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November 13th, 2013 Arbitration Agreements, Arbitration Practice and Procedure, Authority of Arbitrators, Awards, General, Grounds for Vacatur, Practice and Procedure, Small Business B-2-B Arbitration, United States Supreme Court Comments Off on Improving Arbitration-Award Making and Enforcement by Faithfully Implementing the Purposes and Objectives of the Federal Arbitration Act By Philip J. Loree Jr.
In Part I we argued that improving arbitration in general—and the award making and enforcement process in particular—requires persons with a stake in arbitration’s success to adjust how they think about arbitration. We also argued that the purposes and objectives of the Federal Arbitration Act (the “FAA”) provide a relatively simple analytical framework which, if consistently and properly applied, can help persons with a stake in arbitration’s continued success make decisions that should help facilitate the achievement of that goal.
This Part II discusses that analytical framework, which is based on United States Supreme Court interpretations of the FAA and its purposes and objectives. It posits that arbitration’s improvement and continued success as a dispute resolution mechanism for a broad range of disputes depends on it being an attractive alternative to litigation, and that arbitration can remain such an attractive alternative for a broad range of disputes only if courts, arbitrators, and parties fully and forthrightly accept that arbitration is a matter of contract, and that the awards that it yields should be freely and summarily enforced, provided that they represent a legitimate product of the agreement to arbitrate.
There is, of course, nothing particularly controversial about this principle, judicial support for it can be traced back many decades, and in most cases, it guides the outcome of FAA-governed award enforcement proceedings. But, as we shall discuss in future segments, courts, arbitrators and parties not infrequently honor it in its breach, and that not only creates problems for arbitration, but subverts the purposes and objectives of the FAA. And as respects arbitrators and parties in particular, adhering strictly to the letter—rather than the spirit—of the principle can undermine arbitration’s continued success, even where the result is an award that passes (however barely) the necessarily-not-very-demanding requisites for judicial enforcement of FAA-governed awards.
This Part II analyzes the legal basis of the consent-based analytical framework for the making and enforcement of arbitration awards. Future segments shall discuss how it can better guide the decision-making of courts, arbitrators and parties in the award making and enforcement process.
The purposes and objectives of the FAA are the same whether the question is whether arbitration should be compelled, litigation should be stayed or an award confirmed or vacated. The cornerstone of the FAA is the enforcement mandate of Section 2, which says: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Section 2 establishes federal substantive law mandating that arbitration agreements be placed on an “equal footing” with other contracts. The other provisions of the FAA implement Section 2’s enforcement command.
The Supreme Court in AT&T Mobility LLC v. Concepcion recently explained that the objective of the FAA is to “promote arbitration.” The Court did not say that the FAA was supposed to promote arbitration for arbitration’s own sake or simply to promote the rigorous enforcement of arbitration agreements according to their terms. The Court’s point was that the FAA “promote[s] arbitration” by lending judicial support and assistance to an alternative to litigation that is party driven and more cost-effective, less time consuming, less formal, and more confidential than litigation, and which offers the added benefit of party autonomy, including the right to specify the substantive and procedural rules of decision and the opportunity to select specialized decision makers to decide particular disputes.
The Court was not suggesting that the FAA “promotes” arbitration simply because arbitration is – or at least can be – a more party-friendly way of resolving disputes, or because arbitration is somehow inherently superior to court adjudication. What it meant was that the FAA should be interpreted to encourage parties to agree to it, and thus opt out of the court system.
Though courts only rarely acknowledge it expressly, the reason the Supreme Court, most or all other federal courts, and probably the vast majority of state courts want to encourage parties to arbitrate their disputes is pragmatic and based on simple economics. For many decades, state and federal courts have been overburdened by the number of criminal and civil cases they must hear. That imposes significant costs not only on the courts themselves, but on private and public litigants – who suffer from delays and other resulting inefficiencies – and on the tax payers who foot the bill. Arbitration mitigates some of these burdens and costs by shifting them to private sector, and thus is beneficial not only to the court system, but to the public at large.
The FAA effectively offers to prospective court litigants a bargain of sorts. In exchange for opting out of the court system, the courts will enforce arbitration agreements in a way that should allow litigants to benefit from some of the advantages that arbitration can have over litigation—speed, cost-efficiency, informality, party autonomy, confidentiality, specialist decision makers, party autonomy and the like—provided that those who agree to arbitrate are willing to trade off some of the potential advantages that litigation has to offer—intensive procedural protections, strict application of the rules of law and evidence, broader subpoena powers, pristine decision-maker neutrality, joinder, coercive power over attorneys, self-executing contempt power over persons within the court’s personal jurisdiction irrespective of their status as parties, impleader, appellate review and so on.
The required trade-off is not intended to punish or discourage persons who agree to arbitrate; without it arbitration would be a decidedly more time consuming and costly way of resolving disputes. Even though that might benefit some parties in the context of certain specific disputes, it would almost always disadvantage at least one of the parties. It would also deprive the courts and the general public of the arbitration’s benefit of shifting dispute resolution costs to the private sector and would probably increase those costs by exponentially proliferating judicial proceedings and appeals and forcing the courts to become deeply embroiled in disputes that were supposed to be finally decided by private decision makers. The whole point of any privatization scheme is to reduce overall costs through efficient allocation of resources, not to increase them by inefficient allocation.
The extent of the trade-off exacted from parties who agree to arbitrate must therefore be sufficient to ensure that judicial involvement in the arbitration process does not defeat the purposes and objectives of promoting arbitration. But the extent of the tradeoffs should never exceed that necessary to avoid defeating those purposes and objectives.
Arbitration can provide benefits to the parties that opt for it, but the risk-benefit ratio is probably in most cases relatively high, all other things being equal. If the risk-benefit ratio is perceived as too high, then arbitration will tend to be perceived as too risky and fewer persons will agree to it.
Since the purpose of the FAA is to enforce arbitration agreements to serve the objective of promoting arbitration, arbitration agreements should not be “enforced” in a way that discourages arbitration by making it more risky than it has to be. Enforcement of arbitration agreements in a way consistent with the FAA thus requires some careful balancing to ensure that courts do not, under the guise of enforcement, force parties to assume arbitration-related risks that they did not expressly or impliedly agree to accept, and which need not be imposed upon them as a matter of law to avoid undue interference with the FAA’s objective of promoting arbitration.
How do the Award Enforcement Provisions of the FAA Promote Arbitration?
The FAA provisions governing the confirmation and vacatur of arbitration awards are designed to enforce arbitration agreements in a way that attempts to ensure that the parties not only bear the risks necessary for the FAA to meet its objective, but also to allow arbitration users to realize the benefits of agreeing to arbitrate. For our purposes, the pertinent provisions are Section 9—which governs confirmation of awards (i.e., entry of judgment upon them)—and Section 10—which authorizes courts to vacate awards (i.e., declare them to have no legal effect).
Like most other issues arising under the FAA, whether a court should confirm an award depends on what the parties agreed. Section 9 of the FAA, which governs confirmation of arbitration awards, says—with bracketed lettering added: “[A] If the parties in their agreement have [B] agreed that a judgment of the court shall be entered upon the [C] award made pursuant to the arbitration, and shall [D] specify the court, then [E] at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless [F] the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.” Items [A] through [D] above each concern party consent as evidenced by the arbitration agreement or submission.
Section 10(a)(2) establishes that parties who agree to arbitrate can legitimately expect that none of the arbitrators who will decide their disputes will be “guilty of corruption,” and that at least the neutral arbitrators will not be “guilty” of “evident partiality,” that is, they will meet certain minimum standards of arbitral impartiality.
It is tempting to think that courts are engaged in judicial review of arbitration awards under the Federal Arbitration Act, but they are not. When parties agree to arbitrate their disputes they opt out of the court system, and when one of them challenges the resulting arbitration award he perforce does so not on the ground that the arbitrators made a mistake but that they violated the agreement to arbitrate, as by corruption, evident partiality, exceeding their powers, etc.—conduct to which the parties did not consent when they included an arbitration clause in their contract.
Section 10 thus implements the enforcement purpose of the FAA. Parties who agree to arbitrate must sacrifice much in the way of procedural protection, and assume the risk that the arbitrators may make even egregious errors of law, fact and contract interpretation. That is part of the arbitration bargain, which Section 10 enforces by strictly limiting the nature and scope of arbitration award challenges.
Section 10 also enforces arbitration agreements by authorizing vacatur where enforcing the award would violate the arbitration agreement—including the baseline requirements of fundamental fairness Sections 10(a)(1)-(a)(3) imply into every arbitration agreement— or otherwise sanction an exercise of arbitral power to which the parties did not consent. It provides the parties with at least some assurance that the end product of an arbitration agreement will be a matter of consent, not coercion.
Without at least that modest degree of protection, arbitration would be a far less attractive an alternative to litigation than it was intended to be. Just as few would likely agree to arbitrate if its legitimate result could not be readily—and, if necessary, coercively—enforced, so too would few agree to arbitrate if there were in place no check against material violations of arbitration agreements or the risk that an award was otherwise not grounded in party consent.
Unfortunately, the purposes and objectives of the award-enforcement provisions of the FAA are, from time-to-time, lost on, or overlooked by, arbitrators, judges, parties and counsel. That can cause unnecessary problems for arbitration, undermining its ability to serve as an attractive and effective alternative to litigation. It is to some of those problems—and some straightforward solutions—that in future posts we will next turn.
AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1745-46 (2011); Buckeye Check Cashing Co. v. Cardegna, 546 U.S. 440, 447 (2006).
See, generally, Buckeye, 546 U.S. at 447 (doctrine of severability, although based on language of Section 4, “ultimately arises out of § 2,” and “establishes how [Section 2’s] equal-footing guarantee is to be implemented”); Arthur Andersen LLP v. Carlisle, 556 U.S. 624,129 S.Ct. 1896, 1901-02 (2009) (explaining relationship between FAA Section 2 and FAA Section 3).
Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758, 1773 (2010) (quotation omitted); Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57, 58 (1995); Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 688 (1996); see, generally, 9 U.S.C. § 4 (“The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement”) (emphasis added)).
