Meanwhile, two (2) other persons, appellants Barangot and Manalastas were also at the target area to buy shabu. Appellants Barangot and Manalastas, and PO3 Marcelo each took one sachet from the four sachets that appellant Oliva showed.
Upon receiving the dangerous drug, PO3 Marcelo immediately scratched his chin, which is the pre-arranged signal to his back-up that the transaction has been completed. Subsequently, PO3 Marcelo grabbed appellants Oliva and Barangot and, thereafter, PO1 Catabay appeared and arrested appellant Manalastas.
The police officers conducted a body search on appellant Oliva and it yielded another sachet containing white crystalline substance, the marked money and two (2) more pieces of P500.00 bills. Eventually, appellants Oliva, Barangot and Manalastas were arrested and brought to the barangay hall where an inventory was conducted and on the basis thereof, an inventory report was prepared. The confiscated items were then marked and photographed, and a request for laboratory examination was accomplished and the seized items were submitted to the PNP Crime Laboratory. The substance found inside the sachets were all tested positive for the. presence of methamphetamine hydrochloride, a dangerous drug.
On the 24th day of January 2015, in the City of Makati, Philippines, accused, not being authorized by law and without the corresponding license and prescription, did then and there willfully, unlawfully and feloniously sell, deliver and distribute zero point six (0.06) gram of white crystalline substance containing methamphetamine hydrochloride (shabu), a dangerous drug, contained in one (1) small transparent plastic sachet, in consideration of Php500.00.
On the 24th day of January 2015, in the City of Makati, the Philippines, accused, not being authorized by law to possess or otherwise use any dangerous drug and without the corresponding prescription, did then and there willfully, unlawfully and feloniously have in his possession zero point ten (0.10) gram of white crystalline substance containing methamphetamine hydrochloride (shabu), a dangerous drug.
On the 24th day of January 2015, in the City of Makati, the Philippines, accused, not being authorized by law to possess or otherwise use any dangerous drug and without the corresponding prescription, did then and there willfully, unlawfully and feloniously have in his possession zero point five (0.05) gram of white crystalline substance containing methamphetamine hydrochloride (shabu), a dangerous drug.
On the 24th day of January 2015, in the City of Makati, the Philippines, accused, not being authorized by law to possess or otherwise use any dangerous drug and without the corresponding prescription, did then and there willfully, unlawfully and feloniously have in his possession zero point three (0.03) gram of white crystalline substance containing methamphetamine hydrochloride (shabu), a dangerous drug.
Upon arraignment, appellants, with the assistance of counsel, entered pleas of "not guilty" on all charges.
All appellants used denial as a defense.
According to appellant Oliva, on January 21, 2015, around 10:30 in the evening, he was in front of a neighbor's house when several armed men, riding in motorcycles, stopped by and invited him to go with them. When he refused to go, one of the armed men pointed a gun at him, handcuffed him, and forcibly took him to the SAID-SOTG office where he was detained.
On the other hand, appellant Barangot maintained that on January 22, 2015, around 2:30 in the morning, he was having a drinking spree with one Mel and Nonoy when several men barged inside the house and arrested them. They were then brought to the SAID-SOTG office where they were detained, and subsequently, freed after Mel and Noy paid the police officers for their release.
Appellant Manalastas also denied committing the offense charged against him and claimed that on the same date, he was inside his room sleeping, when he was suddenly roused by loud noises causing him to go outside and check the commotion. He saw armed men inside his house and, thereafter, the latter took him, his mother, a certain Bong, Ronald, Abby and two (2) boarders to the SAID-SOTG office where they were all detained.
1. In Criminal Case No. 15-195, the court finds the accused, Emmanuel Oliva y Jorjil, GUILTY beyond reasonable doubt of the crime of violation of Section 5, Article II, R.A. No. 9165 and sentences each of them to suffer the penalty of life imprisonment and to pay a fine of Five Hundred Thousand Pesos (P500,000.00).