Stolt-Nielsen, 130 S. Ct. at 1773, 1773-75 (citations and quotation omitted).
First Options of Chicago v. Kaplan, 514 U.S. 938, 943 (1995) (emphasis in original).
Stolt-Nielsen, 130 S. Ct. at 1773-74 (citation and quotation omitted).
131 S. Ct. 1740 (2011).
AT&T Mobility, 131 S. Ct. at 1749.
131 S. Ct. at 1748-53.
 See, e.g., Roughneck Concrete Drilling & Sawing Co. v. Plumbers’ Pension Fund, 640 F.3d 761, 765 (7th Cir. 2011) (“[The law’s bias in favor of arbitration . . . seems largely motivated by a desire to limit judicial workloads. Why otherwise prefer nonjudicial to judicial dispute resolution processes?”) (Posner, J.); AIG Baker Sterling Heights, LLC v. America Multi-Cinema, Inc., 508 F.3d 995, 1001 (11th Cir. 2007) (“purpose of the Federal Arbitration Act” is “to relieve congestion in the courts and to provide parties with an alternative method for dispute resolution that is speedier and less costly than litigation.”) (quotation and citation omitted); Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1384 (6th Cir. 1995) (“Arbitration lightens courts’ workloads, and it usually results in a speedier resolution of controversies.”) (quotation and citation omitted).
See 131 S. Ct. at 1749.
131 S. Ct. at 1749, 1753.
9 U.S.C. §§ 9, 10.
Wise v. Wachovia Securities, LLC, 450 F. 3d 265, 269 (7th Cir. 2006) (Posner, J.).
Tags: Arbitration Benefits, Arbitration Risks, Arbitration Tradeoffs, Arthur Andersen LLP v. Carlisle, Associate Justice Antonin Scalia, AT&T Mobility LLC v. Concepcion, Buckeye Check Cashing v. Cardegna, Circuit Judge Richard A. Posner, Confirmation of Awards, Consent not Coercion, Consent-Based Framework for Enforcing Awards, Contractual Rights and Expectations, Discouraging Arbitration, Doctor's Associates Inc. v. Casarotto, Encouraging Arbitration, Enforcement of Awards, Enforcing Arbitration Agreements, Exceeded Powers, FAA, FAA Section 10, FAA Section 2, FAA Section 4, FAA Section 9, Federal Arbitration Act, First Options of Chicago v. Kaplan, Implied Expectations of Fundamental Fairness, Mastrobuono v. Shearson Lehman Hutton Inc., Overburdened Judiciary, Private Sector Dispute Resolution Costs, Promoting Arbitration, Public Sector Dispute Resolution Costs, Purposes and Objectives of the FAA, Roughneck Concrete Drilling v. Plumbers' Pension Fund, Stolt-Nielsen S.A. v. AnimalFeeds, United States Supreme Court, Vacatur of Awards, Wise v. Wachovia Sec.
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���� �ǽ�û�ο� ���� ���ﵵ�����̸��� ��� �� ����� ���� ��4�� (a)���� �����ϴ� ������ ������ ���̶� �Ǵܵȴ�.
������ ������ �ٿ� ����, �� �����г��� ���� ��4�� (i)�� �� ������Ģ ��15���� ����, ��û���� ��û�� ���� <nbcuniversal.com>�� NBC Universal, Inc. �� Universal City Studios LLLP���� ������ ���� �����Ѵ�.
On September 23, 2004, the Registrar advised the Center that the language of the registration agreement was Korean. The Complainant had alleged in its complaint that English was the language of the agreement. This was a reasonable assumption since (a) the Registrar��s form of agreement was posted on the Registrar��s website in the English language and (b) there is nothing in that agreement which requires use of any other language by a registrant.
Despite representations to the contrary from the Complainant��s lawyers, the Center required the Complainant to have the Complainant translated into Korean following the registrar��s confirmation that the language of the domain name registration agreement selected by the Respondent was Korean and the Respondent��s communication by e-mail that he does not consent to English as the language of the proceedings. Despite being served with a Korean version of the complaint the Respondent filed no response.
I was chosen as a Panelist by the Center from a list of three provided by the Complainant pursuant to Paragraph 7 of the UDRP Rules. The others were well-known Panelists from the United Kingdom and the United States. I doubt whether either of the other nominees would speak or read Korean. I am certainly unable to do so. It was reasonable, in my view, for the Complainant, when seeking a three-member panel, to nominate three English-speaking Panelists.
Under Paragraph 11 of the UDRP Rules, the language of the administrative proceedings, absent agreement by the parties, is that of the registration agreement, unless the Panel decides otherwise.
I respectfully disagree with the opinion of the majority that Korean should be the language of the proceedings. In my view there are the following reasons that require English.
(a) The Respondent demonstrated some facility with the English language in his email communications to the Center.
(b) The disputed domain name includes a word in the English language (universal) and clearly relates to companies in an English-speaking country.
(c) The content on the Respondent��s website is in English and shows that he may communicate his views in that language.
(d) The fact that the Respondent has filed no response even to the Korean complaint.
Numerous WIPO decisions indicate that the intention of Paragraph 11 is to ensure fairness in the selection of language, the expenses to be incurred and the delay caused by translations.
��Thus the general rule is that the parties are at liberty to agree on the language of the administrative proceeding. In the absence of this agreement, the language of the Registration Agreement shall dictate the language of the proceeding. However, the Panel reserves the right to decide otherwise having regard to the circumstances of the case. The Panel��s discretion must be exercised in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs. It is important that the language finally decided by the Panel for the proceeding must not be prejudicial to either of the parties in his or her abilities to articulate the arguments for the case.
The above case is different from the present in that the Respondent there, unlike here, made no representation on the question of language of the proceedings. I agree with the Panelist about the relevance of the language of the website in deciding the language of the proceeding and also with the consideration of extra cost imposed on a Complainant in having to have translations made.
A case where the registration agreement was in Korean but where the parties had corresponded in English with the Respondent demonstrating an ability to understand and communicate in English, is Deutsche Messe AG v. Kim Hyungho, WIPO Case No. D2003-0679. There the Panel determined that English be the language of the proceeding on condition that the Respondent be permitted to submit documents and submissions in Korean. There was, also in that case, a small website in English using the disputed domain name.
A case where the complaint (as here) was originally prepared in English but filed in Korean is Amazon.com v. Kim Yoon-Jo, WIPO Case No. D2003-0774. There the Respondent filed no Response and the Complainant was not able to communicate in Korean. In the interests of fairness, the three-member Panel decided that English should be the language of the proceedings and not Korean, the language of the registration agreement. The Panel nevertheless considered any Korean documents submitted by the Respondent.
��The complaint was filed in the English language. The Respondent asserts that all document in this dispute resolution proceeding should be filed in the Korean language, which was the language of the registration agreement for the Domain Name, whereas the Complainant asserts that English should be the language of the proceeding.
According to Paragraph 11 of the Rules, the language of the administrative proceeding shall be the language of the registration agreement unless the Panel decides otherwise. The spirit of Paragraph 11 is to ensure fairness in the selection of language by giving full consideration to the parties�� level of comfort with each language, the expenses to be incurred and the possibility of delay in the proceeding in the event translations are required and other relevant factors.
All these previous WIPO decisions, in this Panelist��s view, favour English as the language of the proceedings in the present case.
I agree with the majority that the complaint be allowed and transfer of the Disputed Domain Name ordered. I have been supplied with a translation of the operative part of the decision by the Presiding Panelist and I agree with it.
The Disputed Domain Name is confusingly similar to the Complainant��s marks. The Respondent has no rights or legitimate interests. The registration was made and continues in bad faith.
- London Metal Exchange Limited v. Syed Hussain, WIPO Case No. D2000-1388.

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In D’Agostino v. Mastercard International, Inc., [2016-1592, 2016-1593] (December 22, 2016), the Federal Circuit vacated the PTAB’s decision in two inter partes reviews that the challenged claims in U.S. Patent Nos. 7,840,486 and 8,036,988 were unpatentable for anticipation and obviousness, because the decisions rested on unreasonable claim constructions.
The Federal Circuit the found that the Board either departed from or misapplied the clear meaning when of the claim, whether as a matter of claim construction or as a matter of application to the prior art, when it concluded that the claim covers a situation in which the customer first seeks a transaction code for an identified “chain of stores” and, later, picks a specific store within that chain. The Federal Circuit found that this was contrary to the requirement that at the time the transaction code is requested, the request does not identify the merchant. The only way the Board could be correct was if “single merchant” and “particular merchant” had different meanings, which under the circumstance was not correct.
In U.S. Water Services, Inc., v. Novozymes A/S, [2015-1950, 2015-1967] (December 15, 2016), the Federal Circuit vacated summary judgment of anticipation, and affirmed the denial of summary judgment of no inequitable conduct.
The patents relate to methods of reducing fouling in fermentation equipment through the use of phytase. The district court found the claims inherently anticipated. The Federal Circuit cautioned that inherency may not be established by probabilities or possibilities, and said that the mere fact that a certain thing may result from a given set of circumstances is not sufficient. The inherent result must inevitably result from the disclosed steps.
While the prior art disclosed the use of phytase in fermentation, the Federal Circuit found that the district court erred in finding no genuine dispute of material fact as to whether the patents-in-suit were inherently anticipated because the prior art discloses the conditions that will necessarily result in phytase reducing deposits. In particular the district court erred in deeming irrelevant evidence that practicing the prior art will not always result in deposit reduction. The Federal Circuit found a genuine dispute as to a material fact remained and that, consequently, the district court improperly granted summary judgment on inherent anticipation.
or omissions material to patentability, that he did sowith the specific intent to mislead or deceive the USPTO, and that deceptive intent was the single most reasonable inference to be drawn from the evidence. The Federal Circuit found no genuine dispute about this material fact. The Federal Circuit found that the record contains no suggestion that, but-for the disclosures the examiner would not have issued the patents-in-suit.
In United Construction Products, Inc., v. Tile Tech, Inc., [2016-1392] (December 15, 2016), the Federal Circuit affirmed default judgment against Tile Tech on claims of patent infringement and unfair competition because of its counsel near complete failure to provide discovery.
defense counsel perhaps handled the case unreasonably, this [c]ourt does not attribute that to bad faith, but instead a complete lack of preparation.” However, the Federal Circuit said that willfulness and bad faith were not the only justifications for entering default, which also include “fault.” While Tile Tech has argued that its trial attorney had “unfamiliarity” with federal court practice, it has not offered any evidence to suggest that its dilatory actions were outside of its attorney’s control.
In Power Integrations, Inc., v. Fairchild Semiconductor International, Inc, [2015-1329, 2015-1388] (December 12, 2016), a complicated action where each party claimed the other directly and indirectly infringed its patents, the Federal Circuit: affirmed the jury’s verdict that the asserted claims of the ’876 patent were not anticipated; vacated the jury’s verdict that Fairchild induced infringement of the asserted claims of the ’876 and ’851 patents; reversed the jury’s verdict that the asserted claims of the ’605 patent were not anticipated; and affirmed the district court’s construction of the ’972 patent.
complete judgment should be rendered by the court.
The Federal Circuit agreed with Power Integrations that a finding of infringement under the doctrine of equivalents would vitiate the requirement that the claimed feedback signals be “distinct.” The Federal Circuit explained that the inventor of the ’972 patent detailed at trial the difficulty in designing a power supply with accurate primary-side control and the breakthrough he achieved by adding a second feedback signal specifically related to output current. The inventor went on to testify that having a second feedback signal—related to current—that is distinct from the first feedback signal—related to voltage—is what distinguished the claimed invention from the prior art.
Under these circumstances, allowing the doctrine of equivalents to read out the claim requirement for a second feedback signal in order to cover a system with a single feedback signal would impermissibly vitiate the claim element.
In Power Integrations, Inc., v. Fairchild Semiconductor International, Inc., [2015-1329, 2015-1388] (December 12, 2016), a complicated action where each party claimed the other directly and indirectly infringed its patents, the Federal Circuit affirmed the jury’s verdict that the asserted claims of the ’876 patent were not anticipated; vacated the jury’s verdict that Fairchild induced infringement of the asserted claims of the ’876 and ’851 patents; reversed the jury’s verdict that the asserted claims of the ’605 patent were not anticipated; and affirmed the district court’s construction of the ’972 patent.
Each party alleges that the other is liable for infringement by actively inducing others to directly infringe the patents in suit. The direct infringement may either be literal or under the doctrine of equivalents. A party induces patent infringement if it purposefully causes, urges, or encourages another to use a product in a manner that infringes an asserted claim. Inducing infringement cannot occur unintentionally.
use by others of the party’s product infringes one or more of the asserted claims of the patent.
In order to establish active inducement of infringement, it is not sufficient that others directly infringe the claim. Nor is it sufficient that the party accused of infringement was aware of the acts by others that directly infringe. Rather, in order to find inducement, you must find that the party accused of infringement intended others to use its products in at least some ways that would infringe the asserted claims of the patent. However, that infringement need not have been actually caused by the party’s actions. All that is required is that the party took steps to encourage or assist that infringement, regardless of whether that encouragement succeeded, or was even received.
Intent to encourage or assist the acts that constitute direct infringement must be proven by evidence of active steps taken to encourage direct infringement, such as providing products, advertising any infringing use, or instructing how to engage in any use that is infringing. Proof of intent to induce infringement may be based on circumstantial evidence, rather than direct evidence.
The Federal Circuit said that this instruction left the jury with the incorrect understanding that a party may be liable for induced infringement even where it does not successfully communicate with and induce a third-party direct infringer. The Federal Circuit said that the Supreme Court in Global-Tech Appliances explained that the term “induce” as it is used in § 271(b) “means ‘[t]o lean on; to influence; to prevail on; to move by persuasion.” Each definition requires successful communication between the alleged inducer and the third-party direct infringer.
The Federal Circuit noted that in Dynacore Holdings it held that “[t]o prevail under a theory of indirect infringement, [plaintiff] must first prove that the defendants’ actions led to direct infringement of the [patent-in-suit].” And that in DSU Med. Corp. it held that the plaintiff has the burden of showing that the alleged infringer’s actions induced infringing acts, The Federal Circuit concluded that under this precedent, a finding of induced infringement requires actual inducement, although this inducement may be proven via circumstantial evidence.
In other words, liability for inducement requires proof that (1) a third party directly infringed the asserted claims of the patent; (2) the defendant induced those infringing acts; and (3) defendant knew the acts it induced constituted infringement.
In re Nuvasive, Inc., [2015-1670] (December 7, 2016), the Federal Circuit vacated and remanded the PTAB Decision finding claims of U.S. Patent No. 8,361,156 invalid for obviousness. The Federal Circuit found that Nuvasive waived its argument that asserted references weren’t sufficiently public to qualify as printed publications. However, the on issue of obviousness, the Federal Circuit Federal Circuit sided with Nuvasive.
whether a PHOSITA would have been motivated to combine the prior art to achieve the claimed invention.” The Federal Circuit said that the factual inquiry whether to combine references must be “thorough and searching,” and that the need for specificity pervades its authority on the PTAB’s findings on motivation to combine.
findings.” . . . Second, the PTAB “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” The Federal Circuit said that the PTAB must provide “a reasoned basis for the agency’s action,” and it will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.
summarize and reject arguments without explaining why the PTAB accepts the prevailing argument. Third although reliance on common sense may be appropriate in some circumstances, the PTAB cannot rely solely on common knowledge or common sense to support its findings.
Turning to the decision before it, the Federal Circuit said that the PTAB failed to explain the reason why a PHOSITA would have been motivated to modify the prior art. While the PTAB rejected Nuvasive’s arguments that the invention was not obvious, the PTAB never actually made an explanation-supported finding that the evidence affirmatively proved that the PHOSITA would modify the prior art as proposed by petitioner.
vacated and the case remanded for additional PTAB findings and explanations regarding the PHOSITA’s motivation to combine the prior art references.
invalidity, and damages, but remanded as to the injunction insofar as it covered conduct of Cooler Master (who was not a party) that goes beyond abetting a new violation by CMI.
The district court granted the prevailing patent owner’s motion for an injunction against both CMI and Cooler Master, even though Cooler Master had dismissed as a party.
Cooler Master appealed the injunction, and rejoined as a party. Cooler Master argued that its dismissal with prejudice precluded the district court from subjecting Cooler Master to the injunction’s obligations, and that in any event the injunction is too broad in scope insofar as the injunction reaches Cooler Master’s conduct (sale, importation, etc., involving the products other than conduct that abets a new violation by CMI, the only party adjudicated liable for infringement.
Master were improper for reasons it could invoke if they were imposed through contempt.
The Federal Circuit rejected Cooler Master’s contention that it could not be enjoined because the dismissal with prejudice was an adjudication that has claim-preclusive effect. While the premise was correct, the “claim” covered by the dismissal, which concerned Cooler Master’s pre-dismissal conduct, which was different from the conduct subject to the injunction, which is Cooler Master’s future conduct.
on Cooler Master—it restricts conduct by Cooler Master that abets a new violation by CMI; but it also restricts conduct by Cooler Master that does not abet a new violation by CMI. The Federal Circuit found that there is a there is a current live dispute about the permissibility of barring Cooler Master from engaging in U.S.-focused activities involving the infringing products other than through CMI. The Federal Circuit did not think it advisable to resolve the issue of the proper scope of the injunction without a fuller picture of the facts described by the district court, so it remanded the case for further development of the record, while leaving the injunction intact.
In Samsung Electronics Co., Ltd. v. Apple Inc., 580 U.S. ____ (2016), the Supreme Court reversed the award of $399,000,000 for infringement of Apple’s design patents covering the iPhone (U.S. Patent Nos. D618677, D593087, and D604305).
Whoever during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, but not less than $250, recoverable in any United States district court having jurisdiction of the parties.
The Court of Appeals for the Federal Circuit identified the entire Samsung phone as the “article of manufacture” for purposes of calculating §289 damages because consumers could not separately purchase components of the smart phone. The Supreme Court, after looking up article of manufacture in the dictionary, concluded that an article of manufacture is broad enough to encompass both a product sold to a consumer, as well as a component of that product.
Finding that the Federal Circuit’s narrower reading of article of manufacture cannot be squared with the text of §289, the Supreme Court reversed the award, and remanded for determination of whether the relevant article of manufacture is the smartphone, or a particular component of the smartphone.
How these patents are treated on remand will be instructive on how design patents should be drafted going forward. There may be an advantage in drafting the application so that the “article of manufacture” is a comprehensive (and profitable) as possible.
The Federal Circuit’s docket is burgeoning with Patent Office appeals. Three years ago there were 118 appeals from the USPTO pending before the Federal Circuit, today there are 578. The bulk of this increase is due to appeals from the post grant procedures created by the AIA.
According to a recent post on the AIPLA website the Federal Circuit has decided 128 appeals of IPRs and CBMRs. 7 (5%) of these were dismissed, 101 (79%) of these were complete affirmances. In only 20 (21%) of these did the Federal Circuit reverse any aspect of the Board’s decision.


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Fore closure is the proceeding by which a mortgagor or other owner of an interest in the land is, upon his failure to comply with the stipulations of the mortgage or of the instrument secured thereby, deprived of his right to discharge the land from the lien of the mortgage. Though we speak of the foreclosure of a mortgage, what is really foreclosed is the right to redeem from the mortgage, that is, the right, by a belated performance of the obligation secured, to extinguish the lien of the mortgage.