2. In Criminal Case Nos. 15-196 to 15-198, the court finds the accused, Emmanuel Oliva y Jorjil, Bernardo Barangot y Pilais and Mark Angelo Manalastas y Gapasin, GUILTY beyond reasonable doubt of the crime of violation of Section 11, Article II, RA. No. 9165 and sentences each of them to suffer the penalty of imprisonment of twelve (12) years and one (1) day, as minimum, to fourteen (14) years and eight (8) months, as maximum, and to pay a fine of Three Hundred Thousand Pesos (P300,000.00).
The period of detention of the accused should be given full credit.
Let the dangerous drugs subject matter of these cases be disposed of in the manner provided by law.
The Branch Clerk of Court is directed to transmit the plastic sachets containing shabu subject matter of these cases to the PDEA for said agency's appropriate disposition.
The RTC ruled that the prosecution was able to prove beyond reasonable doubt the guilt of the appellants.
WHEREFORE, the appeal is hereby DENIED.
The CA ruled that the prosecution was able to establish the key elements for illegal possession and sale of dangerous drugs, and that the bare denials of the appellants cannot prevail over the positive testimonies of the police officers. It also held that the failure of the prosecution to show that the police officers conducted the required physical inventory and take the photograph of the objects confiscated does not ipso facto render inadmissible in evidence the items seized.
THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE PROSECUTION WITNESSES' INCREDULOUS TESTIMONIES.
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY OF THE CRIMES CHARGED DESPITE THE POLICE OFFICERS' NON-COMPLIANCE WITH SECTION 21 OF REPUBLIC ACT NO. 9165 AND ITS IMPLEMENTING RULES AND REGULATIONS.
THE TRIAL COURT GRAVELY ERRED IN ADMITTING THE ALLEGEDLY SEIZED DRUGS DESPITE THE POLICE OFFICERS' FLAWED MANNER IN THE CONDUCT OF INVENTORY AND MARKING THE SAME.
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANTS DESPITE THE PROSECUTION'S FAILURE TO ESTABLISH EVERY LINK IN THE CHAIN OF CUSTODY OF THE ALLEGEDLY SEIZED ITEMS.
Appellants argue that it is difficult to believe the testimonies of the police officers because it is impossible for appellants to engage in drug transactions in the middle of the street, under broad daylight, and in the presence of strangers. They also claim that the arresting officers failed to immediately conduct a physical inventory of the seized items and photograph the same in the presence of the accused, their representative or counsel, a representative of the media and the Department of Justice (DOJ), and any elected public official who are required to sign the copies of the inventory. Thus, according to appellants, the prosecution failed to establish every link in the chain of custody of the seized items.
(1) the identity of the buyer and the seller, the object of the sale and its consideration; and (2) the delivery of the thing sold and the payment therefor.
In illegal sale of dangerous drugs, it is necessary that the sale transaction actually happened and that "the [procured] object is properly presented as evidence in court and is shown to be the same drugs seized from the accused."
 the accused was in possession of dangerous drugs;  such possession was not authorized by law; and  the accused was freely and consciously aware of being in possession of dangerous drugs.
In both cases involving illegal sale and illegal possession, the illicit drugs confiscated from the accused comprise the corpus delicti of the charges. In People v. Gatlabayan, the Court held that it is of paramount importance that the identity of the dangerous drug be established beyond reasonable doubt; and that it must be proven with certitude that the substance bought during the buy-bust operation is exactly the same substance offered in evidence before the court. In fine, the illegal drug must be produced before the court as exhibit and that which was exhibited must be the very same substance recovered from the suspect. Thus, the chain of custody carries out this purpose "as it ensures that unnecessary doubts concerning the identity of the evidence are removed."
(1) The apprehending team having in trial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.
(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, That the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally That noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items.
In her Sponsorship Speech on Senate Bill No. 2273, which eventually became R.A. No. 10640, Senator Grace Poe admitted that "while Section 21 was enshrined in the Comprehensive Dangerous Drugs Act to safeguard the integrity of the evidence acquired and prevent planting of evidence, the application of said Section resulted in the ineffectiveness of the government's campaign to stop increasing drug addiction and also, in the conflicting decisions of the courts." Specifically, she cited that "compliance with the rule on witnesses during the physical inventory is difficult. For one, media representatives are not always available in all corners of the Philippines, especially in more remote areas. For another, there were instances where elected barangay officials themselves were involved in the punishable acts apprehended." In addition, "[t]he requirement that inventory is required to be done in police station is also very limiting. Most police stations appeared to be far from locations where accused persons were apprehended."