105 S. C. 312, 89 S. E. 547; Ball v. Setzer, 33 W. Va. 444, 10 S. E. 798; White v. Polleys, 20 Wis 505.
32. Boone v. Clark, 129 III. 466, 5 L. R. A. 276, 21 N. E. 850; Detroit Sav. Bank v. Truesdail, 38 Mich. 430; Farwell v. Bigelow, 112 Mich. 285, 70 N. W. 285; Stern-berger v. Sussman, 69 N. J. Eq. 197, 60 Atl. 195, 85 N. J. Eq. 593. 98 Atl. 1087; French & Co. v. Halten-hoff, 73 Ore. 244, 144 Pac. 480; Mc-Ginnis Appeal, 16 Pa. St. 445; Hudkius v. Ward, 30 W. Va. 204, 8 Am. St. Rep. 22, 3 S. E. 600.
33. Ante Sec. 644, note 3.
34. Pendleton v. Rowe, 34 Cal. 149; Cumberland Island Co. v. Bunkley, 108 Ga. 756, 33 S. E. 183; Dorn v. Gender, 171 III. 362, 49 N. E. 492; Gassert v. Black, 18 Mont. 35, 44 Pac. 401; Ohio Cent R. Co. v. New York Cent. Trust Co., 133 U. S. 83, 33 L. Ed. 561.
35. Phillips v. Taylor, 96 Ala. 426, 11 So. 323; Clark v. Paddock, 24 Idaho, 142, 46 L. R. A. (N. S.) 475, 132 Pac. 795; Heath v. Hall, 60 III. 344; Brown v. McKay, 151 III. 315. 37 N. E. 1037; Buchanan v. Berkshire Life Ins. Co., 96 Ind. 510; Buffalo Center Land & Investment Co. v. Swigart, 176 Iowa, 422, 156 N. W. 701; Adams v. Essex, 1 Bibb (Ky.) 149. 4 Am. Dec. 623; Schooley v. Romain, 31 Md. 574, 100 Am. Dec. 87; Noell v Gaines, 68 Mo. 649; Fletcher v. Daugherty, 13 Neb. 224, 13 N. W. 207; Baldwin v. VanVorst, 10 N. J. Eq. 577; Noyes v. Anderson, 124 N. Y. 175, 21 Am. St. Rep. 657, 26 N. E. 316; Parker v. Banks. 79 N. C. 480; Bushfield v. Meyer. 10 Ohio St. 334; Flesher v. Hubbard, 37 Okla. 587, 132 Pac. 1080; Atkinson v. Walton, 162 Pa. St. 219, 29 Atl. 898. And the statute in a number of states expressly authorizes foreclosure for the whole on nonpayment of an installment. 1 Stimson's Am. St. Law. Sec. 1929.
36. Prince v. Mahin, - Fla.
- 74 So. 696; Gloding v. Implement & Hardware Co., 20 Idaho, 348, 118 Pac. 666; Brown v. McKay, 151 III. 315, 37 N. E. 1037: Buchanan v. Berkshire Life Ins. Co., 96 Ind. 910; Ogilvie v. Union Cent. Life Ins. Co., 171 Ky. 134, 188 S. W. 309; Dunton v. Sharpe. 70 Miss. 850, 12 So. 800;Lowen stein v. Phelan, 17 Neb. 429, 22 N. W. 561; Doolittle v. Nurnberg. 27 N. D. 521, 147 N. W. 400; Atkin son v. Walton, 162 Pa. St. 219, 29 Atl. 898; Lee v. Security Bank & Trust Co., 124 Tenn. 582, 139 S. W. 690; Musselman v. Knottingham. 77 Wash. 435, 137 Pac. 1012. Compare English v. Carney, 25 Mich. 178; Schoonmaker v. Taylor, 14 Wis. 313.
Chicago & V. R. R. Co. v. Fosdeck, 106 U. S. 47, 27 L. Ed. 47.
38. Philips v. Taylor. 96 Ala. 426, 11 So. 323; Hatcher v. Chan-cey, 71 Ga. 689; Morgernstern v. Klees, 30 III. 422; McCarthy v. Benedict. 89 Neb. 293. 131 N W. 598; Anderson v. Pilgram, 30 S. C. 499, 4 L. R. A. 205 14 Am. St. Rep. 917, 9 S. E. 587; Dupee v. Salt Lake Valley Loan & Trust Co.. 20 Utah, 103, 77 Am. St. Rep. 902, 57 Pac: 845.
39. Bennett v. Stevenson, 53 N. Y. 528; Hunt v. Keech, 3 Abb. Pr. (N. Y.) 204; Osborne v. Ketch-am, 76 Hun. (N. Y.) 325. 27 N. Y. Supp. 694; Serrell v. Rothstein, 49 N J. Eq. 385, 21 Atl. 369; Warwick Iron Co. v. Morton, 148 Pa.
St. 72, 23 Atl. 1065.
41. Atkinson v. Walton, 162 Pa. St. 219. 29 Atl. 898.
42. Wilcox v. Allen, 36 Mich. 160.
There may be, by express stipulation, a right to foreclose for the principal upon the mortgagor's failure to pay taxes on the land,46 or upon any other default by the mortgagor, as in the payment of insurance, which is calculated to affect the security.47 A demand of performance after such a default is not necessary before beginning suit to foreclose.48 But a performance, even after default, will usually prevent the subsequent institution of a suit to foreclose.49 And it has been held that when there was a reasonable effort to comply with a covenant to insure, and the debtor supposed that he had so complied, the principal should not be gage creditor. Moore v. Sargent, 112 Ind. 484, 14 N. E. 466. That tender of the amount overdue will prevent a declaration that the whole debt is due, sea Wolz v. Parker, 134 Mo. 458, 35 S. W. 1149.
44. Parker v. Olliver, 106 Ala. 549, 18 So. 40; Campbell v. West, 86 Cal. 197, 24 Pac. 1000; Moore v Sargent, 112 Ind. 484, 14 N. E. 466.
45. LaPlant v. Beechley, Iowa, - , 165 N. W. 1019.
46. Pope v. Durant, 26 Iowa, 233; Stanclift v. Norton, 11 Kan. 218; Union Central Life Ins. Co. v. Puckett, 97 Kan. 428, 155 Pac. 930; Condon v. Maynard, 71 Md. 601, 18 Atl. 957; Pearman v. Massachusetts Hospital Life Ins. Co., 206 Mass. 377, 92 N. E. 497; O'Connor v. Shipman, 48 How. Pr. (N. Y.) 126; Farmers' Security Bank of Park River, North Dakota v. Martin, 29 N. D. 269, L. R. A.
1915D, 432, 150 N. W. 572; Johnson v. Irwin, 16 Wash. 652, 48 Pac. 345.
47. Johnson v. Northern Minnesota Land & Investment Co., 168 Iowa, 340, 150 N. W. 596; Porter v. Schrall, 93 Kan. 297, 144 Pac. 216; First Nat. Bank of Strong-hurst, Illinois v. Kirby (Mo.), 175 S. W. 926; Churchill v. Meade, 88 Ore. 120, 171 Pac. 565.
48. Clemens v. Luce, 101 Cal. 432, 35 Pac. 1032; Ferris v. Spoon-er, 102 N. Y. 10, 5 N. E. 773.
49. Smalley v. Ranken, 85 Iowa, 612, 52 N. W. 507; Noyes v. Anderson, 124 N. Y. 175, 21 Am. St. Rep. 657, 26 N. E. 316; Ver Planck v. Godfrey, 42 N. Y. App. Div. 16, 58 N. Y. Supp. 784. A subsequent performance cannot affect the right to prosecute a proceeding for sale already instituted. Parker v. Olliver, 106 Ala. 549, 18 So. 40.

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circumference Strategy: Inquiry & discovery. Find the diameter or radius given the cumference of a circle. students will be able to:Understand and use the concept of circumference to solve problems. mastery learning Learning Styles: Learning centers. iv. iii. Estimate the value of π. Activities: i. flexible & open-minded Reflection: Notes: Theme / Learning Area: CIRCLES Page 1 of 1 . Teacher poses a few questions to students and discusses the questions with students Teacher concludes today’s lesson Language Focus: Circle. multiple skills. Derive the formula of the circumference of a circle. v. diligent & patient. diameter. cooperative learning Values: Cooperative. Solve problems involving circumference of circles. Teacher asks students to choose an object and measures its diameter and circumference. Find the circumference of a circle given its diameter or radius. Learning Outcomes: i.DAILY LESSON PLAN CLASS VENUE DATE TIME ATTENDANCE Theme / Learning Area: CIRCLES Learning Objectives: By the end of the lesson. ii. iii. radius. iv. ii. Teacher shows how estimate the value of π.
ii. iv. students will be able to:Understand and use the concept of arc to solve problems. moderate. constructivism. iv. arc. v. Teacher demonstrates on solving a few questions. angle Strategy: Learning to learn. lecture Values: Systematic. Activities: i. Teacher shows how to derive the formula of the length of arc. objective Reflection: Notes: Theme / Learning Area: CIRCLES Page 1 of 1 . Derive the formula of the length of an arc. Find the angle at the centre given the length of the arc and the radius. Learning Outcomes: i. Find the radius given the arc length and angle at the centre. iii. self study Learning Styles: Demonstration. Teacher asks students to copy a few questions from whiteboard and discusses it with students Teacher concludes today’s lesson Language Focus: Circumference. discussion. iii. ii. Find the arc length given the angle at the centre and radius.DAILY LESSON PLAN CLASS VENUE DATE TIME ATTENDANCE Learning Objectives: By the end of the lesson. Solve problems involving arcs of a circle.
mentorship. v. students will be able to:Understand and use the concept of area to solve problems. Find the area of the circle given its circumference iv. Solve problems involving area of circles. iv. ii. Learning Outcomes: i. Find the circumderence of a circle given its area. Find the area of a circle given its radius or diameter given the area of the circle. students will be able to:Page 1 of 1 . Teacher concludes today’s lesson. Activities: i. iii. iii. ii. v. Teacher distributes worksheet to students. project Values: Confident & independent. vi. Derive the formula of the area of a circle. rational Reflection: Teacher asks students to recall their knowledge regarding circle that they have learnt so far. Teacher introduces today’s lesson objectives to students Teacher explains the definition of area of the circle Teacher shows a few questions regarding area of the circle and discusses with students the solutions to the questions. Language Focus: Area Strategy: Thinking skills. Notes: Theme / Learning Area: CIRCLES Learning Objectives: By the end of the lesson. future studies.DAILY LESSON PLAN CLASS VENUE DATE TIME ATTENDANCE Learning Objectives: By the end of the lesson. contextual Learning Styles: Independent study. honest.
iii. mastery learning Learning Styles: Learning centers. vi. v. students will be able to:Page 1 of 1 . Learning Outcomes: i. ii. cooperative learning Values: Cooperative. Solve problems involving area of a sector and area of a circle. flexible & open-minded Reflection: Notes: Theme / Learning Area: CIRCLES Learning Objectives: By the end of the lesson. iv.DAILY LESSON PLAN CLASS VENUE DATE TIME ATTENDANCE Understand and use the concept of area of sector of a circle to solve problems. iv. area of a sector Strategy: Inquiry & discovery. Find the radius given the area of a sector and the angle at the centre. multiple skills. Derive formula of the area of a sector. Activities: i. Teacher discusses the rest of the questions with the whole class. v. Teacher gives a short quiz based from the previous lesson. Teacher introduces today’s learning objective Teacher writes a few questions at whiteboard and randomly selects students to answer the questions Teacher guides students on answering the questions. Teacher concludes today’s lesson Language Focus: Area of a circle. ii. Find the angle at the centre given the radius and area of a sector. iii. Find the area of a sector given the radius and angle at the centre. diligent & patient.
discussion. objective Reflection: Notes: Page 1 of 1 . Activities: i. ii. lecture Values: Systematic. 40 minutes test (PBS Assessment) Teacher discusses the test with students Language Focus: Circle.DAILY LESSON PLAN CLASS VENUE DATE TIME ATTENDANCE Understand and use the concept of Circles. Learning Outcomes: Recap the whole chapter on Circles (PBS Asssessment). Problem Solving Strategy: Learning to learn. constructivism. moderate. self study Learning Styles: Demonstration.


Enrico Salvatico has been appointed as President of the ANIMP (Italian Association of Industrial Plant) Logistics, Transport and Freight Forwarding Department for the four-year period 2018-2022.
ANIMP is a meeting point for companies and professional experts of plant design and installation e represents an important landmark for the supply chain.
Among the associates there are EPC (Engineering, Procurement and Construction) Contractors, small and medium companies providing materials, services, placement and assembly, end-users, University professors, professional experts and scholars, all of them dealing with the design and construction of industrial plants, major works and infrastructures.
For further information please visit www.animp.it.
SLM recently assisted a shipowner sued by a cargo insurer who claimed the reimbursement of the salvage compensation, amounting to euro 6 million, paid by the insurer in favor of the salvor who assisted the vessel and the cargo after a fire broke out in the engine room. The Tribunal of Genoa with judgement dated 22.1.2019 rejected the claim declaring it time barred. The Tribunal held that the claim in tort against the actual carrier (shipowner) other than the contractual carrier was subject to the same regime, the Hague Visby Rules, governing the liability of the carrier including the one year time bar period. Such decisions was rendered on the basis of a non-recent decision of the Court of Cassation, according to which the HVR applies both to the actual and the contractual carrier, and under the Himalaya clause included in the bill of lading which gave the shipowner the benefit of all contractual and law provisions applicable to the carrier.
SLM recently assisted a cruise company sued by the victims of the terrorist attack occurred during the shore excursion at the Bardo Museum of Tunis on 18th March 2015. The Tribunal of Turin with judgment dated 12.11.2018 and the Tribunal of Verona with judgment dated 24.12.2018 rejected the claims for damages submitted by the victims holding that (i) the duty of care of the Tour Operator required him to consult and follow the official information available on the website of the Ministry of Foreign Affairs, but no more than that (and in the instant case no specific warning has been published by the Ministry) and (ii) the terrorist attack was an unforeseeable and unavoidable event entirely beyond the control of the Tour Operator, for which the Tour Operator could not accordingly be blamed.
By judgement n. 12565/2018, the United Sections of the Italian Court of Cassation held that insurance compensation and compensation for damages aim at same compensatory functions and, therefore, they cannot be liquidated together. Payment of the indemnity, by the damaged party, determines a corresponding reduction of its claim for compensation against the damaging party, that can no longer be claimed. Furthermore, the takeover of the insurer, according to art. 1916 of the Italian Civil Code, takes place automatically, following the payment of compensation for that damage for which the third party is responsible. The takeover, in particular, does not require any prior communication from the insurer regarding its intention to succeed in the rights of the insured against any third party.
Application and lawfulness of the clauses “Claims made” for matters relating to insurance.
By Judgement n. 22437 of 24th September 2018 the United Section of the Court of Cassation held that, for matters relating to insurance, the clauses “claims made” are an exception from the typical insurance of civil liability outlined by art. 1917 cod. civ. paragraph 1. Such insurance coverage does not operate in relation to all claims for damages, arising during the period of execution of the contract, but under the condition that, during the period of policy’s operation, a request for compensation takes action by the injured third party and also that such request is forwarded by the insured party to the insurer. Nevertheless, in order to assess the lawfulness of a “claims made” clause, it is necessary to consider overall the matter brought before the court, its impact on reporting obligations, the correspondence between insurance premium and assured risk and the existence of a withdrawal clause during the employment relationship.
On 19th September 2018, Mirko Scapinello and Filippo Pellerano gave a lecture during the master degree course on marine and transport insurance (MASMET) organized by the Genoa University in cooperation with various operators and practitioners in the shipping market. The lesson, which has taken place at P. L Ferrai & Co. premises in Genoa, focused on the interactions between the insurance covers in the context of big casualties like the Costa Concordia and the Norman Atlantic.
By Legislative Decree dated 21.5.2018 no. 62 Italy has implemented the EU Directive 2015/2302 of the European Parliament and of the Council on package travel and linked travel arrangements. The Legislative Decree modifies the provisions of Italian Law on Tourism (contained in Legislative Decree n. 79/2011) in light of the provisions of the Directive and contains the sanctions applicable to the organizer and the seller of package travel and linked travel arrangements for the violations of the provisions of the Legislative Decree. The Decree will enter into force on 1.7.2018.
The Court of Appeal of Milan recently held that the general rule consisting in the recognition of the right of action for damages to cargo exclusively in favour of the consignee who asked the carrier for delivery (art. 13 CMR and art. 1689 of the Italian Civil Code), also stands in case of partial delivery. The right of action is, in fact, transferred to the consignee upon delivery (or upon request of delivery) and it is irrelevant that delivery then only takes place partially, being the obligation of delivery an indivisible obligation.
Nel fascicolo 1/2018 della rivista Diritto del Commercio Internazionale è pubblicato un articolo del prof. avv. Marco Lopez de Gonzalo dal titolo “Le clausole nei Charterparties”.
Article 31 of the Montreal Convention requires, in case of loss or damage of baggage, that a complaint “in writing” is made within 7 days, failing which “no action shall lie against the carrier”.
In the context of proceedings before the Finnish Supreme Court, the question arose whether a complaint made by phone by the passenger and recorded in writing by the air carrier would satisfy the requirement of art. 31 of the Montreal Convention.
The ECJ, in a judgement issued on 12 April 2018 (case C-258/16, Finnair v. Fennia), having noted that the Montreal Convention aims to “an equitable balance”, held that the requirement of art 31 of the Montreal Convention is satisfied if a complaint is recorded in the information system of the carrier or when, with the knowledge of the passenger, a representative of the carrier has recorded the declaration of loss made orally by the passenger either on paper or electronically.


Being charged with public intoxication is often the wrong charge. Police seem to hand out public intoxication because someone is drunk in public, or high on something in public, or a combination of alcohol and drugs.
Our office sees police issue such tickets most often on Friday nights/Saturday mornings and Saturday nights/Sunday mornings, or at sporting events. However, being drunk in public and not doing anything to affect others, however, is not a crime.
To violate Penal Code § 647(f), one can do one of two things. First, one must not only be so drunk or high, or a combination thereof, and be in such a state that one cannot care for oneself or one presents a safety risk to others. Alternatively, one must be so drunk or high, or a combination thereof, that one interferes with, obstructs or prevents others from using a street, sidewalk or other public travel route.
The most common example we see of the first way of violating 647(f) is when someone passes out drunk in a public place. Often, the person is partially unclothed or even naked. The person may also engage in fighting, but this can be more accurately charged as a Penal Code § 415(1) violation (“Disturbing the Peace – Fighting in Public”).
The second category of 647(f) violations are when someone is arrested for walking on a freeway, or in the middle of traffic. Simple jaywalking should not qualify, but is often ticketed as a 647(f) violation.
The penalty for being convicted of violating Penal Code § 647(f) is a maximum of six months in jail and /or a $1,000 fine.
Our office finds that when the client has no prior alcohol related convictions, or a conviction that is more than ten years prior, prosecutors will often amend the complaint to allege an infraction-level violation of disturbing the peace (Penal Code § 415(1) – Fighting in Public or § 415(2), Disturbing the Peace – Making Annoying or Loud Noise, or § 415(3), Disturbing the Peace by using offensive language). This is especially true if the client completes a dozen or more alcoholics anonymous meetings prior to the arraignment and brings documentation of this to court. The plea bargain may be one of delayed entry of plea or deferred entry of judgment if the client is fortunate, thereby “earning” a dismissal.
Rushing into a plea bargain is very common in such cases – and cannot be faulted if the client admits his or her conduct that meets the definition of 647(f). However, a quick resolution should never become a habit. It is often prudent to search for any store security camera tape, third-party witnesses and even see if the arresting officer has any history of falsifying police reports. After all, a misdemeanor conviction will haunt one’s employment future, ability to finance, eligibility for student loans and may affect licensing, such as if one is an attorney, doctor, registered nurse, dentist, teacher, security guard, real estate agent, real estate broker, pharmacist, notary, stock broker or architect, to name a few.