Numerous drug trafficking activities can be traced to operations of highly organized and powerful local and international syndicates. The presence of such syndicates that have the resources and the capability to mount a counter-assault to apprehending law enforcers makes the requirement of Section 21(a) impracticable for law enforcers to comply with. It makes the place of seizure extremely unsafe for the proper inventory and photograph of seized illegal drugs.
Section 21(a) of RA 9165 needs to be amended to address the foregoing situation. We did not realize this in 2002 where the safety of the law enforcers and other persons required to be present in the inventory and photography of seized illegal drugs and the preservation of the very existence of seized illegal drugs itself are threatened by an immediate retaliatory action of drug syndicates at the place of seizure. The place where the seized drugs may be inventoried and photographed has to include a location where the seized drugs as well as the persons who are required to be present during the inventory and photograph are safe and secure from extreme danger.
It is proposed that the physical inventory and taking of photographs of seized illegal drugs be allowed to be conducted either in the place of seizure or at the nearest police station or office of the apprehending law enforcers. The proposal will provide effective measures to ensure the integrity of seized illegal drugs since a safe location makes it more probable for an inventory and photograph of seized illegal drugs to be properly conducted, thereby reducing the incidents of dismissal of drug cases due to technicalities.
Non-observance of the prescribed procedures should not automatically mean that the seizure or confiscation is invalid or illegal, as long as the law enforcement officers could justify the same and could prove that the integrity and the evidentiary value of the seized items are not tainted. This is the effect of the inclusion in the proposal to amend the phrase "justifiable grounds." There are instances wherein there are no media people or representatives from the DOJ available and the absence of these witnesses should not automatically invalidate the drug operation conducted. Even the presence of a public local elected official also is sometimes impossible especially if the elected official is afraid or scared.
The Court, however, clarified that under varied field conditions, strict compliance with the requirements of Section 21 of RA 9165 may not always be possible. In fact, the Implementing Rules and Regulations (IRR) of RA 9165 - which is now crystallized into statutory law with the passage of RA 10640 - provide that the said inventory and photography may be conducted at the nearest police station or office of the apprehending team in instances of warrantless seizure, and that non-compliance with the requirements of Section 21 of RA 9165 - under justifiable grounds - will not render void and invalid the seizure and custody over the seized items so long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer or team. Tersely put, the failure of the apprehending team to strictly comply with the procedure laid out in Section 21 of RA 9165 and the IRR does not ipso facto render the seizure and custody over the items as void and invalid, provided that the prosecution satisfactorily proves that: (a) there is justifiable ground for noncompliance; and (b) the integrity and evidentiary value of the seized items are properly preserved. In People v. Almorfe, the Court stressed that for the above-saving clause to apply, the prosecution must explain the reasons behind the procedural lapses, and that the integrity and value of the seized evidence had nonetheless been preserved. Also, in People v. De Guzman, it was emphasized that the justifiable ground for non-compliance must be proven as a fact, because the Court cannot presume what these grounds are or that they even exist.
Under the original provision of Section 21, after seizure and confiscation of the drugs, the apprehending team was required to immediately conduct a physically inventory and photograph of the same in the presence of (1) the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, (2) a representative from the media and (3) the DOJ, and (4) any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. It is assumed that the presence of these three persons will guarantee "against planting of evidence and frame up," i.e., they are "necessary to insulate the apprehension and incrimination proceedings from any taint of illegitimacy or irregularity." Now, the amendatory law mandates that the conduct of physical inventory and photograph of the seized items must be in the presence of (1) the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, (2) with an elected public official, and (3) a representative of the National Prosecution Service or the media who shall sign the copies of the inventory and be given a copy thereof.