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Botrytis cinerea and Penicillium spp. (e.g. P. expanusm and P. crustosum) are the most common pathogenic agents of wine grapes (Rousseaux et al., 2014). These fungi are responsible for the production of volatile compounds that may have strong impact on the quality of wine (La Guerche et al., 2007).
Botrytis and Penicillium infect grapes are used for passito wine production during the post-harvest dehydration process (withering) (Lorenzini et al., 2016a). The incidence of their infection on withered grapes depends on culture management, seasonal conditions and withering technique. Different studies were performed to assess the B. cinerea, Penicillium spp. effects on volatile compound profile of Amarone wine, the most economically important Italian passito wine (Fedrizzi et al., 2011; Tosi et al. 2012; Zapparoli et al, 2018). Moreover, through proteomic analyses, study focused on the detection of potential markers of these fungi infection in grapes during the withering have been performed (Lorenzini, et al., 2016b; Lorenzini, et al., 2015).
In our studies, Corvina grapes were infected with B. cinerea and two Penicillum species (P. expansum and P. crustosum) in a fruit drying room of Valpolicella area. Grape samples were withered in natural conditions for about three months according traditional withering protocol. At the end of the withering process, bunches were crushed separately to obtain the grape musts for the red vinification. Must obtained from healthy Corvina grapes was used as control. Aroma compound analysis in wines obtained from healthy and infected grapes was carried out by Gas Chromatography – Mass Spectrometry (GC-MS). Sensory analysis of wines were carried out by a panel test composed by experts of Amarone wine.
Figure 1. Culture of (A) Botrytis cinerea and (B) P. crustosum and (C) P. expansum used for the grape bunches infection.
Botrytis cinerea infection of withered grapes had significant effects on Amarone wine quality. Significant changes on the content of important molecule categories such as esters, fatty acids, aldehydes and lactones were described. Similar results were reported in our previously investigations (Fedrizzi et al., 2011; Tosi et al. 2012). In particular, ethyl hexanoate, ethyl octanoate and ethyl decanoate, that play a key role in the fruity notes of wines, decreased in botrytized. Other odour-active molecules such as 1-octen-3-ol (mushroom note), phenylacetaldehyde (correlated with an oxidation-related sensory note), γ-nonalactone (coconut, sweet note) and 4-carbethoxy-γ-butyrolactone (sweet, coconut note) and N-(3-methylbutyl)-acetamide (vinegar/pungent note) increased in botrytized wine.
At sensory level, botrytized wines, tasted after one year, were perceived for more aroma complexity, almond, balsamic and resinous scent than control wine. Nevertheless, two years–aged botrytized wines were characterized by aged aroma and altered colour due to accelerated oxidation process.
Chemical and sensory analysis of wine produced from grape infected by P. expansum and P. crustosum evidenced that the fungal effects on wine quality can be important, as previously reported by Zapparoli et al. (2018). In particular, the most important odour-active molecules that varied consistently were found 3-methylthio-1-propanol (potato note), ethyl acetate (vinegar note) benzaldehydes (almond-like note), furfural (sweet, caramel scent), 4-carboxyethoxy-γ-butyrolactone, sherry lactones (oxidized note) and N-(3-methylbutyl)-acetamide. High variations in the content of these and other molecules between P. expansum and P. crustosum wines were also noted, evidencing species-related differences.
At sensory level, wine from Penicillium infected grapes were well distinguished from control wines particularly due to high intensity of pharmaceutical note giving an unpleasant aroma.
Figure 2. Infection trials. (A) Infected grape bunches of Corvina variety laid out in boxes for the withering process. Berry showing (B) B. cinerea, (C) P. crustosum and (D) P. expansum infection.
Barbara Simonato took a degree in Biological Sciences with a specialization in Food Science, at the University of Padua (Italy). She held a Ph.D. for studying the effect of technological treatment on allergenity of wheat, at the University of Padua. She is an Assistant Professor in Food Science and Technology, at the Department of Biotechnology of the University of Verona. Her research concerns the biochemistry of processed foods and their starting material.
Marilinda Lorenzini is a Ph.D. in Microbiology, at the Dipartimento di Biotecnologie of the Università degli Studi di Verona (Italy). Her research concerns the physiological, molecular and phylogenetic study of fungi (i.e. filamentous fungi and yeasts) and bacteria populations involved during the production of wines. Her research has also been concern the study of proteomic effect of filamentous fungi on grape proteome during the post-harvest withering process of grapes.
Giacomo Zapparoli is a microbiologist expert of microorganisms of grape and wine. He is an Assistant Professor in Agricultural Microbiology, at the Department of Biotechnology of the University of Verona. His research concerns the identification and taxonomy of fungi and bacteria and their effects on grape-wine quality.
Fedrizzi, F., Tosi, E., Simonato, B., Finato, F., Cipriani, M., Caramia, G., & Zapparoli, G. (2011). Food Technology and Biotechnology, 49, 529−535.
La Guerche, S., De Senneville, L., Blancard, D., & Darriet, P. (2007). Antonie Van Leeuwenhoek International Journal, 92, 331-341.
Lorenzini, M., Millioni, R., Franchin, C., Zapparoli, G., Arrigoni, G., & Simonato, B. (2015). Food Chemistry, 179. 170–174.
Lorenzini, M., Cappello, M.S., Logrieco, A., & Zapparoli, G. (2016a). International Journal of Food Microbiology, 238, 56-62.
Lorenzini, M., Mainente, F., Zapparoli, G., Cecconi, D., & Simonato, B. (2016b). Food Chemistry, 199, 639−647.
Rousseaux, S., Diguta, C. F., Radoï-Matei, F., Alexandre, H., & Guilloux-Bénatier, M. (2014). Food Microbiology, 38, 104−121.
Tosi, E., Fedrizzi, B., Azzolini, M., Finato, F., Simonato, B., & Zapparoli, G. (2012). Food Chemisty, 130, 370-375.
Oxidative stress is caused by the insufficient capacity of biological systems to neutralize reactive species produced in excess. A serious imbalance between the generation of reactive oxygen species (ROS) and antioxidant (AOX) protection in favor of the former causes excessive oxidative damage in cells and tissues because the ROS excessive production is associated with disruption of cell cycle regulatory mechanisms (HALLIWELL, 2011).
Furthermore, excessive or prolonged ROS generation cause various health problems, such as cardiovascular disease, insulin resistance, type 2 diabetes, osteoporosis, arthritis, asthma, and inflammatory bowel disease (HALLIWELL et al., 1995; DRÖGE, 2002; RANKIN, 2004), therefore, regulation of ROS levels is critical for reducing the risk of related chronic diseases (WANG; CAO; PRIOR, 1996). Towards the end of 20th century, epidemiological studies and associated meta-analyses strongly suggested that long term consumption of diets rich in plant polyphenols offered some protection against development of cancers, and neurodegenerative diseases.
The phenolic compounds in grapes and derivatives, mainly the flavonoids, flavanols, flavonols and anthocyanins, are associated with improved health, along with other compounds which are not flavonoids, such as phenolic acids and the stilbene resveratrol (SAUTTER, et al., 2005; KRIKORIAN et al., 2012). Besides these functions, the chemical structure of polyphenols, mainly flavonoids and stilbenes (resveratrol), makes them suitable to act as antioxidants, trapping and neutralizing free radicals.
Cell culture has often been used to study the cellular effects of reactive species and of antioxidants, and many useful data have resulted (HALLIWELL, 2011). Hydrogen peroxide is a physiological constituent of living cells and is continuously produced via diverse cellular pathways. Intracellular steady-state concentrations of H2O2 above 1 μM are considered to cause oxidative stress inducing growth arrest and cell death (STONE; YANG, 2006). In experimental models used to investigate physiological functions and toxic effects of H2O2, oxidative stress responses of cells, or cryoprotection by antioxidant agents, cultured cells are often exposed to H2O2 added as a bolus into the culture medium (GÜLDEN et al., 2010).
To determine wine could protect against oxidative stress-induced cell death, the SH-SY5Y cell line was used as an in vitro model and H2O2 as pro-oxidant insult. After 24 h of H2O2 exposure in combination with wine at 250 μg/mL significantly increase the cell viability in the absence of H2O2, while 250 μg/mL of wine protected against cytotoxicity. Similar results were found by Xiang et al. (2014), when SH-SY5Y cells were treated with 100 µM H2O2 with 4 mg/mL red wine extracts or red wine adding 10-fold resveratrol, all wine varieties showed significant neuroprotective effect against H2O2-induced oxidative stress. Results of the intracellular antioxidant capacity measurements of the wine samples using the dichloro-dihydro-fluorescein diacetate (DCFH-DA) assay in wine had a pro-oxidant effect per se by increasing the dichlorofluorescein (DCF) levels in the absence of H2O2, whereas, 250 and 500 µg/mL of wine significantly reduced H2O2-induced production of ROS. Results obtained suggest that wine is a potential antioxidant and have positive effect against reactive species generated in SH-SY5Y cells, suggesting a neuroprotective effect.
Cristiane Copetti. Graduated in Nutrition by Franciscana University (Brazil) in 2007. Master in Food Science – Food Chemistry and Biochemistry by Federal University of Santa Catarina (Brazil) in 2010. Professor of Nutrition in Franciscana University between 2010 and 2012. Ph.D. in Food Science and Technology - Processing and Analysis of Wine and Other Alcoholic Beverages by Federal University of Santa Maria (Brazil) in 2017, during this period, the research activity was divided in laboratories of Center of Oxidative Stress Research (CEEO), Department of Biochemistry and Institute of Food Science and Technology (ICTA) of Federal University of Rio Grande do Sul. Currently works in the Criciúma city (Brazil) composing the team federal program of the Family Health and Basic Care Support Center and visiting professor of cultural gastronomy course of Federal University of Rio Grande do Sul (Brazil).
BECKMAN C.H. Phenolic-storing cells: keys to programmed cell death and periderm formation in wilt disease resistance and in general defense responses in plants? Physiological and Molecular Plant Pathology, v. 57, p. 101-110, 2000.
DRÖGE W. Free radicals in the physiological control of cell function. Physiological Reviews, v. 82, p. 47-95, 2002.
GÜLDEN, M., et al. Cytotoxic potency of H2O2 in cell cultures: Impact of cell concentration and exposure time. Free Radical Biology & Medicine, v. 49, p. 1298–1305, 2010.
HALLIWELL B, et al. The characterization of antioxidants. Food Chemical Toxicology, v. 33, p. 601-617, 1995.
HALLIWELL, B. Free radicals and antioxidants – quo vadis? Trends in Pharmacological Sciences, v. 32, p. 125–130, 2011.
KRIKORIAN, R., et al. Concord grape juice supplementation and neurocognitive function in human aging. Journal of Agricultural and Food Chemistry, v. 60, p. 5736–5742, 2012.
RANKIN, J.A. Biological mediators of acute inflammation. AACN Clinical, v. 15, p. 3-17, 2004.
SAUTTER, C.K., et al. Determinação de resveratrol em sucos de uva no Brazil. Ciência e Tecnologia de Alimentos, v. 25, p. 437–442, 2005.
SCALBERT A., et al. Dietary polyphenols and the prevention of diseases. Critical Reviews in Food Science and Nutrition, v. 45, p. 287-306, 2005.
SPENCER J. P., et al. Biomarkers of the intake of dietary polyphenols: strengths, limitations and application in nutrition research. British Journal of Nutrition, v. 99, p. 12-22, 2008.
STONE, J. R.; YANG, S. Hydrogen peroxide: a signalling messenger. Antioxidant & Redox Signaling, n. 8, p. 243–270, 2006.
WANG H., CAO G., PRIOR R.L. Total antioxidant capacity of fruits. Journal of Agricultural and Food Chemistry, n. 44, p. 701-705, 1996.
XIANG, L., et al. Health benefits of wine: don׳t expect resveratrol too much. Food Chemistry, n.156, p. 258-263, 2014.
Grape accumulates numerous polyphenols with abundant health benefit and organoleptic properties that in planta act as key components of the plant defense system against diseases. Besides ubiquitous phenolic compounds including flavonoids, hydroxycinnamates and benzoates, grapevine accumulated peculiar non-flavonoid compounds called stilbenoids. Grapevine accumulates stilbenoids mainly in lignified organs. By the way, the winter-pruned wood from vineyard has been proposed as a source of valuable bioactive compounds (Houillé et al 2014; 2015a; 2015b; Billet et al., 2018a).
Metabolomics is the systematic study of all small-molecular weight metabolites present within a cell, tissue or organism. Grape metabolomics has contributed greatly to the chemical characterization of wine (Flamini et al., 2013). Recently, the development of metabolomic approaches has led to the concept of metabolic phenotype that considers a metabolic profile as a result of the genotype expression under environmental conditions. It is particularly relevant for plant metabotypes based on specialized metabolites since they might vary according biotic and abiotic stresses.
In the present study (Billet et al., 2018b), a field experiment (Figure 1) was setting up with uniform pedo-climatic factors and viticultural practices of growing vines to favor the genetic determinism of polyphenol expression. We used UPLC-MS-based targeted metabolomics to identify the metabolic composition of grape stem that correspond to the main site of accumulation for stilbenoids in vines. Chemometric tools including principal component analysis (PCA), partial least square discriminant analysis (PLS-DA) and hierarchical cluster analysis (HCA) were used to identify the overall metabolomic similarity/dissimilarity among the samples. Metabolomic and SSR-based clusterings were compared to assess the relationship between biochemical and genetic distances.
Figure 1. Location of the vineyard plots planted with the 8 different grape varieties in Amboise (Loire Valley, France). Grape stems were randomly pruned across the total area of each plot as indicated by circle positions.
As a result, metabolic profiles of grape stems enabled discrimination of varietal origin suggesting that polyphenol profiles exhibit variety-dependent metabolic fingerprints (Figure 2). HCA perfectly separated genotypic replicates but also grouped genotypes according to their biochemical distances, thus suggesting a classification in accordance with their genetic distance.
A first group of metabotypes (Gamay, Chardonnay, Pinot Noir) corresponds to closely related genotypes previously grouped called “Noirien” when defined as eco-geographical groups by ampelographers. A second group of metabotypes (Chenin, Sauvignon) belongs to the group called “Messile” originated in the French Loire Valley. Recently, these parentage relationships were confirmed by DNA sequence studies using SSR and SNP markers. Chardonnay and Gamay are full-siblings of Pinot noir and Gouais Blanc and Chenin is a possible natural cross of between Sauvignon and Savagnin.
Field-based metabolomic experiments may reflect real growth conditions, however such investigations are challenging because the metabotype reflects both genetic and environmental conditions. In the present field experiment, the genotypic discrimination was achieved using a harvest protocol that limits the effect of environmental conditions and highlights variations due to the genotype. Because, polyphenol content in grape stems might be locally induced in response to pathogen attacks, the quality of sampling design in the vineyard is determinant to limit intra-plot variations.
Dealing with the different sources of variability in real growing conditions (genotypes, environment and management interventions) constitutes one of the future challenges for field-omics. In a near future, the present polyphenol metabotyping approach coupled to multivariate statistical analyses might assist grape selection programs to improve metabolites with health-benefit potential and plant defense traits.
Figure 2. metabolic profiles of grape stems.
Dr. Arnaud Lanoue is a phytochemical analyst. He obtained a joint Ph.D. at the Universities of Amiens (France) and Geneva (Switzerland) in 2002 on the bioproduction of plant specialized metabolites. He conducted postdoctoral research at the Juelich Research Center (Germany) on plant natural products as signaling molecules within the Biorhiz project (Marie Curie actions-Research Training Networks). Since 2007, he is Associate Professor at the Faculty of Pharmacy in the University of Tours (France) in the Lab “Biomolecules and Plant Biotechnologies” (@BBVEA2106_Tours, Plant & Biotech Lab - BBV Ea2106 Tours) where is leading several research programs on the valorization of grape polyphenols.
Billet, K., Houille, B., Dugé de Bernonville, T., Besseau, S., Oudin, A., Courdavault, V., et al. (2018b). Field-based metabolomics of Vitis vinifera L. Stems Provides New Insights for Genotype Discrimination and Polyphenol Metabolism Structuring. Front. Plant Sci. doi: 10.3389/fpls.2018.00798.
Flamini, R., De Rosso, M., De Marchi, F., Dalla Vedova, A., Panighel, A., Gardiman, M., et al. (2013). An innovative approach to grape metabolomics: stilbene profiling by suspect screening analysis. Metabolomics 9(6), 1243-1253. doi: 10.1007/s11306-013-0530-0.
The anthocyanins are responsible for most of the red, blue and purple colors of fruits and flowers, in addition to some vegetables such as purple varieties of potatoes, corn, beans, onions and carrots, or red cabbage and some plant leaves such as purple trees, new foliage or the red leaves around poinsettia flowers or even autumn leaves (Figure 1). Although thousands of different anthocyanins have been characterized, almost all can be classified into six basic structural types that differ only in the number of hydroxy or methoxy substituents in the B ring (Scheme 1). In nature, the 3-hydroxy group of anthocyanins is always glycosylated, which is apparently important for thermal stability. Anthocyanins derived from malvidin-3-O-glucoside (Scheme 2) typically predominate in Vitis vinifera grapes, with lesser amounts of anthocyanins derived from cyanindin, peonidin, delphinidin and petunidin.
Scheme 1. The six most common basic chemical structures of anthocyanins, shown as the fully deglycosylated or aglycone forms, referred to as anthocyanidins; the percentages in parentheses represent the approximate relative natural abundances in plants.
Anthocyanins accumulate in vacuoles of plants and have been proposed to play at least three important biological roles in plants: (1) as a color signal to attract pollinators to flowers or frugivores to fruit; (2) as an antioxidant; and (3) in the case of leaves, photoprotection of the photosynthetic apparatus against excess solar radiation. Although anthocyanins are safe to use as food colorants, with desirable antioxidant properties and other potential health benefits, their color is restricted to relatively acidic solutions (pH < 3). Especially around neutral pH, anthocyanins lose most of their color due to a pH-dependent reaction with water and a series of subsequent structural transformations.3 In this regard, red wines have managed to improve on Nature by slowly transforming the anthocyanins initially present in grape juice into a variety of more complex pigment molecules during the ageing of the wine. These complex reactions of the anthocyanins with colorless molecules and yeast metabolites present in the wine produce pyranoanthocyanins (Scheme 2), which are important contributors to the final color of the wine. Pyranoanthocyanins differ from anthocyanins by the presence of an additional pyran ring between the 4-carbon and the 5-hydroxy group of the anthocyanin precursor, which blocks the reaction with water, making the color of mature wines more pH-stable and much less susceptible to bleaching by additives such as sulfite than that of young wines. Pyranoanthocyanins also appear to contribute to the radical scavenging antioxidant capacity and to the organoleptic properties of aged red wines.
Scheme 2. Generic reaction for the formation of a Vitisin B type pyranoanthocyanin via a reaction of malvidin 3-O-glucoside (oenin), the predominant anthocyanin in Vitis vinifera grapes, with the enol form of a copigment during the maturation of red wine.
Scheme 4. Excited state proton transfer process of malvidin 3-O-glucoside. Absorption of light (h) by the ground state cation form AH+ produces the first excited singlet state of the cation, [AH+]*1, which transfers a proton to water to form the excited singlet state of the conjugate base, A*, in about 20 ps. The excited base form A* lives on average ca. 200 ps before transforming the excitation energy into heat and returning to the ground state of the base, A, which then reprotonates back to AH+ with no net chemistry.
Anthocyanins also form complexes with colorless electron-rich “copigments” molecules such as hydroxybenzoic or hydroxycinnamic acids. Intramolecular copigmentation complexes are also present in acyl anthocyanins with one or more copigment molecules covalently attached to the sugar residues. The charge-transfer interactions involved in the copigmentation not only help stabilize the cationic form of the anthocyanin chemically, but also open up a new charge-transfer mediated channel for direct conversion of the absorbed light energy into heat that is even faster ( 1 ps) than excited state proton transfer. As far as we know, there are no published studies of copigmentation of pyranoanthocyanins, but it is reasonable to expect that it should occur.