In this case, the absence of a representative of the National Prosecution Service or the media during the inventory of the seized items was not justifiably explained by the prosecution. A review of the Transcript of Stenographic Notes does not yield any testimony from the arresting officers as to the reason why there was no representative from the DOJ or the media. The only one present to witness the inventory and the marking was an elected official, Barangay Captain Evelyn Villamor. Neither was there any testimony to show that any attempt was made to secure the presence of the required witness.
x x x It must be emphasized that the prosecution must able to prove a justifiable ground in omitting certain requirements provided in Sec. 21 such as, but not limited to the following: 1) media representatives are not available at that time or that the police operatives had no time to alert the media due to the immediacy of the operation they were about to undertake, especially if it is done in more remote areas; 2) the police operatives, with the same reason, failed to find an available representative of the National Prosecution Service; 3) the police officers, due to time constraints brought about by the urgency of the operation to be undertaken and in order to comply with the provisions of Article 125 of the Revised Penal Code in the timely delivery of prisoners, were not able to comply with all the requisites set forth in Section 21 of R.A. 9165.
The prosecution never alleged and proved that the presence of the required witnesses was not obtained for any of the following reasons, such as: (1) their attendance was impossible because the place of arrest was a remote area;·(2) their safety during the inventory and photograph of the seized drugs was threatened by an immediate retaliatory action of the accused or any person/s acting for and in his/her behalf; (3) the elected official themselves were involved in the punishable acts sought to be apprehended; (4) earnest efforts to secure the presence of a DOJ or media representative and elected public official within the period required under Article 125 of the Revised Penal Could prove futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or (5) time constraints and urgency of the anti-drug operations, which often rely on tips of confidential assets, prevented the law enforcers from obtaining the presence of the required witnesses even before the offenders could escape.
Certainly, the prosecution bears the burden of proof to show valid cause for non-compliance with the procedure laid down in Section 21 of R.A. No. 9165, as amended. It has the positive duty to demonstrate observance thereto in such a way that, during the proceedings before the trial court, it must initiate in acknowledging and justifying any perceived deviations from the requirements of the law. Its failure to follow the mandated procedure must be adequately explained and must be proven as a fact in accordance with the rules on evidence. The rules require that the apprehending officers do not simply mention a justifiable ground, but also clearly state this ground in their sworn affidavit, coupled with a statement on the steps they took to preserve the integrity of the seized item. A stricter adherence to Section 21 is required where the quantity of illegal drugs seized is miniscule since it is highly susceptible to planting, tampering, or alteration.
Thus, this Court finds it appropriate to acquit the appellants in this case as their guilt has not been established beyond reasonable doubt. The resolution of the other issues raised by appellants is no longer necessary.
WHEREFORE, premises considered, the Decision dated May 31, 2017 of the Court of Appeals in CA-G.R. CR-HC No. 08121 dismissing appellants' appeai and affirming the Decision dated October 28, 2015 of the Regional Trial Court, Branch 65, Makati City is REVERSED AND SET ASIDE. Appellants Emmanuel Oliva y Jorjil, Bernardo Barangot y Pilais, Mark Angelo Manalastas y Gapasin are ACQUITTED for failure of the prosecution to prove their guilt beyond reasonable doubt. They are ORDERED IMMEDIATELY RELEASED from detention, unless they are confined for any other lawful cause. Let entry of final judgment be issued immediately.
Let a copy of this Decision be furnished to the Director of the Bureau of Corrections and the Superintendent of the New Bilibid Prisons, for immediate implementation. Said Director and Superintendent are ORDERED to REPORT to this Court within five (5) working days from receipt of this Decision the action he/she has taken.
Leonen, Hernando, and Carandang,* JJ., concur.
A. Reyes, Jr., JJ., on leave.
Please take notice that on January 7, 2019 a Decision, copy attached hereto, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on January 15, 2019 at 3:08 p.m.
"WHEREFORE, premises considered, the Decision dated May 31, 2017 of the Court of Appeals in CA-G.R. CR-HC No. 08121 dismissing appellant appeal and affirming the Decision dated October 28, 2015 of the Regional Trial Court, Branch 65, Makati City is REVERSED and SET ASIDE. Appellants Emmanuel Oliva y Jorjil, Bernardo Barangot y Pilais, Mark Angelo Manalastas y Gapasin are ACQUITTED for failure of the prosecution to prove their guilt beyond reasonable doubt. They are ORDERED IMMEDIATELY RELEASED from detention, unless they are confined for any other lawful cause. Let entry of judgment be issued immediately.
NOW, THEREFORE, You are hereby ordered to immediately release EMMANUEL OLIVA y JORJIL, BERNARDO BARANGOT y PILAIS and MARK ANGELO MANALASTAS y GAPASIN unless there are other lawful causes for which they should be further detained, and to return this Order with the certificate of your proceedings within five (5) days from notice hereof.
GIVEN by the Honorable DIOSDADO M. PERALTA, Chairperson of the Third Division of the Supreme Court of the Philippines, this 7th day of January 2019.
* Designated Additional Member per Special Order No. 2624 dated November 28, 2018.
 Penned by Associate Justice Danton Q. Bueser with Associate Justices Apolinario D. Bruselas, Jr. and Marie Christine Azcarraga-Jacob concurring; rollo, pp. 2-14.
 Penned by Presiding Judge Edgardo M. Caldona; CA rollo, pp. 17-25.
 People v. Ismael, G.R. No. 208093, February 20, 2017, 818 SCRA 122, 131-132.
 699 Phil. 240, 252 (2011).
 People v. Mirondo, 771 Phil. 345, 356-357 (2015).
 See People v. Ismael, supra note 10, at 132.
 AN ACT TO FURTHER STRENGTHEN THE ANTI-DRUG CAMPAIGN OF THE GOVERNMENT, AMENDING FOR THE PURPOSE SECTION 21 OF REPUBLIC ACT NO. 9165, OTHERWISE KNOWN AS THE "COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002."
 Senate Journal. Session No. 80, 16th Congress, 1st Regular Session, June 4, 2014, p. 348.
 G.R. No. 229671, January 31, 2018.
 See also People v. Paz, G.R. No. 229512, January 31, 2018; People v. Mamangon, G.R. No. 229102, January 29, 2018; People v. Jugo, G.R. No. 231792, January 29, 2018; People v. Calibod, G.R. No. 230230, November 20, 2017: People v. Ching, G.R. No. 223556, October 9, 2017; People v. Geronimo, G.R. No. 225500, September 11, 2017; People v. Ceralde, G.R. No. 228894, August 7, 2017; and People v. Macapundag, G.R. No. 225965, March 13, 2017, 820 SCRA 204.
 People v. Sagana, G.R. No. 208471, August 2, 2017.
 G.R. No. 219953, April 23, 2018.
 Article 125. Delay in the delivery of detained persons to the proper judicial authorities. - The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty·six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent. In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon his request, to communicate and confer at any time with his attorney or counsel. (As amended by E.O. Nos. 59 and 272, Nov. 7, 1986 and July 25, 1987, respectively).
 G.R. No. 224290, June 11, 2018.
 See People v. Macapundag, supra note 16, at 214.
 See People v. Miranda, G.R. No. 229671, January 31, 2018; People v. Paz, G.R. No. 229512, January 31, 2018; People v. Mamangon, G.R. No. 229102, January 29, 2018; and People v. Jugo, G.R. No. 231792, January 29, 2018.
 People v. Saragena, G.R. No. 210677, August 23, 2017.
 See People v. Abelarde, G.R. No. 215713, January 22, 2018; People v. Macud, G.R. No. 219175, December 14, 2017; People v. Arposeple, G.R. No. 205787, November 22, 2017; Aparente v. People, G.R. No. 205695, September 27, 2017; People v. Cabellon, G.R. No. 207229, September 20, 2017; People v. Saragena, G.R. No. 210677, August 23, 2017; People v. Saunar, G.R. No. 207396, August 9, 2017; People v. Sagana, G.R. No. 208471, August 2, 2017; People v. Segundo, G.R. No. 205614, July 26, 2017; and People v. Jaafar, G.R. No. 219829, January 18, 2017, 815 SCRA 19, 33.

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