Dr. Frank Herbert Quina (quina@usp.br) is a full professor at the Instituto de Química, Universidade de São Paulo, in São Paulo, Brazil. He received his Ph.D. from CALTECH (1973) and immigrated to Brazil in 1975 after a post-doctoral stint at the University of North Carolina, Chapel Hill. He is a Level 1A research fellow of the Brazilian National Research Council (CNPq), a fellow of the Royal Society of Chemistry, IUPAC and the Inter-American Photochemical Society, and a member of the Brazilian Academy of Sciences. He was a Senior Editor of Langmuir (2013-2016) and is currently an Associate Editor of ACS Omega and on the editorial boards of Photochemical and Photobiological Sciences, Photochemistry and Photobiology and the Brazilian Journal of Chemical Engineering. His group maintains active international research collaborations with groups in Portugal, Chile, Canada, China and the USA in the areas of the chemistry and photochemistry of natural plant pigments and the structure and dynamics of self-assembling colloidal systems. He is the fifth generation of his family with a registered cattle brand and the third generation to grow tropical fruit.

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This week’s notable decision is fresh out of the U.S. Supreme Court in Advocate Health Care Network, et al. v. Stapleton, et al., No. 16-74, 581 U.S. __, (June 5, 2017). In a stunning blow to the pension plan participants of “principal-purpose organizations,” the Supreme Court held that a church-affiliated organization’s defined benefit plan is an ERISA-exempt “church plan” regardless of who established it. Petitioners are three church-affiliated nonprofits that established the defined benefit plans at issue and manage these plans by internal employee-benefits committees. Respondents are current and former hospital employees who claim that the pension plans do not fall within ERISA’s church plan exemption because they were not established by a church. The Supreme Court reasoned that when Congress amended ERISA to expand the definition of a church plan to include a “plan maintained by an organization … the principal purpose…of which is the administration or funding of [such] plan …for the employees of a church…, if such organization is controlled by or associated with a church,” Congress intended to include plans maintained by principal-purpose organizations. See 29 U.S.C. Section 1002(33)(C)(i). In other words, Congress added language that enabled a plan maintained by a principal-purpose organization to substitute for a plan both established and maintained by a church. Justice Kagan delivered the opinion of the Court, in which all other Members joined, except Justice Gorsuch, who took no part in the consideration or decision of the cases. Justice Sotomayor filed a concurring opinion because she agrees that the statutory text compels the result reached by the majority but is troubled by the outcome that employees of large healthcare providers are not subject to ERISA’s protections. Besides this heavyweight of a decision, the rest of this week was fairly light. Enjoy!
Dist. Photo Inc. Health Care Plan v. Pyrros, No. 13CV4285JFBSIL, __F.Supp.3d__, 2017 WL 2334027 (E.D.N.Y. May 30, 2017) (Judge Joseph F. Bianco). Where Defendants ultimately prevailed in this action against them seeking restitution of overpaid benefits, the court denied their motion for attorneys’ fees where it found that the Chambless factors weigh against an award of attorneys’ fees, especially in light of plaintiff’s minimal culpability and the possible chilling effect an award would have on potentially meritorious lawsuits brought to protect beneficiaries’ interests.
3M Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, No. 15-3495, __F.3d__, 2017 WL 2347105 (8th Cir. May 31, 2017) (Before LOKEN, SMITH, and COLLOTON, Circuit Judges). The court affirmed the district court’s grant of summary judgment to the defendant insurer. The district court held that the 3M’s losses due to fraud perpetrated by its own investment advisors are not covered by 3M’s insurance policy since 3M does not meet the conditions of coverage set forth in the “ownership provision” of the policy. Although 3M claimed that it satisfies the ownership requirement because it had ERISA fiduciary duties regarding the stolen earnings, the court explained that ERISA regulation, 29 C.F.R. § 2510.3–101, does not alter general commercial property rights, but merely defines the nature and scope of the fiduciary duties owed to plan participants.
Meiners v. Wells Fargo & Co., et al., No. CV 16-3981(DSD/FLN), 2017 WL 2303968 (D. Minn. May 25, 2017) (Judge David S. Doty). Plaintiff’s allegation that Wells Fargo breached its fiduciary duty by continuing to invest in its own target date funds when better-performing funds were available at a lower cost is insufficient to plausibly allege a breach of fiduciary duty. Thus, that claim and the breach of co-fiduciary duty and knowing participation in a breach of fiduciary duty must be dismissed.
Turner v. Alstate Ins. Co., No. 2:13-CV-685-WKW, 2017 WL 2274331 (M.D. Ala. May 24, 2017) (Magistrate Judge Charles S. Coody). In this consolidated ERISA action concerning “paid up” life insurance policies for retirees, the court granted Plaintiffs’ motion to compel to redepose Jim Devries to answer the following question which his attorney instructed him not to answer due to privilege: … in making the decision to terminate the retiree life Insurance benefits to Allstate employees, did you consider what commitments Allstate had made to its home office employees when it issued a special retirement opportunity to them in the mid ‘90’s? The answer requests a historical fact which is not privileged.
B.R. v. Beacon Health Options, No. 16-CV-04576-MEJ, 2017 WL 2351973 (N.D. Cal. May 31, 2017) (Magistrate Judge Maria-Elena James). The court granted Defendant’s motion to dismiss because Plaintiffs have not identified precisely which Plan provisions they contend SAG-AFTRA violated by not paying for W.R.’s residential mental health treatment. The court also granted the motion on the basis that the Plan does not provide coverage for non-emergency, out-of-network hospital treatment.
Aicher v. IBEW Local Union No. 269 Joint Trust Funds Office, No. CV 12-1781 (FLW), 2017 WL 2364191 (D.N.J. May 31, 2017) (Judge Freda L. Wolfson). The court held that the Trustees’ denial of Plaintiff’s retroactive pension payments for the period of September 2010 to December 2011 is arbitrary and capricious, where the Trustees’ determined that Plaintiff’s work as an Administrative Manager was in the electrical construction industry which is in the same “industry” as his former employment, but did not engage in the pertinent analyses of considering the skill or skills actually used by the retiree in his job. The court awarded benefits and prejudgment interest at the interest rate prescribed for post-judgment interest under 28 U.S.C. Section 1961.
Andrus v. Unum Life Ins. Co. of Am., No. CV 16-1112, 2017 WL 2364247 (E.D. La. May 31, 2017) (Judge Susie Morgan). OGHS is a political subdivision of the State of Louisiana because it is administered by individuals who are responsible to public officials or the general electorate. It is also an agency or instrumentality of the Hospital Service District No. 2, which is a political subdivision of the State of Louisiana. As such, the employee benefit plan established and maintained by OGHS is a “governmental plan,” which is exempt from ERISA coverage pursuant to 29 U.S.C. § 1003(b)(1).
Pearson v. Wellmark, Inc., No. 4:15-CV-3164, 2017 WL 2371142 (D. Neb. May 31, 2017) (Judge John M. Gerrard). In this matter challenging a denial of air ambulance services, the court denied Defendant’s motion to dismiss Plaintiff’s claim for equitable relief based on Wellmark’s alleged refusal to comply with ERISA’s disclosure requirements even though Plaintiff also alleged a claim for benefits under § 1132(a)(1)(B). Although these claims derive from the same factual premise—i.e., Wellmark’s denial of benefits—that fact is not, at the motion to dismiss stage, dispositive under Varity. The court also denied the motion to dismiss on the grounds that the air-ambulance fee schedule is outside of Section 1024(b)(4)’s reach.
Bloomfield Surgical Center v. Cigna Health and Life Insurance Company, et al., No. CV168645SDWLDW, 2017 WL 2304642 (D.N.J. May 25, 2017) (Judge Susan D. Wigenton). The court dismissed the counts asserting claims for failure to establish a Summary Plan Description and breach of fiduciary duty since they do not fall within the narrow scope of the assigned rights set forth in the assignment of benefits. The court also dismissed the claim brought under 29 C.F.R. 2560.503-1 since this regulation does not create a private right of action.
Langley v. Howard Hughes Management Company, L.L.C., No. 16-20724, __F.App’x__, 2017 WL 2390609 (5th Cir. June 1, 2017) (Before KING, JOLLY, and PRADO, Circuit Judges). The court reversed the district court’s award of summary judgment and attorneys’ fees in favor of the plan administrator. The plan administrator denied separation benefits to Plaintiff based on the exclusion for any person who is compensated by “special fees.” The court held that the administrator’s reading of the Separation Benefits Plan to exclude Plaintiff on the basis of the Club Sale Incentive Award was not legally correct. Because the administrator’s interpretation of the Plan contradicted the plain meaning of the plan language, it was an abuse of discretion.
Aicher v. IBEW Local Union No. 269 Joint Trust Funds Office, No. CV 12-1781 (FLW), 2017 WL 2364191 (D.N.J. May 31, 2017) (Judge Freda L. Wolfson). Plaintiff’s allegations that Defendants discouraged him from filing benefits claim or that Defendants instructed the Third–Party Plan Administrator to not process Plaintiff’s application for benefits do not present any actionable prohibited employer conduct within the meaning of section 510.
Rhea v. Alan Ritchey, Inc. Welfare Benefit Plan, No. 16-41032, __F.3d__, 2017 WL 2332538 (5th Cir. May 30, 2017) (Before SMITH, PRADO, and GRAVES, Circuit Judges). The court affirmed the district court’s decision that Defendants are entitled to reimbursement for medical expenses from Plaintiff’s malpractice claim settlement because the settlement created an equitable lien by agreement. An SPD can function as a written instrument in the absence of a separate written instrument. When the SPD is the plan’s only plausible written instrument, it can be assumed at the SPD is the written instrument. ERISA does not require written instruments to set forth complex procedures so the SPD’s minimal discussion of the Plan’s funding is sufficient to satisfy ERISA’s requirements.